VITHALDAS KAHANDAS SONI Vs. JAMIETRAM MANEKLAL

JUDGEMENT

(1.) In this case there were four houses in one courtyard, and of these two belonged to the 1st defendant in the suit, and one to the plaintiff . The 4th" house was sold by the 2nd defendant in the suit to the 1st defendant, and thereupon the plaintiff filed this suit to obtain a deed of conveyance of the suit house from the 2nd defendant by right of pre-emption. The suit was dismissed in the first Court on the ground that the plaintiff had not established that he had proved that he had performed the necessary ceremonies without undue delay. In first appeal the decree was reversed. The learned Judge held that the plaintiff was entitled to get half the property from the 1st defendant. When the case was argued before us on second appeal, we were prepared to accept the decision of the first appellate Court, following the decision in Amir Hasan v. Rahim Bakhsh (1897) I. L. R. 19 All. 466. But before the judgment was signed, we were referred to the case of Gokaldas v. Partab where the opposite view had been taken, and it was, therefore, necessary that the case should be argued before a Full Bench. We see no reason why the decision which we had come to on the first occasion should not be confirmed. In Gokaldas v. Partab the learned Judges considered the conflict between the ease of Lalla Nowbut Lall v. Lalla Jewan Lall (1878) I.L.R. 4 Cal. 831, F.B. and Amir Hasan v. Rahim Bakhsh and they considered that it was safer to follow the ruling which commended itself to the Calcutta Full Bench. Although they mention that the authorities showed that in this Presidency it has not been the custom to enforce the doctrine of pre-emption & to the extent allowed in Allahabad, no eases were referred to. The decision of the learned Judges seems to proceed on the basis that it would cause serious practical inconvenience, and in many cases even injustice, if the right of pre-emption were to be exercised in fractions. Now it is admitted that the parties in this case come from the District of Bulsar where the Hanati school of Mahomedan law prevails, and it must further be admitted that according to Hanafi law neighbours have equal right to pre-empt. It must follow from that, that the plaintiff in this case must succeed unless we are prepared to decide the case, not according to Hanafi law, but according to some other principle. It has been suggested that we must only apply Mahomedan law where it is in accordance with the principles of justice, equity and good conscience. Admitting that, for myself I see nothing which is contrary to the principles of justice, equity and good conscience in allowing two neighbours who have equal rights of pre-emption to exercise them.

(2.) If A and B are neighbours with equal rights to pre-empt is the case of the sale of a neighbouring house, I do not see why if B happens to be the first purchaser A should be deprived entirely of his right to pre-empt. In fact, the only ground on which we can decide not to follow the principle of the Hanafi law, would be on the ground of inconvenience. It may be said that it is not desirable that property should be held in fractions. That may be so on general principles, but certainly in this country it is a most common occurrence. But apart from that, I should not myself say that mere inconvenience resulting from the application of the Hanafi law, is a reason why we should not apply it. In my opinion, therefore, the appeal must be dismissed with costs. The cross-objections are dismissed with costs. Heaton, J.

(3.) I agree that the appeal should be dismissed with costs. We have here the simplest possible case of competitors claiming pre-emption. The original owner of the house, defendant No. 2, sold it to defendant No. 1. The defendant No. 1, and the plaintiff are the only competitors for pre-emption, and it is found that under the law they are equally entitled to pre-empt. A very natural, and on the whole a very just, decision in a 1 competition of this kind is that each should take half. Their claims are equal in the eye of the law. Therefore says the law let them be equally treated, and that is a sufficient and a satisfactory disposal of this case, because defendant No. 2, the vendor, apparently has nothing to say against it, and defendant No. 1, the original purchaser, is apparently prepared to take half rather than get nothing. If he had said, "Oh ! very well if I can only buy half the property I won t buy any at all, I cancel my purchase," then the affairs would have to be differently viewed. I do not wish to express any opinion as to what in that event my decision would be. Kajiji, J.