MUHAMMAD YAKUB Vs. KANHAI LAL

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for pre-emption of a house sold by a Hindu vendor. The claim was based on an alleged custom embodying the rules of Muhammadan law. The plaintiffs are shafi khalit as well as shafi-jar of the vendor; and the vendees are shafi khalit. Thus the plaintiffs and the vendees both come in the second class, and the plaintiffs also come in the third class of pre- emptors. The court of first instance framed seven issues, but dismissed the claim on the sole ground that both the plaintiffs and the vendees being of equal status the suit was not maintainable. The lower appellate court, relying on the case of Amir Hasan V/s. Rahim Bakhsh (1897) I.L.R. 19 All. 466, was of opinion that that ground was insufficient for the dismissal of the whole suit, and remanded the case for disposal of the other issues. The defendants have come up in appeal to this Court and challenge the finding of the lower appellate court. The plaintiffs have filed cross-objections and urge that they have a preferential right as against the defendants.

(2.) The cross-objections can be disposed of at once. The plaintiffs and the vendees both come in the second class as shafi khalit. The fact that the plaintiffs are also shaft-jar and come in the third class cannot give them any preferential right over the defendants. The cross-objections are, therefore, without any force, and the whole suit cannot be decreed.

(3.) As to the appeal the position is this. Neither of the courts below have found whether any custom of pre-emption exists or what that custom is. We do not know whether under such a custom the whole of the Muhammadan law is applicable or not. As the incidents of this alleged custom have not yet been found, we must assume in favour of the plaintiffs that the whole of the Muhammadan law applies, though of course when facts have be gone into this may not necessarily be the case.