AJIMTULLA SAHA Vs. JADAVNATH CHAKRABUTTY

JUDGEMENT

(1.) This is an appeal by the plaintiff against a decision of the Officiating Subordinate Judge of Dinajpur confirming a decision of the Munsif of the first Court of that place. The question that arises in the appeal is whether in the case of a sale by a Mahomedan co-sharer of his share to a Hindu the right of pre-emption attaches thereto so that a Mahomedan co-sharer of the vendor can exercise that right as against a Hindu purchaser. The learned Officiating Subordinate Judge has dismissed the appeal agreeing with the decision of the Munsif and considering that the matter was covered by a Full Bench decision of this Court to which I shall presently refer.

(2.) The appeal has been argued before us on behalf of the appellant on the basis that the grounds on which the Full Bench decision Furman Khan V/s. Bhurut Chunder [1869] 4 B.L.R. 134 was based are no longer binding and that the matter is really open. Now, exactly the same question that now arises for our decision arose in that Full Bench case in which three references on the same point were before the Court in the case of Furman Khan V/s. Bhurut Chunder [1869] 4 B.L.R. 134. The Court held by a majority of 3 to 2 that where no local custom exists with regard to pre-emption amongst Hindus, the Mahomedan Law of pre- emption does not apply when the person claiming the right of pre-emption and the vendor are Mahomedans and the purchaser is a Hindu. The principal judgment on behalf of the majority was delivered by Mr. Justice Dwarkanath Mitter and his judgment was really based on the provision of Section 9 to Reg. VII of 1832. The section is set out at page 22 of the report and it is not necessary for me to set out the exact words of the section. The last words in the section, however, provide that the principles of justice, equity and good conscience are to prevail in the cases with which the section deals and Mr. Justice Dwarkanath Mitter considered at some length whether the demand of justice, equity and good conscience made it necessary in a case of that nature to apply the principles of pre-emption as existing under Mahomedan Law and he comes to a conclusion opposite to that, that is to say, he finds that there were no principles of justice, equity and good conscience which compelled him to hold in the case before him that the Mahomedan co-owner is entitled on purchase of a share by a Hindu from another Mahomedan co-owner to exercise the right of preemption. But it was urged before us that that decision must be taken as shaken by a subsequent decision by the Allahabad Full Bench in Govind Dayal v.: Inayatullah [1885] 7 All. 775 and it is further suggested that Section 9 of Reg. VII of 1832 on which Mr. Justice Dwarkanath Mitter relies has been repealed. That is true, for it is repealed by Act VI of 1871 (Civil Courts Act) and there is substituted for that section Section 24 of that Act. This section provides that where in a suit or proceeding it is necessary for any Court under the Act to decide any question regarding succession, inheritance, marriage or caste or any religious usage or institution, the Mahomedan Law in cases where the parties are Mahomedans and the Hindu law where the parties are Hindus shall form the rule of decision except in so far as such law has by legislative enactment been altered or abolished. Then the section concludes that in cases not provided for by the former part of the section or by any other law for the time being in force the Court shall act according to justice, equity and good conscience. It seems to me that there is not very much difference in the two sections except that there is omitted from the second section the actual provision that relates to cases where parties are of different religious persuasions, in which cases Section 9 provides that the principles of justice, equity and good conscience are to prevail. But I do not think that in substance there is any real difference. The first part of Section 24 deals with cases between Mahomedans inter se or Hindus inter se and it does not deal with cases where one party is a Mahomedan and the other Hindu and vice versa. In those cases as under the provisions of Section 9, clearly the principles of justice, equity and good conscience are to prevail and as I have already indicated, Mr. Justice Dwarkanath Mitter points out in the judgment in Furman Khan V/s. Bhurut Chunder [1869] 4 B.L.R. 134 that there was no obligation to apply that doctrine in a case of pre-emption where one party is a Mahomedan and the other a Hindu; nor do I think it possible to say that there has been any alteration effected by Section 37, Act XII of 1887 (Civil Courts Act). The words in that Act are practically identical with the words of Section 24 of Act VI of 1871.

(3.) The result, therefore, is that I do not think that it is possible to say that Furman Khan v. Bhurut Chunder [1869] 4 B.L.R. 134 is no longer binding on us by reason of subsequent legislation having affected the provisions of Section 9 of Reg. VII of 1832. The result, therefore, is that we are bound by the decision in Furman Khan V/s. Bhurut Chunder [1869] 4 B.L.R. 134 unless we think that that decision is wrong and refer it to another Pull Bench for decision. The result is, I think, that the matter is concluded so far as we are concerned by the decision in Furman Khan V/s. Bhurut Chunder [1869] 4 B.L.R. 134. I should add one word with regard to a decision with which we were pressed in the case of Sitaram Bhaurao Deshmukh v. Jiaul Hasan Sirajul Khan [1921] 45 Bom. 1056. The learned vakil who appeared for the appellant referred us to various observations in the judgment of the Judicial Committee in that case in support of his contention in this appeal, but I do not think that that case can be taken in any way as governing the appeal which is now before us. There, there had been an express agreement in the sale by a Mahomedan co-sharer to a Hindu that the property should be offered to the co-sharer and it was so offered and as is stated in the judgment the parties there had agreed, although one was a Hindu, that the principles of pre-emption should be imported into their transaction. It was not necessary, therefore, for their Lordships to decide whether apart from the terms of the particular agreement which was before them the doctrine of pre-emption must be applied in cases like the present where the purchaser is a Hindu and the vendor a Mahomedan. Consequently, I do not think that that case has any bearing on the question which we have now to decide. As I have already indicated so far as this Bench is concerned, the matter is concluded by the decision in Furman Khan V/s. Bhurut Chunder [1869] 4 B.L.R. 134. I am not prepared to say that I disagree with that decision or to refer the matter to another Full Bench for another decision on the question.