LAWS(PVC)-1925-5-94

HUSAIN BAKSH Vs. MMAHFUZUL HAQ

Decided On May 18, 1925
HUSAIN BAKSH Appellant
V/S
MMAHFUZUL HAQ Respondents

JUDGEMENT

(1.) The plaintiff-respondent sued for pre-emption under the Muhammadan Law in respect of a house situated in Sabaranpur city which was sold by lit. Habib-un- nissa to Husain Bakhsh on the 9 January, 1920, the house of the plaintiff stands to the North of the house in dispute. The allegation of the plaintiff was that two parnalas of his house discharged water into the inner court-yard of the house sold; that there was a joint wall between the two houses, and that there was also a plot of land lying in front of the doors of the two houses, which was used as a common pathway, closed on one side, and belonging to the persona whose houses opened towards that lane the vendor and the vendees are Shias. They denied that the plaintiff was a co-sharer in the property sold or in any pathway appertaining to it or that the plaintiff had any right to claim pre-emption. The Court of first instance found that the plaintiff was not entitled to pre-emption as he had no joint interest in any portion of the property sold and there wag no joint wall standing between the two houses nor any joint pathway belonging only to these two tenements. The lower Appellate Court, however, held that although there was no joint wall or other joint interest held by the parties in the house in question, there was a blind passage in front of the doors of the houses of the parties, which was common to all the houses existing there, and inasmuch as that passage was sold along with the house in question, the plaintiff as a sharer in the passage was entitled to claim pre-emption in respect of both.

(2.) The defendant vendee appeals and his contention is that the plaintiff is not entitled to pre-emption, firstly, because there was no joint passage belonging to the houses of the parties, and, secondly, because no right of preemption could be enforced as the property was not divided property and the common passage was owned by more than two parsons having houses opening towards it.

(3.) The right of pre-emption under the Shia Law is of a much more restricted character than that allowed under the Hanafi law. According to the Shia law shufa is the legal title of one partner (sharik) in the joint property to the share of another partner (sharik) therein in the event of its transfer by sale, and as stated by Baillie, a right of pre-emption can only be claimed under that law by a person who is a partner of a share in the joint and undivided property (Baillie's Muhammadan Law, p. 179).