NURI MIAH Vs. AMBICA SINGH

JUDGEMENT

(1.) In this case the action was for pre-emption. The suit was dismissed by the Court of first instance on the 16th of January 1914. But on appeal to the District Judge, that decision was reversed, and the District Judge decreed the suit, holding as a matter of fact that the ceremonies had been duly performed, that the defendant-purchaser was not a co-sharer and that the property was joint property at the time of the institution of the suit. From that, the defendant appealed to the High Court, and that appeal was dismissed by the two learned Judges who constituted the Bench on that occasion See 32 Ind. Cas. 893-Ed. Then a Rule was obtained by the defendant calling upon the plaintiff to show cause why that judgment should not be reviewed upon three grounds, the main ground being that the conditions which were necessary to give a right to the plaintiff to preeruption did not exist at the date of the decree and that is the point which has been mainly argued, and, if I may say so, very well argued by the learned Vakil for the plaintiff on this occasion. In order to appreciate the point it is necessary to state three or four facts. One Bansidhar sold his interest in the property on the 12th of July 1912 to the 1st defendant whose name was Nuri Miah, and at that time there were partition proceedings pending. On the 8th of October 1912, the plaintiff instituted the present suit to assert his right of pre-emption. The partition proceedings were completed on the 2nd of December 1913, by reason of the issue of the notice under Section 92 of Estates Partition Act. The first decree in this suit, as I have already-mentioned, was on the 16th of January 19 4, after the date when the partition proceedings were completed. In that decree the defendants succeeded and it was not until the 7th of April 1914, when the District Judge s decision was given that the plaintiff got his decree for preemption. I do not think it matters which of the dates is taken, whether the 16th of January 1914, or the 7th of April 1914, because both of them are subsequent to the 2nd of December 1013, when the partition proceedings were completed. Rule No. 326 of 1916.

(2.) Now, the point taken by the learned Vakil on behalf of the defendants is that in such a case as this, namely, in a suit for pre-emption, the right of the plaintiff to get pre-emption must exist not only at the time of the sale, but also at the time of the institution of the suit and finally up to and at the date of the decree. The principle is thus stated in Sir R.K. Wilson s Digest of Anglo-Muham-madan Law, at page 400: "The co-sharer-ship participation in appendages, or ownership of contiguous property, as the case maybe"-this being a case of co- sharership - must not only exist at the time of the sale which gives rise to the claim of preemption, but must continue to exist down to the time when the suit is instituted, and (it seems) even down to the decree." Of course, that is not an authority, and I do not refer to it as an authority, but I only refer to it for the purpose of stating what is considered by the text writers as the principle. The question remains whether that principle is right.

(3.) Now, both on the ground of principle and also by reason of the authorities to which M. Roy Chowdhury has very rightly drawn our attention, although some of them are, in my opinion, directly against him, I think this Rule must be made absolute. The principle, I think, cannot be better stated than it is in the case of Tafazul Husain v. Than Singh 6 Ind. Cas. 426 : 32 A. 567 :7 A.L.J. 715, where the judgment was given at page 570 Page of 32 A.-Ed. That was a case in which partition proceedings had taken place, and at the time of the decree the property was no longer a joint property. The learned Judges said there: "We think that the decisions of the Courts below were correct. The plaintiff s right was based upon the fact that he was partner with the vendor. To quote Hamilton s Translation of the Hedaya, shafa relates to a thing held in joint property and which has not been divided off. The right of shafa is founded on a precept of the Prophet who lad said, the right of shafa holds in a partner who has not divided off and taken separately. " I pause there to say, that I think that is the principle which applies to this case; the plaintiff s right was based upon the fact that he was a partner with the vendor; at the time of the sale he was a partner with the vendor; at the time of the institution of the suit he was a partner with the vendor; but at the time the decree was made, in 1914, the joint property had ceased to exist, for the property had been divided into different shares which had become the separate property of the individuals who were entitled to the shares under the partition proceedings; and it seems to me it would be impossible to make a decree upon the basis upon which the plaintiff s claim was put forward in this action. Then the learned Judges went on to say: "Having regard to what has happened, the plaintiff s property has been divided off. He is no longer a partner with the vendor. It is argued that inasmuch as the plaintiff was a partner at the time of the institution of the suit, it, therefore, does not matter that a partition has since taken place, particularly if the plaintiff was not the person who sought partition. Evidently the plaintiff did feel that if he had prosecuted the partition, it would be fatal to his suit, and this perhaps explains why he withdrew from the application for partition which he himself made in the first instance. It is expressly laid down in the Hedaya, Chapter IV, Book 38, that it is a condition that the property of the shaft, remain firm until the decree of the Qazi be passed; and for this reason if the shaft previous to the decree of the Qazi sell the house from which he derives his right of shafa the reasons or grounds of his right being thereby extinguished, the right itself is invalidated. Applying the same principle to the present case, plaintiff s right of shafa was founded upon the fact that he was a partner, that is to say, a co-sharer in the mahal. He has ceased to be such co-sharer. Therefore, the reasons or grounds of his right had been extinguished before the decree of the Court, and, therefore, the right itself is also extinguished." I think that those words apply distinctly to this case, and I propose to follow the decision in that case and also to say that in my judgment that decision is based upon sound reason and principle, and, therefore, I think this Rule must be made absolute. Appeal No. 1107 of 1914.