HAMEDMIYA BADAMIYA SAHEB Vs. JOSEPH BENJAMIN

JUDGEMENT

(1.) In this case the plaintiff, a Mahomedan, sues to enforce his right of pre emption against the defendant, a Bene Israel. The vendors are also Mahomedans being the brothers of the plaintiff himself. The question, therefore, in this case is whether the general Mahomedan law of pre-emption can be enforced against a Mahomeden Israel, the defendant vendee in Ahmedabad. Both the lower Courts held that the plaintiff has not proved the right to pre-empt.

(2.) The property in suit is an open land about 30 feet by 45 feet adjoining the plaintiff's land. It is urged on behalf of the appellant that the right of the plaintiff to pre-empt is an incident which the custom of pre-emption attaches to the property in Ahmedabad, and the purchaser, even though a non-Mahomedan, is bound by the Mahomedan law in the matter, and cannot be permitted to evade the conditions and obligations under which the property is held, and reliance is placed on the Full Bench ruling of the Allahabad High Court in Gobind Dayal v. Inayatullaha (1885) I.L.R. 7 All. 775, f. b. It is further urged that the custom of pre-emption is established as prevailing in Ahmedabad since 1823 and reliance is placed on the cases of Gordhandas Girdharbhai V/s. Prankorm (1869) 6 B.H.C.R. 263; Rewa V/s. Dulabhdas (1902) 4 Bom. L.R. 811; and Motilal Dayabhai V/s. Harilal Maganlal (1919) I.L.R. 44 Bom. 696, s. c. 22 Bom. L.R. 806, and that the right of pre-emption is enforceable irrespective of the persuasion of the parties concerned according to the ruling of the Privy Council in Jadu Lal Sahu V/s. Janki Koer (1912) I.L.R. 39 Cal. 915, 922, s. c. 14 Bom. L.R. 436, p. c. On the other hand it is contended that the law of preemption applies to Mahomedans and by custom to Hindus in Surat and Broach, and even if it be held as applicable to the city of Ahmedabad, it can affect only the Hindus and Mahomedans and would not apply to the defendant a Bene Israel unless it was proved that the defendant was bound by the law of preemption by custom, that no custom affecting defendant Bene Israel has been alleged in the plaint much less proved in the case, and that the law of pre-emption is not an incident relating to the property, and reliance is placed on the Full Bench decision of the Calcutta High Court in Sheikh Kudratulln V/s. Mahini Mohan Shaha (1869) 4 Beng L.R. (F.B.) 134.

(3.) In Digambar Singh V/s. Ahmed Said Khan (1914) L.R. 42 I.A. 10, s. c. 17 Bom. L.R. 393 their Lordships of the Privy Council, having described the genesis of the Mahomedan law of pre-emption, have observed (p. 18): A custom of pre-emption was doubtless in all cases the result of agreement amongst the shareholders of the particular village, and may have been adopted in modern times and in villages which were first constituted in modern times. Bights of pre-emption have in some provinces been given by Acts of the Indian Legislature. Rights of pre-emption have also been created by contract between the sharers in a village. But in all eases the object is as far as possible to prevent strangers to a village from becoming sharers in the village. Rights of pre-emption when they exist are valuable rights, and when they depend upon a custom or upon a contract, the custom or the contract, as the case may be, must, if disputed, be proved.