WAJID ALI Vs. SHABAN

JUDGEMENT

(1.) This appeal arises out of a suit for pre-emption brought by the appellants Wajid Ali and Ali Ahmad in respect of a sale made in favour of the first respondent on the 8 of July, 1905. On that date Ali Ahmad, plaintiff, was admittedly not a co-sharer in the village. His grandfather, Bakht Ali, was alive at the time and owned a share, which after his death devolved on. Ali Ahmad by right of inheritance before the institution of the suit. It is by virtue of the ownership of this share that. Ali Ahmad claims pre-emption. Those being the facts, two questions arise for consideration: first, whether Ali Ahmad has a right of pre-emption, he being a person who was not a co-sharer in the village at the date of the sale but became a co-sharer; by right of inheritance before the institution of the suit; and secondly whether Wajid Ali by associating Ali Ahmad with himself in bringing the suit, forfeited his own right of pre-emption, if he had any?

(2.) As there is a conflict of rulings on the first point, the case was referred to a Full Bench. In Muhammad Yusuf Ali Khan V/s. Dal Kaur (1897) I.L.R. 20 All. 148 it was held that in a case not governed by the Muhammadan Law a person who was not a co-sharer in the village at the date of the sale but had subsequently acquired a share could claim pre-emption. Following this ruling it was held in Kaunsilla Kunwar V/s. Gopal Prasad (1906) I.L.R. 28 All. 424 that the successor by right of inheritance of a person who had the right of pre-emption at the date of the sale, was not debarred from suing to enforce that right by the fact that his predecessor had not done so. The contrary view was held by Burkitt, J. in the unreported case of Kedar Nath V/s. Chunni Lal S.A. No. 1128 of 1901 decided on 10 January 1907, which was also a case in which the plaintiff pre-emptor did not own a share in the village at the date of the sale but subsequently acquired a share by right of inheritance. The claim of the plaintiff was dismissed. In Sheo Narain V/s. Hira (1686) I.L.R. 1 All. 536 a Full Bench of five Judges held that "where there is a right of pre-emption under the wajib-ul-arz which a share-holder could claim and enforce in respect of a sale of property, a person purchasing the share-holder's interest in the village subsequently to the sale cannot claim and enforce pre-emption as his vendor might have done." Mr. Abdul Majid, the learned Counsel for the appellants, has conceded that there is no distinction in principle between the case of a pre- emptor who has purchased a share subsequently to the 6ale sought to be pre- empted and that of one who has acquired a share by right of inheritance. I think it is impossible to draw any distinction between the two cases. In the case of a pre- emptor who has acquired the pre-emptive tenement by purchase the Full Bench ruling is binding on the Court, as it has not been reversed by higher authority or dissented from by a later Full Bench. Besides, having regard to the inconveniences and anomalies referred to in the judgment of Mahmood, J., in that case, it cannot be held that a pre-emptor of that description can maintain a claim for pre- emption. Similar inconvenience and anomalies would also arise in oases in which the pre-emptor did not own a share at the date of the sale but subsequently became a co-sharer in the village by right of inheritance. At the time when he acquired a share the vendee had already become a co-sharer in the village and therefore the pre-emptor had no priority over the. vendee and was not entitled to oust him. The rule of pre-emption is a rule of substitution the pre-empt or being substituted for the purchaser. The person to be substituted must necessarily be a person to whom at the time of the sale the property should have been offered for purchase and who was entitled to take the place of the purchaser. In the present case the custom recorded in the wajib-ul-arz is to the effect that if a co-sharer sells his share the different classes of persons mentioned 4n that document would in their order have a preferential right to purchase, and the property should be sold to them. This requirement could not be fulfilled unless at the date of the sale persons answering to the description of those mentioned were in existence. It follows that a person who had no right of pre-emption at the date of the sale, but acquired a right subsequently to the sale, is not entitled to claim pre-emption in respect of it. It is urged, that the right of pre-emption is a right running with the land and therefore whoever acquires the land acquires the right of preemption. As to this argument, it may be observed in the first place, that in every case of pre- emption under a custom entered in the wajib-ul-arz the right does not arise from the ownership of land, for example, where a brother or other relative who is not a co-sharer has the right to pre-empt. In the next place, it seems to me that when we talk of pre-emption running with the land what is meant is, that the land sold is subject to the right of preemption of a person who has such right at the date of the transfer in respect of which the right is claimed. It does not follow that the right devolves by inheritance. As has been already stated, a Full Bench of this Court has held that the right does not pass to a purchaser from the person who possessed it. In my opinion the principle which applies in the case of a purchaser equally applies in-the case of devolution of interest by inheritance. We must there fore hold that a person who had no right of pre-emption at the date of the transfer in question cannot acquire that right by reason of his subsequently inheriting the property of the person who had the right, hut did not seek to enforce it. As the appellant, AH Ahmad, had no right of pre-emption when the property in suit was sold, he is not entitled to claim pre-emption in respect of that sale and his suit has in my opinion been rightly dismissed.

(3.) The second question, as to the forfeiture of the right of the other plaintiff if he had any, is not free from difficulty. It has been consistently held in this Court that a person having the right of pre-emption who associates with himself a stranger to the village thereby forfeits his own right of pre-emption. The reason for the rule is that by joining a stranger he seeks to do that which it is the object of his suit to prevent, and thus attempts to violate the pre-emptive right, see Bhupal Singh v. Mohan Singh (1897) I.L.R. 19 All. 324. Under the principles of justice, equity and good conscience which we have to administer in cases of preemption, this rule would certainly apply in cases in which the person joined in the suit is a stranger to the co-parcenary body and has no co-parcenary interest or has only a defeasible interest. The question, however, is whether it should be applied in a case in which the person associated is a member of the co-parcenary body and has a complete and indefeasible interest as co-sharer, but does not possess the right of preemption. In my judgment the rule should not be applied in such a case. I do not think that any hard and fast rule should be laid down, and it seems to me that each case should be judged with reference to its own peculiar circumstances. The word stranger has, no doubt, been held to be a correlative to the word pre- emptor and to denote a person who has no right of pre-emption. But there is no legislative enactment or any other direct provision of law which lays down that the association of a stranger with a pre-emptor entails a forfeiture of the right of the latter. The forfeiture has been held to be incurred either on the ground of estoppel, as in the case cited above, or on the ground of equitable acquiescence, as held in Bhawani Prasad V/s. Damru (1882) I.L.R. 5 All. 197. The object of preemption is to exclude from the co-parcenary body a person who does not belong to that body and is entirely outside it and is in that sense a stranger. In almost all the cases in which it was held that a person possessing the right, of preemption forfeits it by joining a stranger the person joined was a stranger to the co-parcenary body and a total outsider, The particular question before us does not appear to have been decided in any of the cases to which our attention has been invited. Having regard to the object of pre-emption the joining of a person, who at the time of the institution of the suit is as much a co-sharer as any one else, cannot, as it seems to me, be regarded as an attempt to defeat that object and to violate the rule of pre-emption. I fail to see on what equitable principle it can be held that a plaintiff who possesses the right of pre-emption forfeits it in a case like this. In Chotu V/s. Husain Bakhsh Weekly Notes 1893 p. 25, it was held that the mere joining by a person having a right of pre-emption, of persons who have an equal right of preemption but have not qualified themselves according to the Muhammad an law to enforce it, and who are not strangers, will not disentitle the person entitled to maintain a suit for pre-emption if he had sued alone from maintaining a suit brought by him so far as he himself is concerned. In that case pre-emption was claimed by several persons, one of whom, Chotu, only had performed the preliminary demands required by Muhammadan law. The other plaintiffs were persons who, if they had complied with the requirements of that law, would have been entitled to maintain a suit for pre-emption. Those plaintiffs therefore had no right of pre-emption. The learned Judges, Edge, C.J., and Aikman, J., held that Chotu had not forfeited his right of pre-emption by joining with him the other plaintiffs in bringing the suit. That was, no doubt, a case under the Muhammadan law, but the principle laid down is equally applicable to all suits for pre-emption, whether brought under that law or not. This ruling, therefore, supports the view that a person having a right of pre-emption does not forfeit it by associating with himself a person who is a member of the co-parcenary body but does not possess the right of pre-emption. If the plaintiff Wajid Ali has the right of pre-emption he has not, in my opinion, lost that right by joining with ?him the other plaintiff Ali Ahmad and the court below was wrong in dismissing his claim without trying the other questions raised in this appeal in that court. I would remand the case for the trial of those questions, but would dismiss the appeal and claim of Ali Ahmad, plaintiff. Richards, J.