ABDUL AJIJ Vs. KHAIRUNNISA BEGUM

JUDGEMENT

(1.) THIS is an appeal against an order of remand passed in a pre-emption suit. The defendants are the applicants here. The non-applicants as the plaintiffs in the suit asked for pre-emption of 3 pies' share in pattis Nos. 1 and 3 of mouza Shirpur. They alleged that as co-sharers of these pattis they were entitled to claim pre-emption.

(2.) ONE of the objections raised was that the Mahomedan law of pre-emption does not apply to the Central Provinces. This objection was accepted by the trial Judge, who held that the Mahomedan law of pre-emption is not applicable in this Province. The decision of the learned Civil Judge on this point is so brief that it can be quoted here: The plaintiff cited no rulings before me to show that Mohamedan law of pre-emption is any substantive law in this Province. It could be applied, however, for conisderations of justice, equity and good conscience. Mulla has given illustrations under Section 181 of Mohamedan Law to illustrate in which cases law-of pre-emption can be applied. None of those illustrations relate to village shares. It appears to me that the law of pre-emption under the Mohamedan law is no substantive law of this Province, and I hold accordingly. Earlier the learned Judge held that the plaintiffs were not co-sharers or shafi-i-sharik. The reason given was that the share was separately recorded in favour of defendant 5.

(3.) IN this appeal several grounds were urged but before me the arguments were limited only to the question whether the Mahomedan law of pre-emption applies to Mahomedans in this Province. There are two old cases of the Judicial Commissioner's Court in which this point was considered, and it was held that the law of pre-emption applies to this Province provided all the parties, viz., the vendor, the vendee and the pre-emptor, are Mahomedans, These cases are Mt. Sahibbee v. Bannoo Mian 2 C.P.L.R. 231 and Abdul Razah v. Jagoba 7 C.P.L.R. 117. No ruling to the contrary was cited by the applicants. It would appear that it was the duty of the learned Civil Judge who tried this case to follow these rulings of the Judicial Commissioner's Court.