Judgement

Appeal (No. 149 of 1919) from a judgment of the High Court (February 5, 1917) affirming a judgment of the Additional First Class Subordinate Judge of Thana.

The suit was brought by the original plaintiff in 1909 claiming a declaration that he was entitled under Mahomedan law to a right of pre-emption of a one-fourth share in two villages in the Kolaba District in the Bombay Presidency. The plaintiff died before the Subordinate Judge settled the issues in the suit, and the present respondent, the administrator of his estate, was permitted by the High Court to continue the litigation.

The facts, which were not in dispute upon the appeal, are stated in the judgment of the Judicial Committee, and more fully in a report of the proceedings in the High Court at I. L. R. 41 B. 636.

Law. Rep. 48 Ind. App. 475 ( 1920- 1921) Sitaram Bhaurao Deshmukh V. Jiaul Hasan Sirajul Khan

235

The High Court, affirming the decree of the Subordinate Judge, held that the plaintiff had a right of pre-emption.

The reasons of the learned judges (Sir Basil Scott C.J. and Beaman J.) appear from the report above mentioned.

1921. May 6, 9. Sir George Lowndes K.C. and Parikh for the appellant. Both Courts in India found that the right of pre-emption, if any, was governed by the Hanafi school of Mahomedan law. Therefore, on the death of the original plaintiff the suit abated, for the right was a personal one and did not survive to his administrator. If however the suit did not abate it was not maintainable. It is well established that the principle of pre-emption does not form part of the general law applicable in the Bombay Presidency. In any case it has no application upon a sale to a Hindu Furman Khan v. Bhurut Chunder Shah Chowdhry. (( 1870) 13 Suth. W. R. (F. B.) 21, 23.) The High Court recognized that the Mahomedan principle of pre-emption did not of itself govern the transaction, but decided on the basis of a contract. That decision was erroneous, (1.) because, even if the offer contained in the letter of October 14, 1908, was accepted by the deceased plaintiff, the appellant was not a party to the contract so made, and (2.) because the offer was not accepted according to the conditions subject to which it was made. The suit was brought to enforce a right arising under Mahomedan law, the plaintiff having failed to establish that right could not validly proceed upon the basis of a contract. The sale was not a complete and absolute sale at the time when the ceremonies were performed. In Mahomedan law a right of pre-emption does not arise until all interest of the vendor in the property has ceased to exist Jadu Lal Sahu v. Janki Koer. (( 1908) I. L. R. 35 C. 575, 577, 578.) Further, s. 54 of the Transfer of Property Act, 1882, was superimposed upon the Mahomedan law, and precludes the present claim. The Mahomedan law of vendor and purchaser is not a part of Mahomedan law which has been adopted by the Courts in British India Mahomed Bey Amin v. Narayan Meghaji. (( 1915) I.

L. R. 40 B. 359, 363, 364.)

[Sir John Edge referred to Begam v. Muhammad Yakub. (( 1874) I. L. R. 16

A. 344.)]

De Gruyther K.C. and E. B. Raikes for the respondents were not called upon.

The judgment of their Lordships was delivered by

VISCOUNT HALDANE. In this case several points have been referred to in the course of the argument which, if they arose, would be of great importance; but in the view their Lordships take, these points do not arise, and they therefore find themselves in a position to intimate at once the advice which they will tender to His Majesty.

The suit in which the question arises was brought by the original plaintiff, who was the father of the present respond ent, as administrator, to recover from the appellants a quarter undivided share in two villages, on the ground that the original plaintiff was entitled to a right of pre-emption in regard to them under Mahomedan law. The question is whether the original plaintiff had such a right of preemption. The case