JUDGMENT

N.R. Chatterjee, Ag. C.J.

1. The question referred to the Special Bench is whether under the Mahomedan Law one co-parcener has any right of pre-emption where another co-parcener happens to be the purchaser.

2. The question was decided by a Full Bench of this Court in the negative in the case of Lalla Nowbut Lall v. Lalla Jewan Lall [1879] 4 Cal. 831. Since then the Allahabad High Court and a Full Bench of the Bombay High Court have taken the opposite view, and having regard to the original authorities on the point which were not placed before the Full Bench in Lalla Nowbut Lall's case [1879] 4 Cal. 831, a Division Bench of this Court was of opinion that the Full Bench decision should be reconsidered, and hence this reference to the Special Bench.

3. In the case of Lalla Nowbut Lall v. Lalla Jewan Lall [1879] 4 Cal. 831. Garth, C.J., delivering the judgment of the Full Bench said:

There appears to be no reason, either upon principle or authority, why the right of Shaffa should exist as between co-parceners; and the rule as laid down in Hamilton's Hedaya, Vol. 3, Bk. 38. Chap. 1 appears to have been misunderstood in this respect. That rule merely prescribes that any one partner (or co-parcener) of a property has a right of shaffa as against a stranger, who purchases a share from his co-partner, and does not mean, that the right exists as between co-partners who may purchase shares from one another. The object of the rule, as explained in that chapter, and in Chap. 3, is to prevent the inconvenience which may result to families and communities from the introduction of a disagreeable stranger as a co-parcener or near neighbour. But it is obvious that no such annoyance can result from a sale by one co-parcener to another. The only result of such a sale would be to give the purchaser a larger share in the joint property then he had perhaps larger than the other co-parceners have.

4. But the Hedaya nowhere says that that the right of pre-emption can be exercised only against a stranger and not against a coparcener who also can claim as a pre-emptor. On the other hand there are indications in it to show that one coparcener can claim pre-emption against another. In Vol. 3, Book 38, Chap. 1 (See Hamilton's Hedaya, Grady's 2nd edition, page 549) it is laid down that:

when there is a plurality of persons entitled to the privilege of shaffa the right of ali is equal.

The argument of our doctors is, that the parties being all equal with respect to the principle on which their right of shaffa is grounded (namely a conjunction with the lands sold) they are all consequently equal in the right itself.

5. In follows from these passages that all co-parceners have got equal rights to shaffa. To hold that one co-parcener has no right of pre-emption against another would be to deny him the right of equality and would be a violation of the Hedaya rule that the rights of all are equal. It seems that it is only in conformity with this rule of equality that the Hedaya says (page 549):

If some of the partners happen to be absent the whole of the shaffa is to be decreed equally amongst those who are, present, for it is matter of uncertainty whether those who are absent would be inclined to demand their right; and the rights of those who are present must not be prejudiced on a mere uncertainty. If, however, the Kazee should have decreed the whole of the shaffa to one who is present, and an absentee afterwards appear and claim his right, the Kazee must decree him his half; and so likewise if a third appear, he must decree him one-third of the shares respectively held by the other two; in order that thus an equality may be established amongst them.

6. It appears, therefore, that the Hedaya supports the right rather than negatives it. ON the other hand, the other authorities are distinctly in favour of such right. They are all collected in the case of Amir Hassan v. Rahim Bakhsh [1897] 19 All. 466. The learned Judges referred to passages, and quoted the origina