2. The suit was brought by Gourilal for pre-emption of a house sold by Mahadeo, who was also made a defendant, to Kanhiya Lal. The house was in the city of Jaipur. The suit was based on vicinage, though the learned Munsif says in his judgment that the plaintiff was Shafi-e-Sharik. Kanhaiyalal opposed the suit, and the main point put forward on his behalf was that the plaintiff had no right of pre-emption. We nead not mention the other points which were also subject-matter of certain issues as learned counsel for the appellant has not raised those points before us.

3. The Munsif decided that the plaintiff had a right of pre-emption, and decreed the suit on the 12th May, 1948. Then there was an appeal to the District Judge, Jaipur City, which was dismissed on the 13th of December 1948. Then followed the present second appeal, which was filed in the High Court of the former State of Jaipur, and came to his Court when it was established in 1949.

4. Learned counsel for the appellant has urged only two points before us In the first place, he contends that as the sale made by Mahadeo in favour of Kanhaiyalal was not a voluntary sale, no right of pre-emption whatsoever arises in such a case. Secondly, it is urged that, as held by this Court in Panch Gujar Gaur Brahmans vs. Amar Singh(l), right of pre-emption by vicinage is no longer available after the 26th of Jan., 1950. and therefore this appeal should be allowed.

5. We shall take the point relating to voluntary sale first. The facts in this connection are that Mahadeo executed an agreement to sell this house to Kanhaiyalal. He did not, however, carry out the agreement, and Kanhaiyalal, therefore, filed a suit for specific performance of the agreement. This suit was decreed in October, 1944, and the appeal that Mahadeo filed against it failed. Thereupon, there was execution, and the sale deed was executed by the Munsif on behalf of Mahadeo in favour of the appellant on the 29th of July. 1946. It is this sale deed which in the basis of the present preemption suit.

6. The contention on behalf of the appellant is that there was no voluntary sale by Mahadeo in favour of Kanhaiyalal, and that the right of the pre-emption under the Mohammedan Law only arises in cases of voluntary sales. Learned counsel has relied on a number of authorities in this connection to show that in cases of court sales in execution proceedings, no right of pre-emption has been held to arise Before, however, we review these authorities, we would like to consider how pre-emption has been defined by commentators on Mohammedan Law.

7. In Mullas Principles of Mohammedan Law, 13tn Edition, page 209, pre-emption has been defined in paragraph 226 as—

"The right of Shufaai or pre-emption a right which the owner of an immovable property possesses to acquire by purchase another immovable property which has been sold to another person."

This definition is based on Baillics translation of the Hidayat. It may be noted that there is no mention of a voluntary or an involuntary sale here, though of course normally a sale would take place voluntarily.

8. In Wilsons Anglo Muhamadan Law, 6th Edn., p. 387, the right of pre-emption is defined as "a right to acquire by compulsory purchase, in certain cases, immovable property in preference to all other persons." This is elaborated at page 392 where the following appears —

"When a Muhammadan...........has contracted to sell any immovable property or his share in any immovable property the right to be put in the place of the vendee on tendering to him the price which he had contracted to pay to the vendor belongs to certain persons which is not necessary for our purposes to specify.

This exposition would suggest that the right arises when there is a contract to sell, though of course, it can only be exercised when the sale is complete.

9. In Tyabjis Mohammedan Law, third edition, p. 662, pre-emptor h