9911796707
TMI Blog1885 (2) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ter, in advertence to the terms of Section 24 of Act VI of 1871?" This question presents itself to my mind in two aspects. The first is, whether Section 24 of the Bengal Civil Courts Act renders it imperative on this Court and the Courts subordinate to it to administer the Muhammadan Law in cases of this nature? The second is, what is Muhammadan Law of pre-emption in regard to the point before us? 2. The first of these questions depends upon the construction to be placed on Section 24 of the Bengal Civil Courts Act (VI of 1871). In discussing this, I shall be within the recognized rules of interpretation in reviewing shortly the history of the particular section in question. It is not a new provision of the law. The principle which it embodies was recognized by the British rule at the outset of its authority in this country. The history of the recognition of this principle has been accurately traced by a learned Judge of the Indian Bench, Mr. Justice Field, at pages 169--171 of his valuable work on the Regulations of the Bengal Code. The legislation there described began with the Regulation of the 21st August 1772, which laid down the exact scope of the application of the Hin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd shall be held to apply to such persons only as shall be bona fide professors of those religions at the time of the application of the law of the case, and were designed for the protection of the rights of such persons--not for the deprivation of the rights of others. Whenever, therefore, in any civil suit, the parties to such suit may be of different persuasions, when one party shall be of the Hindu and the other of the Muhammadan persuasion; or where one or more of the parties to the suit shall not be either of the Muhammadan or the Hindu persuasion, the laws of those religions shall not be permitted to operate to deprive such party or parties of any property to which, but for the operation of those laws, they would have been entitled. In all such cases, the decision shall be governed by the principles of justice, equity and good conscience, it being clearly understood, however, that this provision shall not be considered as justifying the introduction of the English or any foreign law, or the application to such cases of any rules not sanctioned by those principles. 3. Such was the law at the time when the celebrated case of Sheikh Kudratulla v. Mahini Mohan Shaha 4 B.L.R. 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable in suits for pre-emption between Muhammadans, not based on local custom or contract, but it is equitable in such suits to apply that law. Here again Spankie, J., adhering to the opinion formerly expressed by him, dissented from the opinion of the majority of this Court. 5. Now, as to the two Full Bench cases, the opinion of the majority of this Court in regard to gift and pre-emption was that, although the Court was, as a matter of fact, bound to apply the rules of Muhammadan Law, it was so bound not by the strict terms of the first part of Section 24, but by the rule of justice, equity, and conscience, referred to in the second part. Spankie, J., on the other hand, held that the law of pre-emption, as of gift, must be applied under the first part of the section, being included under the head of " religious usage or institution." In other words, the majority thought that they might properly let their notions of justice, equity, and good conscience prevail over those of the Muhammadan Law, while Spankie, J., held that the Court was absolutely bound to follow that law. With all due respect to the majority in that case, I cannot help observing that the view expr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cases in which Baillie holds that the Muhammadan Law perforce applies. Then he goes on to say: "Questions then, of gifts, pre-emption, etc., if not governed by Muhammadan Law as expressed clearly in the text of the Kuran, are controlled by religious usages founded on, or institutions enjoined by the oral law or sayings of the Prophet." And in conclusion: "I am of opinion that the proper answer to the reference is, that the suit giving rise to it should be determined by that law (i.e., the Muhammadan Law), and without reference to the principles of justice, equity, and good conscience." 6. Now, although the decision of the majority in that case is binding upon me, I regard the question as virtually reopened by this case, and I must therefore confess that I am unable to agree with it, and my reasons are these: In the first place the Muhammadan Law of gift or pre-emption either is or is not law in the proper sense, by which I mean a rule of conduct binding upon the subjects of the State, and upon the Courts which the State has established. No doubt the opinion of the learned Judges leads to the same result, They also apply the Muhammadan Law, not as a law, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e owners of the property, could deal with it as they liked, and could therefore ratify the act of their ancestor. No Muhammadan is allowed to make a will in favour of any of his heirs, and a bequest to a stranger is allowed only to the extent of one-third of the property. Under these circumstances, to allow the Muhammadan Law of inheritance, and to disallow the Muhammadan Law of pre-emption, would be to carry-out the law in an imperfect manner; for the latter is in reality the proper complement of the former, and one department of the law cannot be administered without taking cognizance of the other. Among Aryan systems, which favour the notion of the inchoate rights of heirs, the rule of primogeniture, the jus representations, and the exclusion of females from inheritance, except in special cases, the property is not so completely split up on the owner's death; but, under the Muhammadan system, upon a man's death, not only his children are entitled to succeed to his property, but also his wife, mother, father, and other heirs, according to well-defined rules; and I myself know of a case in which, after a Muhammadan's death, his property was divided into twenty-three s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngless. Who are necessary parties to an action is a matter governed by the rules of procedure, and in a country like India, where personal laws prevail, it is not an uncommon occurrence that every one of the persons arrayed as parties to the suit belongs to a different race and religion. In such a case, it would be impossible to administer any particular law if the word "parties" in the section meant "parties to the suit," This is obviously the only interpretation which can apply to the administration of Muhammadan Law of inheritance and succession by our Courts. Indeed, cases are readily conceivable in which none of the parties to the suit are Muhammadans, but in which their right, having been derived by transfer or otherwise from Muhammadans, the Muhammadan Law would be the sole rule of decision, because the inception of the rights to be adjudicated upon took place under that law. This can be best illustrated by supposing the case of a Muhammadan who dies leaving a widow, a son, and a daughter, each one of whom conveys his or her share, by gift or sale in the estate of the deceased, to a Hindu, a Christian, and a Parsi, respectively. It is to my mind obvious t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtner or a neighbour to preclude any stranger from coming in as a purchaser, provided the same price be offered as that which the vendor has declared himself willing to receive for the property to be disposed of." Then, after discussing the question whether pre-emption prevailed originally among the Hindus, he goes on to say: "I have found in the Maha Nirvana Tantra, a work which chiefly treats of mythology, a passage which would seem to imply that preemption is recognized as a legal provision according to the notions of the Hindus. But it remains yet to be decided whether this shall be held to be practical law or not." 10. I hope, before ending this judgment, to contribute something to a settlement of the question which Sir W. Macnaghten regarded as undecided, having long taken an interest in the subject of pre-emption, and having considered it my duty to investigate the much-vexed question whether the right existed under the old Hindu Law, and whether the Muhammadans found it existing when they came into India. I may here quote from a very distinguished Sanskrit scholar, Dr. Rajendralal Mitra. After stating that the Smritis, from which the Hindu Law is derived, co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elling their shares to outsiders; but this device never developed itself into a positive law, and the latest digest-writer, the author of the Dayabhaga, in a manner sets it aside by saying that sales of undivided shares are immoral, but valid in law. In so far, the claim to pre-emption in oases where it is most urgently demanded is entirely abandoned. Had there been any authentio law in existence, it would have for certain been cited in some case or other, but there is no record of any such citation. These remarks are certainly not in keeping with the positive rules laid down in the Maha Nirvana Tantra, and quoted in the preface to Macnaghten's Muhammadan Law; but those rules, not having been recognized by any of our current law-books, cannot be held binding or authentic. It has been Dowhere recognized as an authority on law. Nor has it been anywhere quoted in a law digest. Moreover, the Tantra is not by any means an ancient work. The belief is, that the most authentio Tantras number sixty-four, but the name of the Maha Nirvana does not occur among them, and it must therefore be accepted to be of secondary importance, even as a Tantra. My idea is, that the administration of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as an instance of the way in which the Indian commentators used to dispose of obsolete laws. At the same time, it shows clearly that anything approaching to preemption was entirely foreign to the ideas of such an eminent authority as Vijnanesvara the author of the Mitakshara. Nor is there any other trace of pre-emption in the Hindu law-books. The Tantras, generally speaking, have never been recognized as authoritative law-books I any sense of the word.' 12. Adopting the authority of these eminent Sanskritists, there is no doubt in my mind that the question which Sir William Macnaghten regarded as open to doubt is in reality not so, and that there has never been such a right as that of pre-emption recognized by the Hindu Law, though I cannot forget that the rule of that law which prohibits any member of a joint undivided family from selling his share in the joint property without the consent of his co-parceners, aims at a result not dissimilar to that which the Muhammadan Law of pre-emption is intended to achieve. The fact that some of the parties concerned in the present cases are Hindus, need not therefore in itself complicate the question as to the applicability of the Muha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Muhammadan Law makes no distinction between persons of different races or creeds. "A Musalman and a Zimmee being equally affected by principles on which shafa or right of pre-emption is established, and equally concerned in its operation, are therefore on an equal footing in all cases regarding the privilege of shafa." (Hamilton's Hedaya, vol. III, p. 592). What was the effect of this? In course of time, pre-emption became adopted by the Hindus as a custom. I may here refer to an official paper printed in the Revenue Reporter, vol. V, at p. 150, in which it is said that the rule of preemption has been adopted as a custom almost universally throughout these Provinces, even by villages which are purely Hindu. I have already in Zamir Husain v. Daulat Ham I.L.R. All. 110 and in the recent case of Sheoratan Kuar v. Mahipal Koer Ante p. 258 explained my views as to the manner in which this custom has been adopted by the Hindu community. 15. Now, there can be no question that the Muhammadan Law of pre-emption must be administered in cases in which all the parties concerned are Muhammadans, The question is, whether it should be administered in cases in which only the vend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of the Court followed in principle the judgment of Couch, C.J., in Poorno Singh v. Hurrychurn Surmah 10 B.L.R. 117 where it was held that the right of pre-emption arises from a rule of law by which the owner of the land is bound, and that it is essential that the vendor should be subject to that rule of law. 16. I have read these cases carefully, and it appears to me impossible to reconcile them. The most important of them are Sheikh Kudratalla v. Mahini Mohan Shaha 4 B.L.R. 134 and Dwarka Das v. Husain Bakhsh I.L.R. All. 564 in which a Full Bench of the Calcutta High Court and a Full Bench of this Court respectively laid down two propositions, one being, so to say, the converse of the other. Bearing in mind the rules of the Muhammadan Law of pre-emption, it seems to me impossible to hold that both of these decisions can be right. I know that, as a matter of pure logic, it does not follow because a proposition is true, that its converse must be true also; and it is obvious that, as a matter of pure reasoning, if a Muhammadan pre-emptor, cannot enforce pre-emption against a Hindu purchaser, the vendor being a Muhammadan, it does not necessarily follow that a Muhammadan can enfor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other non-Muhammadans would, of course, be governed by the Muhammadan Law, because, as I have already explained the inception of the right and not the array of the parties to the suit must be the turning point of the decision within the meaning of Section 24 of the Civil Courts Act. But because a Hindu is not under that section subject to the Muhammadan Law of pre-emption, he cannot avail himself of any pre-emptive right which that law creates only in favour of those who are subject to its behests. And the reason is simple. The rights and obligations created by that law, as indeed by every other system with which I am acquainted, must necessarily be reciprocal. Then, if a Hindu cannot as a pre-emptor avail himself of the Muhammadan Law of pre-emption in a case where the vendor is a Muhammadan and the purchaser is a Hindu, what reason is there for holding that a Muhammadan pre-emptor can enforce the pre-emptive right where the vendor is a Hindu and the purchaser a Muhammadan? The question was discussed by this Court in the Full Bench case of Chundo v. Hakeem Alim-ood-deen N.W.P.H.C. Rep. 1874 p. 28 and the majority of the Court gave an affirmative answer upon a reasoning which must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he vendor, that if that law provided a rule of pre-emption, the rule should be enforced against the Muhammadan purchaser, whether his law recognized it or not. In such a case there can be no question of the Muhammadan being deprived of a "property which has already become his by the laws of his country." He bought it subject to the rules which governed it in the hands of his vendor, from whom he has derived his title, and the circumstance that he is not a Hindu will not save him from the incidents of the Hindu Law. Indeed, in the case supposed, as the law stands, the Muhammadan purchaser would no doubt be free from a pre-emptive claim at the instance of his Hindu vendor's co-parceners. But he would be free only because the Hindu Law provides no pre-emptive right. He would, however, be liable to something "worse," by reason of that law which governed the property in the hands of his vendor. The sale might be avoided at the instance of the Hindu co-parcener, if the subject of the sale was a share in joint property. And if it can be shown that property in the hands of a Muhammadan is in principle as much subject to the pre-emptive claim of his Muhammadan co-par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hammadan among the parties is the vendee. This is the case now before us, and to the question whether the Muhammadan Law of pre-emption is applicable to such a case, my answer is in the affirmative. But because the authority of Sir Barnes Peacock and Mr. Justice Dwarka Nath Mitter demands the highest respect from me, as from every one else connected with the administration of justice in British India, I feel myself bound, in differing with them, to explain my reasons fully by reference to original texts of the Muhammadan Law of pre-emtion, which I cannot help feeling would have led those eminent Judges to a different conclusion had the texts been accessible in the English language. I make this observation because Sir Barnes Peacock at the beginning of his judgment in the celebrated case of Sheikh Kudratulla v. Mahini Mohan Shaha 4 B.L.R. 134 used expressions which leave no doubt that, even after the case had been argued before him in the Full Bench, His Lordship was inclined to form an opinion similar to that which I have formed in this case, and that he adopted the opposite view in consequence of the opinion which had been "so forcibly and clearly expressed by Mr. Justice Mit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de by Mr. Hamilton about a century ago, under the orders of the Governor-General, Warren Hastings. It was not, however, a translation of the original Arabic text, but of a Persian translation. For that work gratitude is due to Mr. Hamilton, but at the same time I am afraid it has been sometimes the source of mistakes by our Courts in the administration of the Muhammadan Law. Mitter, J. says that he is satisfied by certain passages in this work, that the conclusions at which he arrived were consistent with the Muhammadan Law of pre-emption. I need not quote any more passages from the learned judgment, as I purpose to analyse all the main arguments adopted by the majority--Peacock, C.J., Kemp and Mitter, JJ. The first proposition which those learned Judges laid down was, that the right of preemption under the Muhammadan Law does not exist, before actual sale, because, on the one hand, the pre-emptor has no right of prohibiting the sale, and, on the other hand, the vendor is not bound to offer the property for purchase to the pre-emptor before selling it to the stranger; and they held their view to be supported by the circumstance that the pre-emptor cannot before such sale relinquish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that pre-emption is a right which the owner of certain Immovable property possesses, as such, for the quiet enjoyment of that Immovable property, to obtain, in substitution for the buyer, proprietary possession of certain other Immovable property, not his own, on such terms as those, on which such latter Immovable property is sold to another person. I could easily support every word of this definition by original Arabic texts of the Muhammadan Law itself, but I will confine myself only to such texts as bear immediately upon the main propositions involved in this case. I may, however, observe that the nature of the right, as appears from the definition which I have given, partakes strongly of the nature of an easement--the "dominant tenement" and the "servant tenement" of the law of easement being terms extremely analogous to what I may respectively call the "pre-emptive tenement" and "pre-emptional tenement" of the Muhammadan Law of pre-emption. Indeed, the analogy goes further, for I shall presently show that the right of pre-emption, like an easement, exists before the injury to that right can give birth to a cause of action for a suit-- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the right of pre-emption is the conjunction of the pre-emptive tenement with the pre-emptional tenement, that its object is to obviate the inconvenience or disturbance which would arise by the introduction of strangers, that the right exists antecedently to sale, and that sale is a condition precedent, not to the existence of the right, but only to its enforceability. Mr. Hamilton's translation is sufficiently accurate to indicate these conclusions, and I shall therefore pass on to other books as high in authority as the Hedaya itself. Here is a short text from the Durrul-Mukhtar: "The cause of pre-emption is the contiguousness of the pre-emptor's property with the purchased property, whether by co-parcenership or vicinage." (1) Again, a more explicit passage is to be found in Ami, a commentary upon the Kanz: "The author (of the Kanz) says 'by sale,' which must be referred to his expression, ' pre-emption becomes obligatory.' This would indicate that the cause of the obligator ness of pre-emption is sale, that is the sale of the pre-emptional house, and some have held this very opinion. The correct opinion, however, is that the cause of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... share to whomsoever he pleases, because the Muhammadan Law " nowhere recognizes any right of veto in the pre-emptor,"nor does it impose any "positive legal disability" on the vendor in this respect. This, no doubt, at first sight suggests a distinction in principle between pre-emption and non-apparent easement, such as a right annexed to A's house to prevent B from building on his own land. But the distinction, so far as the question of the origin of right is concerned, is in reality not one of principle, but of detail, arising from the difference in the nature of the occasion demanding the exercise of the right. In the one case, that occasion is sale; in the other, it is building. Now, it is true that in the one case the pre-emptor cannot prevent his co-parcener from selling his property to a stranger, whilst in the case supposed, A could prevent B from building, on his land. But the reason of the distinction is not that the right of the one did not exist before the sale, and the right of the other did exist before the building. The reason is this. The object of the non-apparent easement possessed by A is the beneficial enjoyment of his own property, and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the veto possessed by a member of a joint Hindu family, the right of preemption does not prohibit sale in general regardless of the purchaser, of the amount of the price, and other terms of the contract of sale; and because the right is in its very nature incapable of being asserted or exercised till these matters are definitely ascertained, it follows that a sale, irrespective of the pre-emptor's consent, is not void in law. The pre-emptive right may or may not be asserted or enforced; and it would be absurd to say that that which is only possible should, by a retrospective effect, vitiate that which is certain, namely the sale. This is the manner in which the jurists of the Muhammadan Law have dealt with this point of the rule of preemption, and it is upon very similar grounds that they hold the pre-emptor incapable of relinquishing his pre-emptive right in respect of a sale which has not yet taken place. They would say (and there is ample authority for this statement) that the identity of the purchaser, the amount of the price, and other terms of the sale, the certainty of which is essential, not to the existence, but to the exercise of the pre-emptive right, being still u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isprudence: "A co-parcener is one whose share has not been divided in the property sold. This is universally agreed upon, because it has been related by Jabir that the Prophet decreed pre-emption in respect of every joint undivided property, whether a grove or a house, saying: 'It is not lawful for any one to sell till he has informed his co-parcener who may take or leave it as he wishes; and if he has sold without such information, the co-parcener has a preferential right to the share.' This tradition has been related by Mushini, Abu David, and Aukissai." (1) Two other traditions to the same effect are also to be found in Muslim, which is one of the books of acknowledged authority on Hadis or traditions. I will, however, quote only one of them, as it brings into prominence the difficulty with which I am now dealing: "It is related by Jahir that the Prophet said:--'Pre-emption exists in all joint properties, whether land, or house, or grove. It is not proper for him (the owner) to sell till he has offered it to his co-parcener, who may take or reject it; and if the vendor fails to do this, his co-parcener has the preferential right to it until he is infor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealt with by Muhammadan jurists. I may, however, say that the ultimate reason which prevented them from interpreting these traditions in the sense of creating a legal obligation imposed upon the vendor was, that the language of the tradition being capable of two interpretations, they adopted the more lenient one, acting upon the presumption that a legal obligation does not exist till expressly provided, and that all contracts are lawful unless expressly prohibited by law. The law, therefore, as it stands, does not oblige the vendor to give notice of the projected sale to the pre-emptor, nor does it vitiate a sale executed without his permission. I am not at liberty to interpret the sayings of the Prophet in a sense other than that adopted by the recognized authorities on Muhmmadan jurisprudence. But it is perfectly clear from these traditions that the very conception of pre-emption in Muhammadan Law necessarily involves the existence of the right before the sale in respect of which it may be exercised. All that the interpretation of the Muhammadan jurists' goes to show is, that the sale is not vitiated by the absence of the pre-emptor's consent--an interpretation which, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to sell it, he can make his own terms as to the bargain of sale. That such a result is not only not warranted by the Muhammadan Law of pre-emption, but would positively strike at the very root of the right itself, seems to me to be too obvious to require any explanation. But the Muhammadan Law of pre-emption involves no such anomalous inconsistencies of reasoning, because the right of pre-emption is not a right of re-purchase" either from the vendor or from the vendee, involving any new contract of sale; but it is simply a right of substitution, entitling the pre-emptor, by reason of a legal incident to which the sale itself was subject, to stand in the shoes of the vendee in respect of all the rights and obligations arising from the sale under which he has derived his title. It is, in effect, as if in a sale-deed the vendee's name were rubbed out and the pre-emptor's name inserted in its place. Otherwise, because every sale of a pre-emptional tenement renders the right of pre-emption enforceable in respect thereto, every successful pre-emptor obtaining possession of the property, by the so-called "re-purchase" from the vendee, would be subject to another pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n pre-emptor can by the exercise of his pre-emptive right prevent the intrusion of another Muhammadan, he should, a fortiori, be able to do so in the case of a purchaser who belongs to a different race and creed, for, caeteris paribus, it may be taken that a non-Muhammadan purchaser under such conditions would be more objectionable to the Muhammadan pre-emptor, and would demand a more strenuous exercise of the pre-emptive right. 28. Besides these arguments there is much on the subject of conflict of laws in the judgments delivered by Norman and Macpherson, JJ., in Sheikh Kudratulla v. Mahini Mohan Shaha 4 B.L.R. 134 which I might adopt in support of my view. But it is unnecessary to repeat the arguments which those learned Judges have already expressed with such force and lucidity. It, however, remains for me to deal with the reasoning adopted by Mitter J., as to pre-emption being a right "feeble and defective,"because, on the one hand, it is lost if not immediately asserted, and, on the other hand, it can be defeated by "tricks and artifices." If "feeble and defective" only means that the right of pre-emptor is transitory in the sense of requiring im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chaser, though enforceable against a Muhammadan. If any question of the " tricks and artifices " referred to were involved in this case, I should have a good deal to say on the subject, but here I need only say once more that in dealing with questions of Muhammadan Law, the distinction between moral behests and legal duties on the one hand, and between rules of substantive law and procedure on the other, must always be borne in mind. And I think I may safely say that most if not all the notions about the efficacy of these " tricks and devices "arise from overlooking these distinctions. Peacock, C.J., says (p. 173): "The Muhammadan Law, as has been already shown by Mr. Justice Kemp and Mr. Justice Mitter admits of all kinds of devices for the purpose of frustrating its own law. If there is a bond fide sale between a Muhammadan vendor and a Hindu purchaser, and they come forward and declare that which is not true, and say that it was not a sale intended to operate, but was a fictitious device, their words must be accepted according to the Muhammadan Law, and the truth of the assertion cannot be disputed. They would be bound by the untruth which the vendor and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;s Digest, on which the learned Judges of the Calcutta Court relied, that they owe their origin to extremely technical rules of the Muhammadan Law of contract, procedure or evidence, in none of which departments of law are we bound by those technicalities. The Muhammadan substantive law, in matters governed by it, cannot, of course, be administered without ascertaining the facts to which it is to be applied. But how those facts are to be ascertained, is a matter relating to the remedy, ad litis ordinationem, for which the Courts in British India have their own rules. And there is in principle no more reason for saying that in a pre-emptive suit the questions, whether a valid bond fide sale has taken place or not, and if so, for what price, are governed by the Muhammadan Law, than there would be for saying that when a decree is passed under the Muhammadan Law for dower or inheritance, the process for executing that decree is to be regulated by the rules of procedure provided by that law. And, speaking generally, I may say that if it is once conceded that the technicalities of the Muhammadan Law of contract, procedure or evidence, are not binding upon us, it will be found that no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to the rules of Muhammadan Law; and it would not be equitable that persons who are not Muhammadans, but who have dealt with Muhammadans, in respect of property, knowing perfectly well the conditions and obligations under which the property is held, should, merely by reason that they are not themselves subject to Muhammadan Law, be permitted to evade those conditions and obligations. I wish to add that although I was a party to Moti Chand v. Mahomed Hossein Khan N.W.P.H.C. Rep. 1875 p. 147 my decision followed the Full Bench ruling in Chundo v. Hakeem Alim-ood-deen 1874 N.W.P.H.C. Rep. 28 by which I felt myself bound. Brodhurst, J. 32. Concurred. William Comer Petheram, C.J. 33. My answer to the question referred to the Full Bench is in the affirmative. There appears to be no doubt as to what the rule of Muhammadan Law is. It imposes an obligation upon a Muhammadan owner of property, in the neighbourhood of which other Muhammadans have property, or in respect of which other Muhammadans have a share, to offer it to his neighbours or his partners before he can sell it to a stranger. This is an incident of his property, as the text-books of the Muhammadan Law show, and, for the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
