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TMI Blog1954 (4) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... te and adjoin it on the northern and eastern sides respectively. It is averred by the plaintiff that there is from very early time a custom prevalent in the city of Banaras according to which the plaintiff was entitled to claim pre-emption of the property in dispute on the ground of vicinage. It is said that as soon as the plaintiff received news of the sale, he made an immediate assertion or demand of his rights and repeated the same in the presence of the witnesses as required by Muhammadan Law and he further sent a registered notice to defendant No. 1 on the 21st May, 1941, asking the latter to transfer the property to the plaintiff on receipt of the price which he had actually paid to the vendors. As the defendant No. 1 did not comply with this demand the present suit was brought. The defendant No. 1 alone contested the suit and the pleas taken by him in his written statement can be classified under four heads. In the first place, he denied, that there was any customs of pre-emption amongst non-Muslims in the city of Banaras as alleged by the plaintiff. The second plea taken was that even if there was any custom of pre-emption it could not be availed of in a case like this w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff applied for leave to appeal to the Judicial Committee. This application was refused by the High Court but he got special leave under an order of the Judicial Committee, dated the 11th December, 1945. After the abolition of the jurisdiction of the Judicial Committee the appeal stood transferred to this Court for disposal. 4. The contentions that have been raised before us by the parties to this appeal practically center round one point. It is not disputed by either side that there is a custom of pre-emption in the entire city of Banaras; but whereas the respondent contend that the custom obtains exclusively amongst persons who are inhabitants of the city or are domiciled therein, the case of the appellant is that the custom admits of no such restriction or limitation and all those who own property in the city are governed by the custom, it being immaterial whether or not they are the natives of the place or are or are not resident owners. Various contentions have been raised by the learned counsel on both sides in support of their respective cases and we have been treated to an elaborate discussion regarding the nature of the right of pre-emption as is recognised in the Mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in support of either view and there is reason to think that even where the Muhammadan Law was borrowed it was not always borrowed in its entirety. It would be useful to refer in this connection to the following observations of the Judicial Committee in Digambar v. Ahmad 42 I.A. 10, 18) : In some cases the shares in a village adopted or followed the rules of the Mahomedan Law of pre-emption, and in such cases the custom of the village follows the rules of the Mahomedan Law of pre-emption. In the other cases, where a custom of pre-emption exists, each village community has a custom of pre-emption which varies from the Mahomedan Law of pre-emption and is peculiar to the village in its provisions and its incidents. A custom of pre-emption was doubtless in all cases the result of agreement amongst the shareholders of the particular village, and may have been adopted in modern times and in villages which were first constituted in modern times. 9. It is not necessary for our present purpose to pursue this discussion any further. 10. Since the establishment of British rule in India the Muhammadan Law ceased to be the general law of the land and as pre-emption is not one of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the appellant has pressed for acceptance of the first view while the Solicitor-General appearing for the respondents has contended, that by no accepted principles of jurisprudence can the pre-emptor be said to have an interest in the property of the vendor. It is pointed out that the right of pre-emption arises for the first time when there is a completed sale and the title of the purchaser is perfected and if the right was one attached to the property, it must have existed prior to the sale and should have been available not merely in case of sale but in all other kinds of transfer like gift and lease. 12. This latter line of reasoning found favour with the majority of a Full Bench of the Calcutta. High Court in the case of Sheikh Kudratulla v. Mahini Mohan 4 Beng. L.R. (Full Bench Rulings) page 134), where the question arose whether, when a Muhammadan sold his property to a Hindu purchaser the co-sharer of the former could enforce a right of pre-emption against the Hindu vendee under the Muhammadan Law. The question was answered in the negative by the majority of the Full Bench and Mitter J. who delivered the leading judgment, while discussing the nature of the right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd hence could be followed in the hands of the purchaser whoever he might be. Mr. Justice Mahmood elaborately reviewed all the original authorities of Muhammadan Law on the point and expressed the opinion that the right of pre-emption under Muhammadan Law partakes strongly of the nature of an easement right, the dominant tenement and the servient tenement of the law of easement being analogous to what the learned Judge described respectively as the pre-emptive tenement and pre-emptional tenement. In other words the right of pre-emption is a sort of legal servitude running with the land. The right exists, as the learned Judge said, in the owner of the pre-emptive tenement for the time being which entitles him to have an offer of sale made to him, whenever the owner of the pre-emptional property desires to sell it. But the right could not be a right of re-purchase either from the vendor or the vendee involving a new contract of sale. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ul and even if there is resemblance between the two rights, the differences between them are no less material. The correct legal position seems to be that the law of pre-emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owner's unfettered right of sale an compels him to sell the property to his co-sharer or neighbour as the case may be. The person who is a co-sharer in the land or owns lands in the vicinity consequently gets an advantage or benefit corresponding to the burden with which the owner of the property is saddled; even though it does not amount to an actual interest in the property sold. The crux of the whole thing is that the benefit as well as the burden of the right of pre-emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre-emptor does not amount to an interest in the land itself. It may be stated here that if the right of pre-emption had been only a personal right enforceable against the vendee and there was no infirmity in the title of the owner restricting his right of sale in a certain manner, a bona fide pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence to prevail amongst non-Muslims in a particular locality it must be presumed to be founded on and co-extensive with the Muhammadan Law on that subject unless the contrary is shown; that the Court may as between Hindus administer a modification of the law as to the circumstances under which the right may be claimed when it is shown that the custom in that respect does not go to the whole length of the Muhammadan Law of pre-emption, but that the assertion of right by suit must always be preceded by an observance of the preliminary forms prescribed in the Muhammadan Law which forms appears to have been invariably observed and insisted on through the whole of the cases from the earliest times of which we have record. 20. In the case before us no a attempt was made by the defendants to show that the custom of pre-emption set up and proved by the plaintiff was of a character different from that which is contemplated by Muhammadan Law. The only difference that is noticed in one of the decided authorities (Vide Ram Chandra v. Goswami, 45 All. 501) is that the custom of pre-emption prevalent in the city of Banaras is confined to house properties only and does not extend to vacan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... domiciled within a locality where pre-emption is enforced by law or custom but who owns lands within the same locality will not necessarily be subject to the law of pre-emption. 23. This statement clearly indicates the foundation of the whole doctrine. The law of pre-emption is stated to be a purely personal law even when it rests on custom. It is no incident of property and the right which it creates is enforceable only against persons who belong to a particular religious community or fulfill the description of being natives of a particular district. In the case of Byjnath Pershad v. Kapilmon Singh 24 W.R. 95, which can be said to be the leading pronouncement on the subject, the vendor of a house situated in the town of Arah, in the province of Bihar, was one Rajani Kanta Banerjee who was a native of lower Bengal but resided at Arah where he carried on the profession of a lawyer. Rajani Kanta sold the property to the defendant and the plaintiff brought a suit claiming pre-emption on the ground of vicinage. It was admitted that the custom of pre-emption did prevail amongst non-Muslims in Bihar, but still the suit was dismissed on the ground that the vendor, who was not a native ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to every person in the locality would be subject to the custom, irrespective of his being a member of a particular community or group. The whole doctrine, as enunciated above, is based upon the fallacious assumption that the right of pre-emption is a personal right arising out of certain personal conditions of the parties like religion, nationality or domicile and this fallacy crept into our law simply because the right of pre-emption as between Muhammadans is administered as a part of their personal law in our country. 25. The correct legal position must be that when a right of pre-emption rests upon custom it becomes the lex loci or the law of the place and affects all lands situated in that place irrespective of the religion or nationality or domicile of the owners of the lands except where such incidents are proved to be a part of the custom itself. 26. It appears that the decision in Byjnath v. Kapilmon 24 W.R. 95, which was quite in accordance with the view then taken by the High Court of Calcutta about the nature of the right of pre-emption, was the basis of the statement of law in the form set out above in an earlier edition of Roland Wilson's book. The decision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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