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TMI Blog1926 (8) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst an outsider, other parsons having a similar right of pre-emption are entitled to claim pre-emption against the buyer; and, secondly, that is such a case the rights of the claimants to pre-emption should be determined in the same way in which they would have bean determined, had the buyer acquired the property by enforcing his right of pre-emption against a stranger, in the absence of the other pre-emptors and the absentee pre-emptors had appeared subsequently and claimed pre-emption. In this view, as all parsons having equal right of pre-emption are only entitled under the Muhammadan Law to divide the property equally per capita, and as the purchasers in this case are two in number the plaintiff appellant is entitled to only a third share of the property sold. 7. The case was followed in Abdullah v. Amanatullah [1899] 21 All 292 and Nader Husain v. Sadiq Husain, AIR1925All361 . 8. A Full Bench of the Bombay High Court in Vithaldas v. Jametram [1920] 44 Bom. 887, following the case of Amir Hasan v. Rahim Bakhsh [1897] 19 All. 466 held that under the Hanafi School of Mahummadan Law, neighbours have equal rights to pre-empt, and there is nothing which is contrary to the princip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurists. The principle is based on the following ground. As all the pre-emptors have equal rights against a stranger, their rights are the same inter se, and it would be unfair to give preference to one share-over the others. And any one pre-emptor or may pre-empt in respect of his specifics share; Abdullah v. Amanatullah [1899] 21 All 292. In Wilson's Anglo Muhammadan Law, 2ad Edition, p. 401, Section 358, it is stated "if the claim is made by two or more persons belonging to the same category, they are entitled to equal shares of the pre-empted property on tendering their respective quotas of the purchase money. 14. On behalf of the respondent, reliance is placed upon the opposite view which was taken in the Full Bench case of Nowbut Lall [1879] 4 Cal. 831 and some cases which preceded it. In Babu Moheshee Lall v. Mr. G. Christian [1866] 6 W.R. 250 the dispute was between two non-Mahomedans, but the Mahomedan Law of pre-emption had been adopted by the Hindus in the locality. The learned Judges (Bayley and Pundit, JJ.,) observed If Mr. Christian was a coparcener no right of pre-emption as against a co-parcener could exist. 15. No authority was cited, and the case was r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rinciple on which it is based is that each co-sharer, having a right in every particle of the property, one co-sharer sailing his share would thereby affect the enjoyment of his share by the other co-owner and this he cannot do without his consent. 22. The reason stated is no doubt one of the reasons, but the learned lecturer was not dealing with the right of the coparceners claiming right of pre-emption inter se, and there is nothing in it against the right. 23. It is contended that the law as laid down by the Full Bench and the cases which preceded it having stood for a period of about 60 years, we should not disturb the decision of the Full Bench, that we are not bound to apply the strict Rule of Mahomedan Law to cases of preemption but should decide such cases according to the principles of justice, equity and good conscience. But in the first place, as already observed, neither the passages from Hedaya referred to above, nor the original texts from the works of eminent Mahomedan jurists [cited in the Allahabad case of Amir Hasan [1897] 19 All. 466] were referred to or discussed by the learned Judges in the Full Bench case or in the other cases of this Court. 24. In the next ..... X X X X Extracts X X X X X X X X Extracts X X X X
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