The Muhammadan Law

latter view appears to be supported by a passage in the Hidayah which quotes a saying of the Prophet to the effect that shufá affects only houses and gardens." This case was referred to by a Full Bench of this court in 1863 (Sutherland's Special Number, page 143) where the Judges say that they would not on the mere ground of vicinage support a claim of preemption in respect of an entire estate.

In 2 W. R., p. 261, we find the court says:-"Plaintiff claims on the ground of vicinage alone. Now it is clear that, if the Mahomedan law does not bear out his claim, there is no other custom which does; and we are of opinion that, even supposing the Mahomedan law in all its integrity to apply to the case, the plaintiff's claim cannot be supported. A claim founded on joint tenancy is, no doubt, good; but as regards vicinage not accompanied by joint tenancy the law is unfavorable and construes strictly such claims. The authorities are even at variance as to their admissibility; but assuming it to be settled that some claims on mere vicinage are good, the principle seems to be that, when either houses or small holdings of land make parties, in fact, such near neighbours as to give a claim on the ground of convenience and mutual servience, the claim in right of preemption will lie; but this principle does not apply to large estates which are not, in fact, such that any real vicinage of the proprietors results."

This decision is approved of and adopted in 8 W. R., p. 310, and again in the same volume at page 413. In a case reported at page 356 of the 10th Volume of the W. R., Mr. Justice Loch says:-"Looking at the Chapter on shufá in the Hidayah, the right appears to be limited to parcels of land, houses, &c., and does not contemplate the right to purchase a separate estate, because a part of it is contiguous with that of the Shafi. It is true that a person may have a bad neighbour as a zemindar, and so suffer as much vexation from him as from a bad neighbour next door or holding the next field; but still it appears to me that the law was intended to prevent vexation to holders of small plots of land, who might be annoyed by the introduction of a stranger among them." I think I would apply the ruling laid down in the judgment of the court quoted above to the present case, and allow the judgment of the Lower Court to stand; for the property to which the right of preemption is claimed, is a separate estate paying revenue to Government.

Mr. Justice Mitter says:-"The property in dispute is an estate paying revenue to Government, and I am not prepared to say that this case is not governed by the decision relied upon by the respondent."

These cases are all referred to, and concurred in, in a case reported in 11 W. R., p. 251.

The Arabic word, used to describe the subject-matter of preemption is 'akár.' There has been a considerable discussion during the argument of this case upon what is the true meaning of that word. The

Counsel for the appellant has contended that it applies to estates of all descriptions and magnitude; that there is under the Mahomedan law no limit whatever; that the right exists whether the estate sold be large or small, provided that any portion of it is contiguous to the estate of the party claiming the preemption, and that the decisions of this court which put a limit on the right in this respect are wrong.

We are, however, not prepared to say that there is not some ground for the limit which this court has, in the above cases, put upon the right even on the words of the text of the law itself. It is probably impossible now to discover the precise meaning which was put upon the word akár at the time when the Arabic texts were composed. Looking not merely at the words used in the Hidayah, but at the illustrations given in the second and third chapters of the same book, at the state of society when the law was first uttered, and at the inconveniences against which it was probably directed, the better opinion might be that akár should be construed to mean houses and small enclosures of land. But we rely rather on the uniform series of decisions, which very clearly recognize that the right of preemption on the ground of vicinage does not extend to estates of large magnitude, but only to houses, gardens, and small parcels of land. We do not consider that there is any thing before us which would justify us in disturbing that long series of decisions.

In Review No. 298 of 1869, on Special Appeal No. 158 of 1869, the question is referred to us in the following terms:-"By several recent decisions of this court, it has been established that under the Mahomedan law the right of preemption possessed by a neighbour extends only to houses and small parcels of land, and not to considerable estates. In two recent cases (11 W. R., p. 71, and 10 W. R., p. 314) it has been held that the right of a shareholder to preemption exists whether the parcel of land sold and in respect of which the claim is made be large or small. There are many prior decisions to the same effect. But we doubt whether it can be shown that under the Mahomedan law there is any ground for that distinction; whether under that law, there is any case in which a partner has a right of preemption in which, if he fails to exercise it, a neighbour may not also claim to exercise such right.

The question is, whether, according to Mahomedan law, a partner not in a house or small enclosure, but in a considerable estate consisting of a mouzah with five puttees, has a right to preemption when one of his co-sharers in such estate sells his share to a stranger.

In the case referred to in 10 W. R.; p. 314, the question does not (according to the report) appear to have been raised; but in the other case (11 W. R., p. 71) the question was raised, and the Judges (Kemp and Glover, JJ.,) say that they find nothing in the Mahomedan law which restricts the right of preemption of a coparcener to small parcels of land.

We find that this decision is in accordance with the law as recognized from a very early period. In a case which occurred as early as the year 1811 (reported in I Select Reports, page 350) the right of preemption was claimed and established by a shareholder in respect of a share in an entire pergunnah. In another case which occurred two years after (reported in Volume II, Select Reports, page 85) the right was applied to a whole mouzah.

Again, in 1840 (VI Select Reports, page 277) we find it applied to a whole village, which, from the price, was evidently a considerable one. In 1857 (Sudder Decisions, page 454) it was applied to a talook; and again in 1858 (Sudder Decisions, page 1754) to a village.

It is true that in none of these cases was any question raised as to the extent of the right; but the absolute silence of the reports upon any such limit is now contended for, notwithstanding the numberless instances in which the right of preemption must have been claimed by a partier in respect of a share in a large estate, strongly shows that for a very long period no such limitation has been supposed to exist.

It was urged upon us that the two lines of decision as to a neighbour and a partner could not be reconciled; that the right was given by the Arabic texts to both in the same terms; and that if the right was limited in the one case it ought also to be so in the other, the only respect in which the three classes of claimants differ being the right of priority. Now, if we are to look exclusively at the language of the law as it appears in the Hidayah there is certainly ground for this contention. But we think that we should not be justified, merely for the sake of logical consistency, in overruling what appears to have been the law consistently applied in this Court for a great number of years, and never until very recently questioned.

This view of the Mahomedan law of preemption in the case of partners has, no doubt, been acted upon in a great number of cases and is in conformity with modern usage; and to disturb it now would be to disturb a great many titles. Moreover, the distinction between the case of a neighbour and the case of a partner does undoubtedly proceed upon a very sound principle, viz., that the right should be co-extensive with the inconvenience, which it is intended to avoid.

The result is that we answer the question in Special Appeals Nos. 1663 and 1660 of 1869 in the negative, and the question in Review No. 298 of 1869, in Special Appeal No. 158 of 1869 in the affirmative.Weekly Reporter, Vol. XIV, Full Bench Rulings, page 1.,

INDEX.

ABU HANIFAH-

the founder of the first division or sub-sect of the Sunnis

ABÚ YUSUF-

the first disciple of Abú Hanifah

ACKNOWLEDGMENT-

conditions of

by a man:-

of a child

of parents

of other kinsmen

of a successor by contract