P L D 1960 Dacca 416 (PLP)

This passage is often quoted and interpreted with regard to the word milk as ownership in the sense of proprietorship.

15. This condition in the first place is confined to a mansion and has no reference to land (akhar) on which the mansion stands; it does not say that the pre‑emptor must be the owner of both the mansion and also of the land. Next it simply says that "there must be milk of the shafee". The word milk has been translated as "ownership" as it may be the nearest equivalent of milk in Arabic which, according to Muhammadan jurists, "covers wide range of ideas other than those included in mere proprietary rights." Abdur Rahim's Muhammadan Jurisprudence (1958 Edition) at page 262 explains what is meant by milk under the Muhammadan Law, as follows:‑

"Some of the most important objects to which a man's worldly desires relate and with reference to which men deal with one another are regarded in law as the subject of milk which is usually translated as ownership. The proper subject‑matter of milk is physical objects but the word as used by the jurists covers a wider range of ideas than those included in mere pro prietary rights. So long as this is borne in mind, there is no harm in adopting the word "ownership" as the nearest English equivalent of milk. "Milk is defined by Sadru' Sh‑Shariate in Sharhi Viqayah as the expression of connection existing between a man and a thing (Shayun) which is under his absolute power and control to the exclusion of control and disposition by others and by Taftazani as the power of exclusive control and disposition. The person who has such exclusive power and control is called the malik or owner. But the word milk is often used for the thing itself over which the power of the malik or owner extends. The thing over which the juristic conception of milk extends may be mal, that is, a physical object".

16. If the contention that milk means ownership in the sense of proprietorship is carried to its logical end, pre‑emption can never be claimed except in the case of Inam lands where nothing need be paid to the Government and the main aim and object of pre‑emption stated above will be defeated and frustrated.

17. In the Muhammadan Jurisprudence by Abdur Rahim at pages 262‑263, it is said :‑- "When milk is referred to as mal or physical object, it is divisible into milkur‑raqba which may be described as proprietary right, milkul yadi, that is right of possession, and milkiet- tasarruff, that is right of disposition. The first expresses the fact of owner being specially identified with the thing owned and it leads to rights of the last two categories and the right of disposition has been legalised for acquisition of right of control and possession."

18. Therefore milk, in condition 6, referred to in Bailie's Digest at page 477, is really used in the above sense, and meaning right of disposition and it is apparent from: "So that he has no right on account of a mansion of which he is merely a tenant for hire or that he has sold it before the purchase or has converted it into a musjid or place of worship."

19. We are dealing here with joie right i.e., raiyati right under the Bengal Tenancy Act. Under that Act, the right of such a tenant is permanent, heritable and transferable subject to payment of rent to the landlord.

20. In the case of Katyayani Debi v. Uday Kumar Das (ILR52Ca1.417(421)PC), the Privy Council observed: "The lease which is evidenced by the kdbuliyat of 27th November 1878, is of a kind which is familiar in the Province of Bengal. As it expressly bears, it is permanent and transfer able and at a fixed rent. The tenant under such a lease virtually becomes the proprietor of the surface of the land subject only to the payment of the stipulated rent and the lessor and the succeeding landlords have no interest in the land except in so far they form a security for payment of rent."

21. So the plaintiff has all the requisites of milk and malik mentioned above for the purpose of shaffa or right of pre‑emption and, as the plaintiff and the vendor, both being raiyats under the Bengal Tenancy Act, have got the ownership in the land on account of and in respect of which pre‑emption is claimed, he is entitled to get pre‑emption.

22. I am further confirmed in my views from the fact that such a right of pre‑emption is recognised in the Bengal Tenancy Act. When the right of pre‑emption is granted to a co‑sharer tenant in section 26‑F of the Bengal Tenancy Act, it has been subject to the right of pre‑emption under the Muhammadan Lave.

23. But a contrary view has been taken in the above mentioned Full Bench case of the Bombay High Court reported in I L R 1941 Born. 460, relying on the 6th condition of pre‑emption mentioned in Baillie's Digest on Mahomedan Law and on the cases reported in A I R 1921 Patna 164=5 Patna Law Journal 740, A I R 1937 Patna 578, I L R 16 Patna 519, 25 W R 43, as well as the observations of Mahmood, J., of the Allahabad High Court in the case Sakina Bibi v. Amiran and others (I L R 10 All. 472 (477)). So, it is necessary to consider those cases to see how far the views taken in those cases are correct and are in accordance with the principles of Mahomedan Law.

24. In the case of Sheikh Mohammad Jamil v. Khublal Raut (5 P L J 740=AIR 1921 Pat. 164), Sultan Ahmed, J., held that the right of pre‑emption under the Mahomedan Law does not extend to such cases where only the mokarrari interest is transferred and that, unless pro prietary possession is transferred, the right of pre‑emption did not accrue. The learned Judge also held that as the main pedestal on which the right of pre‑emption stands is reciprocity, there must have been the milkiat or ownership in both the property on account of and in respect of which right of pre‑emption is claimed.

25. I must mention here that I am not confronted in this case with the question of reciprocity, as it is not disputed, rather admitted, that there is no want of it, as the property both on account of and in respect of which pre‑emption is claimed is raiyati right i.e. jote right and the pre‑emptor is a shaft‑i-jar. So, it is not necessary for me in this case to consider the question of reciprocity though I hope to deal with it in future if occasion arises in an appropriate case.

26. In the case reported in 5 Pat. L J 740, it appears that what was sold was the house and in the land on which the house stood the vendor had a mokarrari interest whereas the pre‑emptor held land in the vicinity in proprietary right. So it was held that the right of pre‑emption did not extend to the sale of mokarrari interest but was confined to the sale of proprietary interest, milkiat or ownership.

27. So the case was decided more on the ground of reciprocity than on the ground of transfer of mokarrari right. But the principle stated that the right of shaffa did not arise in case of' sale of mokarrari right was stated too broadly. In support of the view, the learned Judge not only relies on the 6th condition mentioned in Baillie's Digest on Mahomedan Law but also on the observation of Mahmood, J., in the case of Sakina Bibi v. Amiran.

28. I have already dealt with the passage in Baillie's Digest and have shown that the word milk or ownership mentioned there in is used in the sense Mahomedan jurists used it and not in the technical sense. The word has now acquired a meaning in the sense of proprietorship. It is due to the fact that ownership is a near English equivalent of the Arabic word milk and in the sense of proprietorship. If the meaning of the word milk is taken to be full ownership in the sense of proprietorship, as I have already pointed out, the whole aim and object of pre‑emption will be defeated and frustrated and the Mahomedan jurists could not have intended such a meaning.

29. In the case reported in I L R 10 All. 472, the pre‑emptor was a co‑sharer out of possession of the property on account of which pre‑emption was claimed. Her claim was resisted by the rival pre‑emptors on the ground that she was not in possession of her own share. In support of that contention, reliance was placed on a passage in Hamilton's Hedaya, page 601 (vide Grady's Edition of Hamilton's Hedaya, page 562), which runs as follows :‑

"Besides, it is an express condition of shaffa that a man be firmly possessed of the property from which he derives his right of shaffa at the time when the subject of it is sold ‑a condition which does not hold on the part of the heirs. It is moreover a condition that the property of the Shuf remains firm until the decree of Kazee be passed and, as this does not hold on the part of the deceased Shuf, the shaffa is therefore, not estab lished with respect to any one of his descendants because of the failure of its condition". 30. .It was contended that the passage in Hedaya meant that actual physical possession of share, that is to say, pre‑emptive share, was a condition precedent to the exercise of the right of pre‑emption. To this contention, Mahmood, J. observed: "The translation as made by Mr. Hamilton is somewhat loose, but it is clear that what is intended to be conveyed by the author of the Hedaya was that, in what I may call the pre -emptive tenement, the pre‑emptor should have vested ownership and not a mere expectancy of inheritance or reversionary right or any other contingent right or any interest which falls short of full ownership. For instance, in case of a usufructuary mortgagee who is in possession, the application of the passage would require holding that no right is possessed by such a mortgagee ‑1 do not think that any other interpretation can be placed upon the passage and I hold also that such is the case law as shown by some of the reported cases".

31. This interpretation of the passage is with reference to the words "that a man be firmly possessed of the property from which he derives his right of shaffa at the time when the subject of it is sold". Whether does it mean an actual physical possession or possession of an owner, constructive or otherwise, and what is intended by the author of the Hedaya to be conveyed is that the pre‑emptor should have vested ownership (and not actual physical possession) and not a mere expectancy of inheritance, etc. or any interest which falls short of full ownership as in the case of a usufructuary mortgagee in possession.

32. Mahmood, J. is not interpreting the word milk or ownership but the nature of possession, physical or constructive, required for shaffa nor does the learned Judge say as to owner or ownership not in the sense as used by the Mahomedan jurists. If we attribute that meaning to what Mahamood, J., said without reference to the context, a great injustice would be done to the great Judge renowned for his erudition. So my con sidered opinion, with great respect to the learned Judge, in 5 Pat. L J case is that the view expressed in general terms that the right of pre‑emption does not accrue in case of a sale of ownership of mokarrari right or lease‑hold right is not correct. It is too widely stated. I do not like to express any opinion as to whether the decision in 5 Pat. L J 740 can be supported on the ground of want of reciprocity. The facts of that case are also distinguishable from the facts of the present case. My view is that if such a right is permanent, heritable and transferable, as in the present case, the lessee is the owner of the same and the right of pre‑emption, on the sale of such ownership, does accrue.

33. In the case of Baboo Ram Golam Singh v. Nursingh Sahaya (25 W R 43), the decision is based on the fact that, though the pre emptor was a co‑sharer in the touzi, the share of which was sold by another co‑sharer, he was not a co‑sharer of the mokarraridar who also sold his mokarrari right by the same sale deed to the same purchaser along with the co‑sharer of the touzi. As the pre emptor, was not entitled to pre‑empt mokarrari right because he was not a co‑sharer of the same and because the sale of mokarrari did not give rise to a right of pre‑emption, the suit was dismissed so far as the mokarrari right was concerned. The case was decided more on the ground of want of reciprocity than on the ground of want of pre‑emption in the sale of mokarrari right.

34. Then comes the case of Phul Mahammad Khan v. Kazi Kutubuddin (A I R 1937 Pat. 578). There it appears that along with the share of the two touzis some mokarrari as well as raiyati land was sold. The co‑sharer of the property claimed shaffa.' The lower Appellate Court granted pre‑emption in respect of two touzis sold but refused pre‑emption to the mokarrari and the raiyati lands, relying on the case reported in A I R 1921 Pat. 164 as well as on the case reported in 25 W R 43, holding that the plaintiff was not entitled to pre‑empt with regard to raiyati land. On appeal, the High Court not only agreed with the decision of the lower Appellate Court with regard to the raiyati land on the view that there cannot be any right of pre‑emption on the sale of raiyati land but also dismissed the entire suit holding that a pre‑emptor must pre empt with regard to the whole of the property transferred by the sale and, as such, the suit was not maintainable. So it appears that this case has gone further than what was decided in the ease reported in 25 W R

43. It so held relying on the case reported in 5 Pat. L J 740, followed in 1 L .R 8 Fat. 251, as well as the cases reported in 10 All. 472 and in A I R 1923 Pat. 217, where Das, J. held that there was no right of pre‑emption with regard to mokarrari land and the learned Judge relied also on a passage of Ballie's Digest on Mahomedan Law, page 478, which runs as follows:: "When it is said that akar are proper objects of the right of pre‑emption, it is by virtue of a right of milk or ownership that they are so and one of the conditions mentioned in the early parts of the Chapter is that the thing sold must be akar or what comes within the meaning of it whether akar is "divisible or undivisible as a bath or a well or a small house or mill or road."

35. In this passage also, there is nothing to show clearly that milk or ownership has been used contrary to the sense in which Mahomedan jurists used it, as explained in the Mahomedan Jurisprudence by Abdur Rahim and mean only the proprietary right.

36. Relying on the aforesaid cases and the passage in Baillie's (sic) Hedaya and the observation of Mahmood, J., Beaumont, C. J., in the Full Bench case of Dashrathlal Chhaganlal v. Bai Dhondubai held: "That is a definite assertion that the pre‑emptor at any rate must have the full ownership and that there also must be full ownership in the land pre‑empted, because otherwise there would be no reciprocity which is essential for the existence of this right of pre‑emption".

37. The facts in this case are that some lease‑hold land held with Government grant upto 1950 and thereafter if not terminated by one year's notice with a right of occupancy was the subject- matter of dispute for right of pre‑emption and it was held that the land being a lease‑hold land there existed no right of pre emption under the Mahomedan Law on the sale of such land.

38. I have already shown how the learned Judges in the cases relied on by the Full Bench case misinterpreted' the word milk or ownership contrary to the meaning in which it is used by Mahomedan jurists with reference to the right of pre‑emption 1 and came to a wrong conclusion in holding that the sale of any interest other than proprietary interest does not give rise to the right of pre‑emption. The same view has been taken and the same interpretation has been put on the word milk or ownership in the 6th requisite for pre‑emption mentioned in Baillie's Digest on Mahomedan Law which is contrary to the meaning and sense in which Mahomedan jurists have used the word. I have also pointed out that the facts in some of these cases are also different from the facts of the present case and they proceeded on different ground along with the ground of reciprocity. In these circums tances and the reasons given above, I feel myself unable to agree with this view of the matter.

39. So, I am of opinion that the Courts below are not right in dismissing the suit of the plaintiff for pre‑emption relying on the case reported in I L R 1941 Born, 460.

40. The result, therefore, is that this appeal is allowed and the judgment and the decree of the Courts below are set aside and the plaintiff's suit for pre‑emption is decreed. The plaintiff will get a kabala on deposit of Rs. 500 within a month from the date of the arrival of the record in the trial Court, notice of which is to be given immediately to the plaintiff and the defendant do execute a kabala on receipt of the consideration money so deposited by the plaintiff within another month, failing which the Court will execute a kabala on behalf of the plaintiff at his cost.

41. In view of the fact that there are contrary opinions in the matter, I do not propose to award any costs. So I direct that the parties will bear their own costs throughout.

42. Leave to appeal under clause 15 of the Letters Patent as prayed for is refused. K. B. A. Appeal allowed.