P L D 1957 (W (PLP)

CHANGEZ, J.‑

This second appeal arises out of a suit for pre‑emption. The facts fall within a very narrow compass and are as follows: On the 5th of January 1952, Muhammad alias Jalal respondent sold the land m dispute to Raja, Fazal and Lal for a sum of Rs. 1,

600. Husain and Sardar respondents then instituted this suit for possession of this land by means of pre‑emption. They claimed that they had a superior right of pre‑emption as they were collaterals of the vendor and were also co‑sharers in the khata. The defendants denied the plaintiffs' superior right of pre‑emption. The trial Court held that Husain plaintiff had a superior right of pre‑emption but Sardar plaintiff had no such right as he could not establish that he was a collateral of the vendor or that he was a co‑sharer in the khata. The suit was dis missed on the ground that as Husain had associated with, himself a stranger in claiming the right of pre‑emption, he had also forfeited his right to pre‑empt the land. Husain went up in appeal before the District judge, who, in the exercise of his powers under Order 1 rule 10 of the Civil P. C., struck off the name of Sardar from the plaint and passed a decree in favour of Husain for possession of the land in dispute on payment of Rs. 1,

600. Against this decision, the defendants have preferred this second appeal and the sole question for determination is whether Husain plaintiff, whose superior right of pre‑emption is not denied by the appellants, has forfeited his right to pre emption the land merely because he had associated with himself a stranger as co‑plaintiff in claiming the right of pre emption. Chaudhri Karam Elahi Chauhan, the learned counsel for the appellants, contended that the Punjab Pre‑emption Act of 1913 is silent on the point involved in this appeal and, therefore, by virtue of section 2 of the West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) as amended, the Muslim Personal Law should be applied for the decision of the case. Section 2 runs as follows :‑ "Notwithstanding any rule of custom or usage, in all questions regarding succession (whether testate or intes tate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, wills, legacies, gifts, religious usages or institutions including waqfs, trusts and trust property, the rule of decision shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims." Section 4 of this Act provides :‑‑ "With effect from the date on which this Act comes into operation, so much of the provisions contained in section 5 of the Punjab Laws Act, 1872, as conflict with the present Act shall be deemed to have been repealed." Section 5 of the Punjab Laws Act, 1872, is in the following terms :‑ "In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions, or any religious usage or insti tution, the rule of decision shall be‑ (b) The Muhammadan Law

in cases where the parties are Muhammadans, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been .modified by any such custom as is above referred to." In the light of the above provisions, it was argued that although pre‑emption is not one of the matters specifically enumerated in the sections quoted above, yet it falls within the category of religious usage or institution mentioned therein. In support of this contention, reliance was placed on Gobind Dayal v. Inayat, Ullah (I L R 7 All. 775) where Mahmood, J., after giving the history and nature of the right of pre‑emption, held that by a liberal construction the rule of the Muhammadan Law as to pre‑emption is a religious usage or institution within the meaning of section 24 of the Bengal Civil Courts Act, 1871, and as such is binding on Courts. Section 24 of the Bengal Civil Courts Act, 1871, is almost similarly worded as section 5 of the Punjab Laws Act, 1872, but it is also pro vided in that section that in cases not provided for bar the former part of the section, the Court shall act according to justice, equity and good conscience. This proviso is incor porated separately in section 6 of the Punjab Laws Act. The learned Judge, while dealing with this aspect of the case, referred to two earlier decisions of the Full Bench of that Court. In the first case. Shumsh‑ool‑Nissa v. Zohra Bibi (N W P H C Rep. 1874, p. 2) the majority of the judges held that under section 24 of the Bengal Civil Courts Act, the Muhammadan Law was not strictly applicable to questions relating to gifts, but it was equitable as between Muhammadans to apply that law to such questions. Spankie J., however, differed from the other three judges and held that Muhammadan Law as such was applicable. In the second Full Bench case, Chundo v. Hakeem Alim‑ood‑Deere (N W P H C Rep, 1874, p. 28) which related to a case of pre‑emption, the principle laid down in the above ruling was repeated. Here again, Spankie. J., adhering to the opinion formerly expressed by him, dissented from the opinion of the majority of the Court. In Gobind Dayal v. Inayat Ullah, Mahmood J. followed the opinion of Spankie, J. it, deciding the question whether the rule of Muhammadan Law as to pre emption is a religious usage or institution within the meaning of section 24 of the Bengal Civil Courts Act. This case was decided by a Full Bench consisting of five Judges and the question referred to the Bench was:‑

"In a case of pre‑emption, where the pre‑emptor and vendor are Muhammadans and the vendee a non Muhammadan, is the Muhammadan Law of pre‑emption to be applied to the matter, in advertence to the terms of section 24 of the Bengal Civil Courts Act?" The answer to this question was giver. in the affirmative by all the five judges, but whereas Mahmood J. decided the question on the ground that the rule of Muhammadan Law of pre‑emption was applicable as a religious usage, the other four Judges did not say so but held that it was equitable to apply the rule of Muhammadan Law. Since 1885, when this ruling was given, it so appears that no other judge has yet agreed with the views expressed by Mahmood, J. It will thus be seen that with the exception of Mahmood, J. the other Judges of the Allahabad High Court did not recog nise the rule of Muhammadan Law of pre‑emption as a religi ous usage or institution. Under the circumstances, it is difficult for me to hold that the rule of Muhammadan Law of pre‑emption falls within the category of religious usage or institution as envisaged by section 2 of the West Punjab Muslim Personal Law (Shariat) Application Act or section 5 of the Punjab Laws Act. But apart from this, it may be pointed out that section 5 of the Punjab Laws Act does not refer to pre‑emption at all nor does section 2 of the West Punjab Muslim Personal Law (Shariat) Application Act refer to it. It is, however, signifi cant that sections 9 to 20 of the Punjab Laws Act specifically dealt with the law of pre‑emption. If the intention of the legislature was to treat the rule of Muhammadan Law of pre‑emption within the meaning of religious usage or institu tion of section 2 of the Act, there was do necessity of expressly providing for it in sections 9 to 20 of the Act. These sections were amended from time to time and finally repealed by the Punjab Pre‑emption Act (I of 1913) which now deals with the law on the subject. The provisions of the Punjab Laws Act were not applicable exclusively to the Muhammadans, but could be taken advantage of by anybody, without reference to creed, colour or race. As the right was expressly provided for, it was a clear indication on the part of the legislature not to recognise the Muhammadan Law of pre‑emption as falling within the scope and meaning of the various subjects enumerated in section 2 of the Punjab Laws Act. So whatever the view of the Allahabad High Court may be in the matter, it is of no assistance in deciding the, question involved in this appeal. The right of pre‑emption in Punjab is now regulated by the statute. 1t has prevailed from times immemorial amongst the village communities of Punjab as a custom which enabled them to prevent outsiders from intruding into their midst. The original foundation of rural society was the tribe, holding lands in common, which, as the tribal cohesion loosened, developed into village communities. The land was originally. the tribes' land, but as the society progressed, the idea of, individual ownership gradually grew, but the idea has not: developed in the Punjab to such an extent as to allow the individual owner the right of free disposal. From the earliest' times, the power to alienate land, which in theory belonged to' the tribe or village, was limn ed by the power of that tribe or' village to prohibit it absolutely; then to prohibit certain forms of alienation or to impose restrictions as to the purposes for which alienations might be effected or when these purposes were satisfied, to limit the choice of alienates to members of the tribe who would have the first right to take up the aliena tion; in other words, had the right to pre‑empt. The right of pre‑emption is, therefore, merely a corollary of the general principle regulating succession to, and the limited power of disposal of, land and has nothing to do with the Muhammadan Law of pre‑emption, There is a marked contrast between the statutory law of ‑pre‑emption in Punjab and .the rules of B Muhammadan Law of pre‑emption in many respects which need not be detailed here. It is, therefore, clear that so far as the Punjab is concerned, the rule of decision in pre emption cases is not the rule of Muhammadan Law of pre emption and the Courts are, therefore, not bound to enforce any such rule of Muhammadan Law. The learned counsel for the appellants also relied on para. 241 of the Principle: of Muhammadan Law by D. F. Mulla which runs as follows :‑ "If a plaintiff, who has a right of pre‑emption joins with himself as a co‑plaintiff a person who has no such right, ; he is not entitled to claim the pre‑emption and the suit must be dismissed." Para. 241 does not mention the authority for the proposition laid down in it, It appears that on the basis of the Allahabad rulings which have been cited under this para. this rule has been incorporated in this book. No other authority was produced before me in support of the proposition laid down in this para. I am, therefore; not satisfied that the rule men tioned in para. 241 is arule of Muhammadan Law. But even if it be so, then I have already held that in Punjab the rule of Muhammadan Law of pre‑emption is not applicable. Para. 228 of the above book also recognises this fact. It says that the law of pre‑emption in the Punjab is regulated by the Punjab Pre‑emption Act and in Oudh by the Oudh Laws .Act XVIII of 1876 and in Agra by the Agra Pre‑emption Act XI of 1922. These Acts apply to Muhammadans as well as to Non‑Muhammadans with the' result that the rules of the Muhammadan Law of Pre‑emption do not apply even to Muhammadans in these places except, on the footing of. local custom. The learned counsel for the appellants has relied on a string of authorities of the Allahabad High Court in support of the proposition that if a plaintiff having a superior right of Pre‑emption joins a stranger with him as a co‑plaintiff for enforcing his claim, he also forfeits his right of pre‑emption. The leading authority is Bhawani Prasad v. Damru (ILR5All.197) where it was held by a Division Bench that applying the doctrine of Muhammadan Law of pre‑emption, such doctrine being in accordance with justice, equity and good conscience, a co‑sharer having a right of pre‑emption loses his right if he joins a stranger with him in enforcing such a right. The judgment was delivered by Mahmood, J. and the following passage from the judgment may be quoted with advantage :‑ "It is clear that there exist no definite rules of substantive law by which questions of this nature, relating to the right of pre‑emption claimed under the terms of the Wajib‑ul‑arz, are governed. It is only on the broad principles of justice, equity and good conscience that such questions can be dealt with by the Courts. The right of pre‑emption, though it has undergone some essential alterations, induced either by the force of custom or the express stipulations of co‑parce nary bodies of landed proprietors, is not traceable, at least in these Provinces, to any sources other than the influence of the Muhammadan Law. A Full Bench of the Calcutta High Court in the case of Fakir Rawot v. Sheikh Emambaksh arrived' at similar conclusions; and in two recent cases a Division Bench of this Court has broadly accepted the principle, that in the absence of circumstances to the contrary, the Court, in administering equity in cases of pre emption, will follow analogies furnished by the rules of the Muhammadan Law of pre‑emption, so long as those rules are consistent with the principles of justice, equity and good conscience." Viewing the case in this light, he further observed :‑ "The rule of law by which a person, entitled to pre emption, forfeits his right is based upon the principles of equitable acquiescence, which forms one of the most impor tant elements of restrictions imposed upon the vindictive or capricious exercise of the right of pre‑emption. Those restrictions appertain to the very essence and nature of the right‑restrictions which, if ignored, would defeat the policy on which the right of pre‑emption is based. A person who whilst possessing the pre‑emptive right, takes part in trans‑, acting the sale to a stranger, or who, in purchasing property himself, joins a stranger in such purchase, cannot, on the one hand, subsequently object to the sale which has with his acquiescence violated the pre‑emptive right; nor, on the other hand, can he resist the claim of other pre‑emptors who, in suing for pre‑emption, vindicate the policy of the right. The rule is, that a person cannot claim a right which he has himself violated, nor can he be allowed to complain of an injury in which he has himself acquiesced. Applying these principles to the present case, it seems to us that the very fact that Damru, in suing for pre‑emption, joined with him two other persons who had no such right, must be taken to amount to such acquiescence in the sale as estops him in equity from complaining of the sale." It is, however, interesting to note that the rule of the Muhammadan Law governing the point involved has not been referred to at all in the ruling. The question appears to have been decided on the broad principles of justice, equity and good conscience and not on the basis of any analogy furnished by the rules of the Muhammadan Law of pre‑emption. This ruling has been invariably followed by the Allahabad High. Court in a number of cases including Bhupal Singh v. Mohan Singh (I L R 19 All. 324), Rahima v. Razzak Ali (A I R 1923 All: 256), Shanhar Lall v. Kirari Mal (A I R 1924 All, 81), Umar Draz v. Sri Ram Das (A I R 1925 All. 355), Dwarka Singh v. Sheo Shankar Singh (A I R 1927 All. 168), and Sheo Balak Chaudhri v. Ram Saran Chaudhry (A I R 1933 All. 788). On the contrary, the Punjab Chief Court has consistently held that the person having the right of pre‑emption is entitled to maintain the suit alone after the name of the stranger had been struck out of the plaint. The leading Punjab case on the subject is Sharaf and Makhan v. Pir Baksh and Khoda Baksh (83 P R 1893) where it was held by a Division Bench that such a suit is maintainable by the pre‑emptor alone after the name of the stranger is struck off the record. The judgment was delivered by Sir Meredyth Plowden, J. who dealt with the Allahabad case Bhawani Prasad v. Damru and dissented from the view expressed in that judgment and observed as follows :‑ "We are unable to assent to the view of the Allahabad High Court, or to the reasoning upon which it is founded. If A has a right of pre‑emption on a sale by B to C, and under the impression that D has an equal right with him self, joins him as co‑plaintiff, and it appears that D has no right, upon what principle can it be held that A's right is forfeited? The analogy between a pre‑emptor as purchaser joining a stranger with him in the purchase, and a pre‑emptor as plaintiff joining with him a stranger as co‑plaintiff, is not so complete as necessarily to entail the same consequences. In the first case the pre‑emptor purchases in violation of the rules regulating pre‑emption, and his act is incapable of being undone. In the second, the error is in the form of the claim made in Court, and can be remedied without infringing the right of any person. The question in the former case may be one of the law of pre‑emption, or of justice, equity and good conscience ; in the latter, it is a question of the law of procedure in enforcing by suit a right of pre‑emption. It may be quite just to say to a pre‑emptor, you alone had a preferential right to purchase but you and a stranger together had not: and yet quite unjust to say to him, you have a preferential right of pre emption to sue the defendant, but you have forfeited it by the erroneous belief that your co‑plaintiff had an equal right. We have in the present instance to deal with the latter case only, and not with the former. There is, in our opinion, no reason why the plaintiff, Makhan, should not maintain this suit alone, after the name of Sharaf has been struck out of the plaint, and we know no rule either of pre‑emption, or of procedure which deprives the plaintiff Makhan of his right of pre‑emption or requires that his suit should be dismissed because Sharaf was erroneously joined in the plaint as a co‑plaintiff". The principle was reaffirmed in Hira Lal and others v Ibrahim and others (102 P R 1894) where also the case Bawani Prasad v Damru was taken note of. Benton, J., who delivered the judgment, observed as follows :‑ "I am of opinion also that if we were to find that any of those who had withdrawn were tenants‑at‑will, this should not prejudice the plaintiffs' case. I think that the view taken of this matter in Punjab Record, No. 29 of 1894, is correct, although it is opposed to I L R V. All.

197. It was pointed out that the later ruling was opposed to a previous ruling of the same High Court given in I L R IV All.

249. I think there is a very material distinction between the case of pre‑emption claimants joining strangers with them in a purchase which the Court is asked to set aside and the case of pre‑emption claimants allowing persons not entitled to join with them in suing who retire from the suit when the mistake is discovered. The mistake in the later case can be corrected by the authority of the Court duly exercised, so that the admission of strangers, the exclusion of whom is the object of the law of pre‑emption, is avoided. When, however, a purchase has (been effected by pre‑emptors and strangers combined, the mischief can only be remedied by setting aside the sale". To the same effect is the ruling Mangli v. Sobha Singh (218 P W R 1913). These authorities clearly show that in the Punjab the prevailing view has been that a person having a superior right of pre‑emption does not lose his right merely because he has associated with himself a stranger in enforcing his claim, for the same can be remedied by striking off the name of the stranger from the plaint. After carefully examining the authorities referred to above, I feel no hesitation in accepting the Punjab view in preference to the Allahabad view. In my opinion, the law was correctly laid down in Sharaf and Makhan v. Pir Baksh and Khoda Baksh that the right of a plaintiff pre‑emptor is not lost if in a suit to enforce his right, he joins with him a stranger. The Allahabad cases cited above are based on the views expressed in Bhawani Prasad v. Damru, which was decided on the basis of equitable acquiescence. In that case, how ever, the point was not discussed at all if, in view of the provisions of the Civil Procedure Code, the relief could be granted to the pre‑emptor after striking off the name of the stranger from the plaint. In the other Allahabad cases also, this aspect of the case was never considered. May be, the question was never raised in those cases. It is also not clear if in these cases the plaintiff, with no right or inferior right, was willing to withdraw from the suit. If the plaintiffs insisted in getting the relief jointly, then it is obvious that no relief could be granted at all to tine plaintiffs. But the question, assumes an entirely different complexion if the so‑called stranger plaintiff is willing to withdraw from the suit at any stage of the proceedings. The Allahabad authorities, there fore, cannot be said to be conclusive on the point involved in this appeal. The rulings of the Punjab Chief Court, however, have laid down that the mistake is merely one of procedure and is, remediable by amendment. It is beyond comprehension why such an improper joinder of the plaintiffs should be deemed to be an act infringing the pre‑emptive right of the same nature, as the joinder of a stranger with a pre‑emptor in a purchase. In the latter case, the sale being joint and indivisible, the object of pre‑emption, viz., the exclusion of strangers, is defeated by the very act, but in the former case, the defect is only procedural and can be remedied by amending the plaint without, in the least, infringing any right of pre emption. in a case of this nature, the plaintiffs insist in obtaining the relief jointly, then I have no doubt in my mind that the suit must fail, but if the so‑called stranger plaintiff withdraws his name from the plaint in case his claim is not established, that is no reason to deprive the other plaintiff of his right of pre‑emption. In such a case, a Court will be exercising proper discretion in the matter by striking out the name of such a plaintiff and granting the relief to the other. The learned counsel, however, argued that the amend ment of the plaint should not have been permitted at the appellate stage, and in support of his contention, he relied on Manohar Lal v. Roshan Lal (A I R 1938 Lah. 799) where Backett, J., held that under Order I, rule 10 of the Civil Procedure Code it was never intended that the claim of a necessary party should be first tried and that his name should then be struck off the record before passing the decree on the ground that his claim ought to be dismissed. That was a case where four persons had sued for redemption of a mortgage. After the trial of these claims, the trial Court came to the conclusion that the claims of two of these persons should be dismissed, but instead of dismissing the claim, the Court struck off their names on the ground that they had not been properly joined as parties to the suit. In the peculiar circumstances of that case, the observations of Backett, J. referred to above were quite appropriate. But if the learned judge meant to lay down that in no case the Court after the trial of the case is empowered to strike off the name of an improperly joined party, then with all respect to the learned Judge, I cannot agree to this proposition. Sub‑clause (2) of Order 1, rule 10 of the Civil Procedure Code provides :‑ "The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added". Under section 32 of the old Code, corresponding to this sub‑rule, the Court could add parties at any time and even without any application therefore. But it could not strike out parties except on the application of a party made on or before the first hearing. Under sub‑clause (2) of Order I rule 10 of the Civil Procedure Code of 1908, the Court has power to F strike out or add parties at any stage of the Proceedings with or without any application. The Court now has, therefore, the power to strike out the name of a party, improperly joined at any stage of the proceedings. The law has not imposed any other limitation on the exercise of this power, The discretion has, of course, to be exercised in a reasonable manner so as not to cause inconvenience or embarrassment to the opposite party. The impropriety in the joinder of a person as a plaintiff in a pre‑emption suit lies in the fact that if he is a stranger, he has no connection with the reliefs claimed in the plaint. By striking off the name of such a person from the plaint, the defendants are not put to any inconvenience or embarrassment. Before 1908, the name could not have been struck off: after the first hearing of the case. That may be the reason that in the earlier rulings of the Allahabad High Court, the point was never raised that relief could be granted to the pre‑emptor after striking off the name of the stranger, because under the old law, after the first hearing the plaint could not be amended. Under section 107 (2) of the Civil Procedure Code, the appellate Court is empowered to exercise the same powers as are conferred on Courts of original jurisdiction in respect of suits instituted therein. The discretion given under the rule cannot be fettered by any hard and fast rules. In the instant case, Sardar had based his claim of pre emption on the ground that he was also a collateral of the vendor and was a co‑sharer in the khata, but he failed to establish his claim and realising the weakness of his claim, he withdrew his name at the appellate stage. In the circumstances of the case, there appears to be no justification to deprive Hussain of his right of pre‑emption, which is undisputed. I accordingly hold that the lower appellate Court was perfectly justified in striking off the name of Sardar from the plaint and in giving the necessary relief to Husain plaintiff'. For the aforesaid reasons, I do not find any force in this appeal and dismiss it with costs. A.H. Appeal dismissed.