P L D 1962 (W P) Karachi 317 (PLP)

MASUD AHMED, J.‑The land in dispute, which is 4 acres and 3 ghuntas in area was sold by Sahibzada Mir All Mardan Khan respondent to the appellant, Allah Bux, by means of a registered sale deed dated 8th March 1958, in consideration of a sum of Rs. 3,000; a sum of Rs. 2,000 having been paid in cash and for the balance a plot of land was conveyed to the vendor. About 2 weeks afterwards, namely, on the 22nd March 1958 Janoo, Rashid and Bacho respondents filed a suit to pre‑empt the sale. Their case was that they were the owners of an adjoining piece of land also the land in dispute and their lands receive water from the same water‑course and as such they had a right to pre‑empt the sale. According to these respondents the sale took place in considera tion of a sum of Rs. 2,800 and they prayed that a decree be passed, in their favour, on payment of the price actually paid.

2. The suit was contested by Allahbux appellant, who pleaded that the whole of the sale price was duly paid, that the respondents had the knowledge of the sale from the very beginning and as they refused to buy it, though an offer was made to them by the vendor, they could not pre‑empt the sale, that they did not possess a right as pre‑emptors and that the right, if any, was lost on account of their acquiescence. The vendor and the vendees profess the Shia faith while the pre‑emptors are Sunnis and, therefore, it was pleaded, by the appellant, that the suit was governed by the rules of Shia Law and under that law the respondents could not pre‑empt the sale, on the ground that they were owners of an adjoining plot of land and were also participants in appendages.

3. The trial Court framed the following issues :‑ (1) Whether the plaintiffs are pre‑emptors ? (2) Whether the land in suit is sold in the sum of Rs. 3,000 or less ? (3) Whether plaintiffs have made demands according to law ? (4) Whether the seller of the disputed land is Shia. If yes, what is its effect on the suit ? (5) Whether the suit is bad for misjoinder of parties ? (6) Whether the defendant Allah Bux has made improvements, if yes, whether the defendant is entitled to its costs ? (7) Whether the suit is not maintainable according to law ? (8) Whether the plaintiffs have lost their right of pre‑emption, if any, by acquiescence ? (9) What should the decree be ? The trial Court came to the conclusion that as the vendor was a Shia the respondents could not pre‑empt the sale because under the Shia Law no such right vested in the owners of the adjoining property or in a person who was a sharer in appendages. The Court also came to the conclusion that an offer had been made by the vendor to the respondents to purchase this land and as they declined to purchase the land they lost their right to pre- empt the sale. The Court also came to the conclusion that no proper demands (Talabs) were made by the respondents and that the whole of the sale price, amounting to Rs. 3,OC0 was paid to the vendor. As a result of these findings the suit was dismissed. The respondent, feeling aggrieved by the judgment of the trial Court, went in‑Appeal and only the following points were raised by them before the learned District Judge: (1) Whether the suit is maintainable ? (2) Whether the appellants are entitled to the right of pre-emption ? (3) Whether valid talabs have been made immediately ? (4) Whether the right of pre‑emption has been lost by acquiescence ? (5) Whether respondent Allahbux bad made improvements, if yes, whether he is entitled to its cost ?

4. The lower appellate Court gave findings on the 1st four points in favour of the respondents and on the 5th point held that although some Improvements were made by the vendee, after the sale had taken place, he was not entitled to claim any compensation on account of these improvements. As a result of these findings the respondents' suit was decreed, on payment of a sum of Rs. 3,

000. Allahbux vendee has now come up to this Court, in second appeal, and prays that the judgment and decree of the lower appellate Court be reversed and those of the trial Court restored.

5. The first point raised by the learned counsel for the appellant was that the law of pre‑emption has not been kept alive by the Laws (Continuance in Force) Order, 1958 (President's Order (Post Proclamation) No. I of 1958) and that, in any case, as this Law came into conflict with Article II of the late Constitution it was not a valid law and, hence, the respondents could not be granted a decree for possession of the land in dispute. No such ground had been set forth by the appellant in the memorandum of appeal, nor was any application given by the appellant for amendment of the memorandum. According to Order XLI, rule 2 of the Civil Procedure Code, the appellant cannot, except by leave of the Court, urge, or be heard, in support of any ground of objection not set forth in the memorandum of appeal ; although the appellate Court, in deciding the appeal, is not bound to confine its decision to the grounds of objection set forth in the memorandum. Faced with this difficulty the learned counsel for the appellant referred a case of Privy Council, reported as Official Liquidator. of M. E. Moola Sonds Ltd. v. Perin R. Burjorjee (AIR 1932 P C 118), in which their Lordships held that: "When a question of law is raised for the first time in a Court of last resort upon the construction of a document or upon the facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain the plea." No doubt the question raised by the appellant's counsel is a question of law and‑ if he had taken this objection in the memorandum of appeal, in view of the decision of their Lordships of the Privy Council, he could be heard in support of that objection, but as no such ground of objection has been taken in the memorandum, the appellant cannot, as of right, urge that ground before us now. Inspite of this omission, we would have been inclined to permit the appellant to urge this ground before us, provided there had been some substance in the objection. We are of the opinion that the objection is devoid of any force and, therefore, no useful purpose can be served in permitting the appellant to raise this objection now. We may, however, point out that Article 4 of the Laws (Continuance in Force) Order, 1958 saves all laws, other than the late Constitu tion and the Law of Pre‑emption, as applicable to this part of the province, being one of the Laws which was in force before the Laws (Continuance in Force) Order, 1958 was promulgated it continues to apply to this part of the Province. It is, therefore, wrong on the part of the appellant's counsel to say that the Law of Pre‑emption is no longer in force. As to the contention that the Law of Pre‑emption comes into conflict with Article II of the Constitution and hence for that reason is void, the chapter of Fundamental Rights, in which Article II occurs, having according to the Lordships of the Supreme Court disappeared from the "new legal order", the argument advanced by the learned counsel is not available to him. Reference, for this purpose, may be made to the case reported as State v. Dosso and another (P L D 1958 S C (Pak.) 533), in which it was held that Article 5 of the late Constitution, which was contained in the same Chapter dealing with the Fundamental Rights, had disappeared from the Constitution and hence a law which came Into conflict with that Article, such as the Frontier Crimes Regulation could not be considered to be void. The arguments advanced by their Lordships in Dosso's case will apply, with equal force to the present case, because if the Chapter on Fundamental Rights has disappeared from the late Constitution no law which comes into conflict with any of the provisions of that chapter can now be held to be void. The learned counsel referred, in this connection, to a recent decision of the Supreme Court, reported as Mian Iftikhar‑ud‑Din and another v. Muhammad Sarfraz (P L D 1961 S C 585) and con tended that the decision given in Dosso's case, by their Lordships of the Supreme Court, is not final and that their Lordships themselves felt some doubt about the correctness of that decision. We have gone through the judgment and do not find in it any thing to indicate that their Lordships have, in any way, modified the views which they expressed in Dosso's case. At page 600 of this reported judgment it was, however, observed as follows :‑ "We have considered whether we should determine in the present case the correctness of the proposition that Fundamental Rights do not exist now in Pakistan and we are of the opinion that we should reserve this consideration for a more appropriate occasion because the determination of this question will not affect the decision of the present case." Their Lordships, when making this observation, did not doubt the correctness of the decision in Dosso's case and their observa tion was only to the effect that it was not necessary for the purpose of the decision of this particular case to consider the question as to whether the Chapter on Fundamental Rights continues to exist or not. As the decision in Dosso's case stands, we are bound to follow it and, therefore, we cannot hold that the Chapter on Fundamental Rights in the late Constitution is still part of the law of this land.

6. Coming now to the merits of the case, the learned counsel for the appellant challenged the findings of the lower appellate Court on two points only, namely, the right of the respondents to pre‑empt sale on the ground of vicinage and participation in amenities and whether that right had been lost by acquiescence or not. So far as the second mentioned point is concerned much need not be said. The sale, as stated above, took place by means of a registered sale‑deed dated 8th March 1958 and within two weeks of the date of sale the suit, out of which this appeal has arisen, was filed. The vendor, Sahibzada Mir Alimardan Khan, appeared as a witness for the appellant and admitted that although prior to the date of the sale the pre-emptors had refused to buy this land at the price demanded by him, on the very date on which he had agreed to sell this to the appellant, one of the pre‑emptors came to him and said that he was prepared to buy this land at the rate of Rs. 700 per acre. Apart from the oral evidence on the record, the admission made by the vendor himself, makes it quite clear that the pre‑emptors were vigilent enough to assert the right of pre‑emption immediately when they came to know that the transaction had been closed. According to the Muhammadan Law of Pre‑emption which, as will be presently seen, as applicable to this part of the Province, the pre‑emptor is required to make two demands. The first demand is to be made immediately when he comes to know of the sale, declaring his intention of asserting his right and the second in the presence of witnesses, as soon as possible after the sale bas taken place. In the present case one of the demands was made on the very day of the sale and the other demand was also made shortly afterwards, in the presence of witnesses. The oral evidence produced by the respondents is supported by the fact that they did not lose much time in filing the suit for pre‑emption. If they had not been serious in the demand which they made and if they were not anxious to buy the property they would not have filed the suit within 2 weeks of the date of the sale. We are, therefore, of the opinion that the finding of the lower appellate Court on this point is correct.

7. According to Mulla (Muhammadan Law 14th Edition page 209) the Muhammadan law of pre‑emption is applied by the Courts to Muhammadans as a matter of "justice, equity and good conscience". The law of pre‑emption in the Punjab is regulated by the Punjab Pre‑emption Act, 1913, which was extended, with certain modifications, to the North West Frontier, in the year 1924. It is regulated in Oudh by the Oudh Laws Act, XVIII of 1876, and in Agra by the Agra Pre‑emption Act of 1922. These acts apply to Mahomedans as well as non --Mahomedans. In other parts of this sub‑continent, where no such enactments are in existence, the Muhammadan Law of Pre-emption is applied by the Courts to Mohammedans only. In p a Full Bench case of the Allahabad High Court, the leading judgment of which was written by that eminent Judge, Justice Mahmood which has been reported as Gobind Dayal v. Inayat ullah (7 I L R All. 775). It was held that: "The law of pre‑emption is essentially a part of Muhammadan jurisprudence. It was introduced into India by Muhammadan Judges who were bound to administer the Muhammadan Law. Under their administration it became, and remained for centuries, the common law of the country, and was applied universally both to Muhammadans and Hindus." The learned Judge, in an exhaustive judgment, dealt with all aspects of the law of pre‑emption and came to the conclusion that the pre‑emptive right originated antecedently to the sale in respect of which it may be exercised and that it was not merely a personal right vesting in the owner of an adjoining property. The learned Judge also came to the conclusion that: "The right of pre‑emption is not a right of "re‑purchase" either from the vendor or from the vendee, involving any new contract of sale but 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 he had delivered his title."

8. The Supreme Court of India, in a recent judgment, in Shri Audh Behari Singh v. Gajadhar Jaipuria and others (AIR 1954 S C 417) relying amongst others on Allahabad case came to almost the same conclusions and, held that :‑ 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 matters respecting which Muhammadan law is expressly declared to be the rule of decision where the parties to a suit are Muhammadans, the Courts in British India administered the Muhammadan Law of pre‑emption as between Muhammadans entirely on grounds of justice, equity and good conscience . . . . . . . Rights of pre‑emption have, in some Provinces like Punjab, Agra and Oudh, been embodied in statutes passed by the Indian Legislature and where the law has been thus codified it undoubtedly becomes the territorial law of the place and is applicable to persons other than Muhammadans by reason of their property being situated therein. In other parts of India, its operation depends upon custom and when the law is customary the right is enforceable irrespective of the religious persuation of the parties concerned. Where the law is neither territorial nor customary, it is applicable only between Muhammadans as part of their personal law provided the judiciary of the place where the property is situated does not consider such law to be opposed to the principles of justice, equity and good conscience . . . . It would not be correct to say that the right of pre‑emption under Muhammadan Law is a personal right on the part of the pre‑emptor to get a re transfer of the property from the vendee who has already become owner of the same. It is true that the right becomes enforceable only when there is a sale but the right exists antecedently to the sale, the foundation of the right being the avoidance of the inconveniences and disturbances which would arise from the introduction of a stranger into the land. The sale is a condition precedent not to the existence of the right but to its enforcibility. The correct legal position seems to be that the law of pre-emption imposes a limitation or disability upon the ownership of property to the extent that it restricts the owner's unfettered right of sale and 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 . . . . . . The burden and benefit of a right of pre‑emption are incidents annexed to the lands belonging respectively to the vendor and the pre‑emptor and is not the right merely one of repurchase, which a neighbour or co‑sharer enjoys under Muhammadan law, and which he can enforce personally against the vendee in whom the title to the property has already vested by sale."

9. It is, thus, obvious that the right of pre‑emption is not a personal right vesting in the pre‑emptor, it is a right which vests in him by reason of ownership of property and it exists prior to the date of sale, although it can be enforced only after the sale has taken place. It is also obvious that, as in this part of the Province there is no statute law on the subject, and as custom was neither pleaded nor proved in the present case, the Muhammadan Law of Pre‑emption would apply on the grounds of justice, equity and good conscience. These propositions are not disputed by either party and the dispute between them is as to whether the case should be governed by the rules of Sunni or Shia Law on the subject. The basic difference between the sect‑law, on this subject, is that according to the Shia Law no right of pre‑emption exists in the case of property owned by more than two co‑sharers nor on the grounds of vicinage or participation in appendages. The Sunni Law, however, recognises such a right, in a partner in the property, in a sharer in "Immunities and appendages" and in a neighbour, namely a person who owns the adjoining property. Reference, in this connection, may be made to paragraphs 248 and 249 Principles of Muhammadan Law by Mulla (14th Edition) pages 228 and 229 and Chapter I (page 548 of Hedaya). According to the last mentioned authority the right vests in (1) a partner in the property of the land sold, (2) a partner in immunities and appendages of the land (such as the right to water and to roads) and (3) in a neighbour.

10. The respondents claim the right on account of ownership of adjoining land and also on the ground that they had a right to irrigate their land by the same water‑course by which the land in dispute was irrigated. No such right is recognised by the Shia law, though the Sunni Law recognises it. If, therefore, the case is governed by the Shia Law the respondents were not entitled to a decree. They could succeed only if the case is governed by Sunni Law.

11. In holding that the respondents were entitled to pre-empt the sale and that the case was governed by the Sunni Law of pre‑emption, the lower Appellate Court relied on a case of the Calcutta High Court, reported as Jog Deb Singh v. Mahomed Afzal (32 Cal. 982). In this case it was urged before their Lordships that the law to be applied in suits of pre‑emption was the personal law of the vendor and to support that contention reference was made to a number of decided cases including Qurban Husain v. Chote and others (22 All. 102). Their Lordships did not accept this proposition and held that, according to Syed Amir Ali, the Sunni Hanafi Law relating to the right of pre‑emption was the law in force in this country either territorially or by custom and hence that law and not the Shia Law which never obtained official recognition of the Moghul Emperors was applicable to such cases. With all due respect to the learned Judges who decided this case, their reasoning does not appear to be very convincing. On the other hand, no fault can be found in the reasoning of the Allahabad High Court which has, consistently, held that it is not the law of the vendee which would apply to such cases, because the right of pre‑emption is not a personal right and being in the nature of a limitation on the power of the vendor it is the vendor's law or that of the pre‑emptor which would apply. In Qurban Husain's case, the vendors and the vendees were both Sunnis while the pre‑emptor was a Shia. It was held that the principles of reciprocity lay at the very root of the law of pre‑emption and as no such right could be enforced against a Shia he had no right to pre‑empt the sale. The following observations made at page 104 of the judgment are very significant: "it is true that according to the Hanifeea law it is not necessary that the pre‑emptor should be of the same religion as the vendor. On p. 477 of Bailie's Digest, 2nd Edition, that learned author says:‑" Islam on the part of the pre-emptor is not a condition". He goes on to say, "so that zimmees (i.e. infidels subject to and under the protection of a Muhammadan Government) are entitled to exercise the right of pre‑emption as between themselves or against Mooslims." Those words as between themselves are to my mind an indication that though a person need not be of the same religion as the vendor to entitle him to take advantage of the Hanifeea Law of pre‑emption, he must yet belong to a class of persons against whom a right of pre‑emption can be enforced." At p. 793 of his judgment in the Full Bench case Gobind Dayal v. Inayat Ullah, Mahmood, J., observed:‑ "The rights land obligations created by that law (i.e., the Muhammadam Law of Pre‑emption), as indeed by every other system with which I am acquainted, must necessarily be reciprocal. It has not been shown to' my satisfaction that it was ever the intention of Hanifeea law to confer a right of pre‑emption on a neighbour regardless of the fact that no reciprocal right could be enforced against him."

12. A similar question arose in Pir Khan v. Fayaz Husain and others (12 All. 813), and, it was held, that in case of a sale of property by a Shia to a Hindu which was pre‑empted by a Sunni, the Shia law of pre‑emption was applicable and the Sunni had no right to pre‑empt the sale. It was urged before their Lordships that in all such cases the Sunni Law alone was applicable but repelling this contention their Lordships observed as follows :‑ "It is urged that the Mohammadan Law of Pre‑emption which the Courts in these Provinces can apply is the Sunni Law alone and the reason given is that that was the law which was enforced before the British rule commenced. This is not an argument of much force if of any at all. Reliance is placed on the decision of the Calcutta High Court reported in Jog Deb Singh v. Mohomed Afzal. We cannot follow this ruling in view of the decisions of our own High Court. In the case of Abbas Ali v. Maya Ram, where the vendor and pre‑emptor were both Shia and the vendee a Hindu, the Shia rule of pre-emption was enforced."

13. The position has been summed up by another author, Babu Ram Verma, in his Mohammadan Law in India and Pakistan, 3rd Edition, page 544, in the following words : "The sect‑law applicable to pre‑emption cases shall be as follows:‑ (1) Where the vendor and the pre‑emptor are both of one sect (either Sunni or Shia) the law of their sect shall apply. (2) If the pre‑emptor is a Shia and the vendor is a Sunni, the Shia Law shall apply. (3) If the pre‑emptor is a Sunni and the vendor is a Shia, the Shia Law shall apply."

14. Keeping in mind these authorities and the principles laid down by the Allahabad High Court in the cases referred to above, we are of the opinion that this case is governed by the rules of Shia Law and, therefore, the respondents could not pre‑empt the sale on the grounds urged by them. The learned District Judge was not right in decreeing their suit. Accordingly, we accept this appeal with costs throughout set aside the judgment and decree of the District Judge and dismiss the respondents' suit. K. M. A. Appeal accepted.