In 1885, while deciding a case related to pre-emption, the Allahabad high court considered the question in detail.
The court first quoted the work of Sir W. Macnaghten and then a very distinguished Sanskrit scholar, Dr. Rajendralal Mitra.
Sir W. Macnaghten
In introduction of Sir W. Macnaghten’s Principles and Precedents of Muhammadan Law (p. 14). He says:
“Sales of land and other immoveable property are clogged with an incumbrance, which is not, however, peculiar to this Code. I allude to the law of pre-emption. This confers the privilege on a partner or a neighbour to preclude any stranger from coming in as a purchaser, provided the same price be offered as that which the vendor has declared himself willing to receive for the property to be disposed of.”
Then, after discussing the question whether pre-emption prevailed originally among the Hindus, he goes on to say:
“I have found in the Maha Nirvana Tantra, a work which chiefly treats of mythology, a passage which would seem to imply that preemption is recognized as a legal provision according to the notions of the Hindus. But it remains yet to be decided whether this shall be held to be practical law or not.”
Whether the right existed under the old Hindu Law
The court then went on to considered whether the right existed under the old Hindu Law, whether the Muhammadans found it existing when they came into India. The court quoted from a very distinguished Sanskrit scholar, Dr. Rajendralal Mitra.
After stating that the Smritis, from which the Hindu Law is derived, contain no reference to the right of pre-emption, the learned scholar goes on to say:
“The word samanta is everywhere defined to mean owner of an adjoining property, and not the right which such an owner has to claim precedence in purchasing his neighbour’s property.
Dr. Monier Williams, in his English Sanskrit Dictionary, has given prakhyata as the equivalent of pre-emption, but this meaning has not been given in any original Sanskrit work on law. The court therefore, rejected it too, as of no value in the decision of the question at issue.
The absence, however, of a concrete term to imply pre-emption does not necessarily imply the absence of such a right, and there are indications to the contrary in our law-books.
Pre-emption pre-supposes living in joint families, and the desire to exclude strangers from intruding into a family-house or the privacy of a zenana. The Hindus felt this desire at an early period, and tried to restrain co-sharers from selling their shares to outsiders; but this device never developed itself into a positive law, and the latest digest-writer, the author of the Dayabhaga, in a manner sets it aside by saying that sales of undivided shares are immoral, but valid in law. In so far, the claim to pre-emption in cases where it is most urgently demanded is entirely abandoned.
Had there been any authentic law in existence, it would have for certain been cited in some case or other, but there is no record of any such citation. These remarks are certainly not in keeping with the positive rules laid down in the Maha Nirvana Tantra, and quoted in the preface to Macnaghten’s Muhammadan Law; but those rules, not having been recognized by any of our current law-books, cannot be held binding or authentic.
It has been nowhere recognized as an authority on law. Nor has it been anywhere quoted in a law digest. Moreover, the Tantra is not by any means an ancient work. The belief is, that the most authentic Tantras number sixty-four, but the name of the Maha Nirvana does not occur among them, and it must therefore be accepted to be of secondary importance, even as a Tantra.
The administration of law by Kazis during the Muhammadan period gave wide currency to haq-i-shufa, and its advantage became so apparent to the Hindus that they attempted to naturalize it by working on its principles in the Tantra in question, where an interpolation could easily be effected without any fear of detection. This must have happened three or more centuries ago.”
The court further quoted Dr. Jolly of the University of Wurzburg, in Germany, who acted as the Tagore Professor of Hindu Law at the University of Calcutta. He said:
“The only trace of pre-emption in the Hindu law which I am aware of occurs in a text quoted in the Mitakshara and other standard law-books. It is as follows: ‘Transfers of landed property are effected by six acts by consent of fellow-villagers, kinsmen, neighbours, and co-parceners, and by gift of gold and water.’
This text indicates clearly the existence in the early period of the Hindu Law of a feeling that a transfer of landed property is not valid unless the neighbours, fellow-villagers, and others who are but remotely concerned with it should have given their consent to its being effected.
These persons might therefore be supposed perhaps to have been invested with a right of pre-emption. Whatever notions may have been prevalent on this subject in the early period of Hindu Law, this much is clear, that the compilers of those commentaries and digests of law on which the modern law is based did not approve of any sort of pre-emption.
Thus the Mitakshara, in dealing with the above text, deprives it entirely of such legal significance as may have once belonged to it. The consent of fellow-villagers, according to the Mitakshara, is required for the publicity of the transaction merely; but the contract is not invalid without their consent. The consent of neighbours tends to obviate future disputes concerning boundaries. The consent of kinsmen and co-parceners (dayada) is indispensable when they are united in interest with the vendor. If they are separate from him, their consent is useful, because it may obviate any future doubt as to whether they are separated or united, but the want of their consent does not invalidate the transaction.
The gift of gold and water serves to ratify the transfer of property–(see Colebrooke’s Mitakshara, 1, 230–232). This interpretation of the Mitakshara may be viewed as an instance of the way in which the Indian commentators used to dispose of obsolete laws. At the same time, it shows clearly that anything approaching to preemption was entirely foreign to the ideas of such an eminent authority as Vijnanesvara the author of the Mitakshara. Nor is there any other trace of pre-emption in the Hindu law-books. The Tantras, generally speaking, have never been recognized as authoritative law-books in any sense of the word.”
After quoting above scholars, the court said,
“Adopting the authority of these eminent Sanskritists, there is no doubt in my mind that the question which Sir William Macnaghten regarded as open to doubt is in reality not so, and that there has never been such a right as that of pre-emption recognized by the Hindu Law, though I cannot forget that the rule of that law which prohibits any member of a joint undivided family from selling his share in the joint property without the consent of his co-parceners, aims at a result not dissimilar to that which the Muhammadan Law of pre-emption is intended to achieve.”
In Ramrutun Singh v. Chunder Naraen Rai 1 S.D.A. Rep. 1 which is the earliest reported case, having been decided in 1792, it was held by the Bengal Sadr Diwani Adawlat, that among the holders of separate shares of a hereditary zamindari, each, according to the Hindu Law, may sell his share to whom he pleases, and the other sharers have no necessary right of pre-emption.
And in Ram Kanhaee Rai v. Bung Chund Bunhoojea 3 S.D.A. Rep. 17 decided in 1820 it was held that vicinage and partnership did not confer any right of pre-emption according to the Hindu Law as current in Bengal.
A similar view of preemption was taken by the Madras Diwani Adawlat in Kristnien v. Sendalangara 3 Morley’s Digest p. 344 decided in 1849. In that case, before judgment was delivered, the Pandits who were at that time consulted as assessors upon points of Hindu Law, gave it as their opinion that no general right of pre-emption existed under that law, and could not be enforced except in cases
“where there exists a resolution in a village to the effect that a share-holder in such village should sell his land only to another shareholder of the same village, and if an inhabitant sell his estate to a stranger or to the inhabitant of another village, the other inhabitants of the village where the estate in question is situated, are competent to claim the right of pre-emption of such estate.”
This, however, only shows that special local custom, when duly adopted, would override the general Hindu Law. These cases leave no doubt in my mind that the Courts have never recognized the rule of pre-emption as a part of the Hindu Law.
Inayatullah vs Gobind Dayal: (1885) ILR 7 All 775