How law of pre-emption came to India?
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, because in this respect the Muhammadan Law makes no distinction between persons of different races or creeds.
“A Musalman and a non-muslim being equally affected by principles on which shafa or right of pre-emption is established, and equally concerned in its operation, are therefore on an equal footing in all cases regarding the privilege of shafa.” (Hamilton’s Hedaya, vol. III, p. 592).
What was the effect of this?
In course of time, pre-emption became adopted by the Hindus as a custom. The rule of preemption had been adopted as a custom almost universally throughout these Provinces, even by villages which are purely Hindu.
Whether the rule of pre-emption apply where vendee is a Hindu?
The most important of the cases is that of Sheikh Kudratulia v. Mahini Mohan Shaha 4 B.L.R. 134. It was there ruled by a majority of the Judges of the Calcutta High Court (Peacock, C.J., and Kemp and Mitter, J.J.), that a Hindu purchaser is not bound by the Muhammadan Law of pre-emption in favour of a Muhammadan co-parcener, nor is he bound by the Muhammadan Law of pre-emption on the ground of vicinage, because the right of pre-emption in a Muhammadan does not depend on any defect of title on the part of his Muhammadan co-parcener to sell except subject to his right of pre-emption, but upon a rule of Muhammadan Law which is not binding on the Court, nor on any purchaser other than a Muhammadan.
The minority (Norman and Macpherson, JJ.), on the other hand, held that whenever a Muhammadan co-sharer or neighbour has a right of pre-emption, when property is sold by his neighbour or co-sharer, also a Musalman, his right is not defeated by the mere fact that the purchaser is a Hindu. The ruling of the majority of the Court was adopted by a Division Bench of allahabad Court in Moti Chand v. Mahomed Hossein Khan N.W.P.H.C. Rep. 1875 p. 147.
Further, a case may be referred, in which the pre-emptor was a Muhammadan, the vendor a Hindu, and the vendee a Muhammadan. This was the Full Bench case of Chundo v. Hakeem Alim-ood-deen, N.W.P.H.C. Rep. 1874 p. 28, in which it was ruled (Spankie, J., dissenting), that the application of Muhammadan Law in a suit for pre-emption between a Muhammadan claimant of pre-emption and a Muhammadan vendee on the basis of that law, is not precluded by the fact of the vendor not being a Muhammadan.
But it was subsequently and formally over-ruled in the Full Bench case of Dwarka Das v. Husain Bakhsh I.L.R. 1 All. p. 564 in which it was held (Stuart, C.J., and Pearson, J., dissenting) that where the vendor is a Hindu, a suit to enforce a right of preemption founded upon Muhammadan Law is not maintainable.
In this case, the majority of the Court followed in principle the judgment of Couch, C.J., in Poorno Singh v. Hurrychurn Surmah 10 B.L.R. 117 where it was held that the right of pre-emption arises from a rule of law by which the owner of the land is bound, and that it is essential that the vendor should be subject to that rule of law.
Inayatullah v. Gobind dayal
Before Allahabad High court, a case came to decide whether pre-emption apply when vendor or vendee of a property is Hindu?
The court elaborated the question at great extent and gave answer after observing and discussing all material. According the court, it is obvious that, as a matter of pure reasoning, if a Muhammadan pre-emptor, cannot enforce pre-emption against a Hindu purchaser, the vendor being a Muhammadan, it does not necessarily follow that a Muhammadan can enforce pre-emption where the vendor is a Hindu and the purchaser a Muhammadan. But the exigencies of the definite rules of the Muhammadan Law of preemption happen to be such as to render it essential that the various propositions relating to the subject should be governed by a common principle, and therefore consistent with each other.
When the vendor is Hindu
In all cases of pre-emption there are three parties to be considered, the pre-emptor, the vendor, and the purchaser. And so far as the question now under consideration is concerned, different cases may be imagined by supposing all, or one, or two of these three parties to be Hindus or Muhammadans.
The court while elaborating the proposition of hindu vendor, said that, the case of a Hindu co-parcener selling his share in his family-house to a Muhammadan. I should unhesitatingly say in such a case that the sale was subject to the incidents of the Hindu Law which governed the rights of the vendor, that if that law provided a rule of pre-emption, the rule should be enforced against the Muhammadan purchaser, whether his law recognized it or not.
In such a case there can be no question of the Muhammadan being deprived of a “property which has already become his by the laws of his country.” He bought it subject to the rules which governed it in the hands of his vendor, from whom he has derived his title, and the circumstance that he is not a Hindu will not save him from the incidents of the Hindu Law.
When vendee is Hindu
While applying above analogy, the court said, in case where vendee is hindu, the enforcement of the Muhammadan rule of pre-emption against the Hindu purchaser from a Muhammadan would be anything but “manifestly unjust and inequitable.
Property in the hands of a Muhammadan is subject to the pre-emptive claim of his Muhammadan co-parcener or neighbour; property in the hands of a Hindu is not so subject to the Muhammadan rule of pre-emption. The Muhammadan can claim the benefit of the law of pre-emption. The Hindu cannot claim the benefit of that law. And if the Hindu purchaser is to be affected by the Muhammadan pre-emptive claim, it would be on the principle of a cognate maxim that land passes with its burdens, terra transit cum onere, (the lands passes with its burden) and there would be no violation of the notions of justice, equity, and good conscience.
Inayatullah vs Gobind Dayal (1885) ILR 7 All 775
(full bench case, authored by Justice Syed Mehmood)