ABDUL HAKEEM KHAN, C. J.-Haji Niamatullah Khan and Zul Qadir have moved this petition under Article 203-B of the Constitution, so as to seek a declaration that: Clause (d) of sub-para. (3) of paragraph 25 of M. L. R. 115, granting a tenant first right of pre- emption, in respect of land, comprised in his tenancy, is against the Injunctions of Islam.
The learned counsel for the petitioner submits that the Law of Pre-emption is sanctified by Ahadis and the Muslim Jurists of repute have not allowed a tenant a right of pre-emption, what to speak of giving him priority over all those who have been recognised as persons, who have right to pre- empt. The learned counsel adds that a reference to all the textbooks of Muslim Personal Law and the source material would conclusively establish that right of pre-emption vests in three classes of persons and that a tenant has no right to pre-empt at all.
2. Mr. M.. Sardar, Khan, Advocate-General, who appeared on behalf of the State, submitted that the Provincial Government has already made a suggestion to the Federal Government that the impugned paragraph of the Regulation can be deleted with advantage.
3. Nevertheless we should like to go into the question raised over selves and make our recommendations so that tile matter is settled once and for all. The most authoritative collection of Ahadis is the one by Abu Abdullah bin Muhammad Ismail Bukhari and the Eighth Book (Para) of the same in Chapter 1396 and 1397 contains three Ahadis out of which two need be quoted. Ahadis 2102 and 2103 are being reproduced:-- In the first Hadis- Jabir bin Abdullah is reported to have said that the Messenger of Allah (may blessings and peace of Allah be upon him) ordained Shafa (pre-emption) in every property that has not been distributed but no sooner it is demarcated and paths are changed there will be no Shafa. . The second mentions an instance on the authority of Umro bin Sharir who said that "I was standing by Saad bin Abi Waqas that Miswar bin Mahzama came and placed his hands on one of my shoulders. At that Abu Rafa'e servant of the Holy Prophet (may the blessings and peace of Allah be upon him) also came". He then said "Oh Sa'ad I purchase my two houses which are in your Mohallah". Thereupon Sa'ad said "by God I am not going to purchase them" Then Miswar said "by God you shall have to purchase them". Then Sa'ad said "by. God I shall not pay you more than four thou--sands dirhams and those, too, in instalments". Abu Rafae said "I was being paid five hundred Dinars but had I not heard the Prophet (Be the blessings and peace of Allah upon him) saying that a neighbour has greater right on account of his proximity, I would not have given you these for four thousands dirhams while I was being paid five hundred dinars". He (Abu Rafa'e), therefore, granted both to him (Abu Sa'ad)." It will be seen that the two Ahadis are very clear on the point that a co- sharer has the right of pre---emption and that the followers of the Holy Prophet (may blessings and peace of Allah be upon him) are so miticulous that they would rather forego the best of bargains to comply with the directions of the Holy Prophet and this is why Abu Rafae gave his two houses to the continguous owner at a price lesser than that was offered to him by another. There are similar reports in Muslim and other recognised collections of Ahadis, namely, Ahmads Trimzi, Abu Daud Al Darmi and Ibne Majia.
4. In this context it will be useful to refer to Fatawa-i-Alamgiri, which is collection of opinions delivered by scholars of repute, when they were asked so to do by a great Emperor of this Sub- Continent Ghulam Mohayyuddin Aurangzeb. In Chapser II, paragraph 29, the order of preference has been indicated in the following: So to speak a co-sharer has a preference over the partner in rights and a partner in rights has got a preference over the contiguous owner. A reference to the chapter on the classes of pre-emptors, paragraph 53 of the book "The Muslim Law of Pre-emption (Shufa) by Alhaj Muhammad Ullah Ibn S. Jung will also support the said classification and preferences. Hedaya, which is yet another authority of repute in Chapter I affirms the afore--mentioned classifications and preferences and proceeds on to quote the following traditions to support its conclusions:-
(a) The right of Shaffa holds in a partner who has not' divided off and taken separately his share:
(b) The neighbour of a house has a superior right to those lands ; and if he be absent, the seller must wait his return : provided, however, that they both participate in the same road ; and
(c) A neighbour has a right, superior to that of a stranger, in .The lands adjacent to his own.
5. The classification and the order of priority indicated above gets added support from the Fatwas given by Maulana Mufti Muhammad Shafi, in reply to Questions 1252 and 1254 on pages 692 and 693 of the compilation titled "Fatawa Darul Aloom Dewband" by Maulana Mufti Muhammad Shafi.
By Question 1252 it was enquired as to whether a relation, who was not a co-sharer or a neighbour would have a right of pre-emption, the reply was in the negative. The Maulana observed:- i.e. Right of pre-emption was on the ground of co-sharership in the property sold or on account of contiguity thereto. Relationship with the vendor did not come in the Chapter at all. In support of his reply the Maulana quoted Hedaya Chapter, relating to Shafa (page 387) and the quotation reads:- The English rendering of the quotation will be "right of pre-emption vests in the persons who are co-sharers in the property sold; then in the co-sharers in the rights of the property such as water and way and then in the neighbour". The reply given to Question 1254 reiterates that right of pre- emption is based on co-sharership, contiguity and there is no right of pre-emption otherwise.
6. Mejelle, the renowned Code, promulgated under the authority of Turkish Sultans, which is still being followed as a common law of the Hanafi Fiqa in the Muslim World can also be referred to with advantage. In Article 950 of the Mejelle, English translation by C. R. Tyser (1967 Edn.) "Shafa" has been defined as the right of a person to "acquire possession of a mulk property sold for the amount which the property cost the purchaser". As to what is "Mulk" a reference to Article 125 ibid would show that it is a thing of which a man becomes owner, whether it be the thing itself or whether it be the use. Article 1008 ibid reads: There are three grounds for the acquisition of mulk property sold, for the amount, which the property cost the purchaser (Shufa).
The first is to be a part owner of the thing itself sold. Like two persons having undivided shares in mulk immovable property.
The second is to be a person who shares in right (Khalit) attached to the thing sold, like owning in common a right of Shurb Khas (Article 955) and Tariq Khas (Article 956).
The third ground is the being a neighbour adjoining to the thing sold.
As far as priority is concerned, Article 1009 ibid indicates it and the same reads:-- First, the right of pre-emption belongs to the person who is part owner o the thing, secondly, to the person who shares in rights, in which the thing sold shares, thirdly, to the adjoining neighbour.
And when the first claims the right of pre-emption, the others cannot, and when the second claims it; the third cannot do so.
7. The above classification and preference given to each class finds mention in all the textbooks on the Muslim Law and Jurisprudence and in this context we need only refer to Article 231 of the Principles of Mohammadan Law by Mulla (16th Edn.); last paragraph on page 273 of the Mohammadan Jurisprudence by Abdur Rehman (1974 Edn.); page 600 of the Mohammadan Law by S. Amir Ali, page 356 of Mohammadan Law by Wilson, pages 179-180 of the Baillie's Digest of Mohammadan Law.
8. It remains to be seen as to whether there is any Injunction of Islam, which concedes the right of pre-emption in favour of a tenant. It appears to us that in this regard, reference to Fatawa-i- Alamgiri, Fatawa Qazee Khan, Baillie Digest on Mohammadan Law, Hedaya, Mohammadan Law by S. Amir Ali and the observations of Mulla in Principles of Mohammadan Law (16th Edn.), which are based on some reported judgments, is not only going to be helpful but conclusive.
9. In Fatawa-i-Alamgiri Kitab-e-Shufae, First Chapter, the following observations in Arabic have been made by the compilers:- The translation of the above quotation in English will be as follows :- One of the pre-conditions for Shufa is the Milk i.e. Ownership of the pre-emptor at the time of the sale in the houses which he wants to pre-empt. He does not have a right of pre-emption on account of a house in which he lives with permission. He neither has the right on account of a house, which he has himself sold before the sale. Nor on account of a house which he has converted into a mosque. One of the pre-conditions therefore is that a pre-emptor must establish his milk i.e. Ownership when it is denied by a positive evidence. If the vendee denies the milk of the pre-emptor in the house to be pre-empted he cannot have it unless be establishes its title that it belongs to him and this is what Imam Abu Hanifa and Imam Mohammad have said and one of the two reports of Abu Yusuf is also to this effect.
The position has been explained further in Fatawa-i-Alamgiri by the following observations:-- The translation of the above in English:- Would be that "(right of pre-emption) becomes vested on account of milk only so much so that if a house by the side of a waqf house is sold there will be no right of pre-emption in the waqf and Mutawali will also not pre-empt it. This is in accordance with Fatawa-i-Kafiyah of Abul Lais. It will show that if a house is waqf for the benefit of a person in respect where of the private individual has no right of pre-emption on account of that house and this is what is stated in Muhit. A person who has a house in a land which is waqf that person shall have no right of pre-emption and if he sells his house then the contiguous owner will also have no right of pre-emption. It has been so stated by Sirajiyya.
It comes to this that Fatawa-i-Alamgiri reiterates that it is milk alone which gives a right of pre- emption and that ownership in the property which by itself is not amenable to pre-emption will not confer a right of pre-emption. So to speak the principles of receprocity which will be noticed in the sequel are deducable from the above-quoted observations in Fatawa-i-Alamgiri.
10. On pages 477 and 478 of Baillie Digest on Mohammadan Law, the learned author has made the following observations:- There must be milk or ownership of shufee, or pre-emptor, at the time of purchase, in the mansion on account of which he claims the right of pre-emption. So that he has no right on account of a mansion of which he is merely the tenant for hire, or that he has sold before the purchase, or has converted into a masjid or place of ownershipWhen it is said that akar are proper objects of the right of pre-emption, it is by virtue of a right milk or ownership that they are so. , If there is any need of further authority, reference with advantage may be made to Mohammadan Law by Amir Ali, copied by Raja Said Akbar, Volume I, on page 712 whereof the following observations appear:- "To entitle a person to claim the right of pre-emption, the milkiat or proprietary interested in the property on which he basis his right must be in him, but it is not necessary that he should be in actual possession of it. (1) Thus a tenant (2) or a mortgagee or a mere benamidar is not entitled to pre-emption on any of the grounds recognised by law."
In paragraph 231 of Muhammadan Law by Mulla (4th Edition), the learned author while explaining the 3rd category of pre-emptors, namely, owners of the adjoining immovable property, observes that neither tenants nor persons in possession of such property, without lawful title, or Waqif or Mutawali are allowed to pre-empt. This explanation is based on Gooman Singh v. Tripool Sing ((1867) 8 W R 437), Beharee Ram v-Shoobhundra ((1868) 9 W R 455) and Jiraj Kanwar v. Irfan Ali (52 All. 686). Wilson in Article 360 of his Digest on Mohammadan Law (4 Edition) on the basis of two of the aforementioned authorities and Sakina Bibl also observes :- "A mere tenant of contiguous land cannot claim pre-emption; nor can a mere possessor with no legal title: Relevant extract from the judgment in Mst. Sakina v. Amiran Bibi ((1888) 10 All. 472) relied upon by Wilson reads as under:- "The learned counsel argued that the passage in the Hedaya meant that actual physical possession of a share, that is to say, of the pre---emptive share, was a condition precedent to the exercise of the right of pre-emption. The translation 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 of a reversionary right, or any other kind of contingent right, or any interest which falls short of full ownership. For instance, in the case of usufructuary mortgagee who is in possession, the application of the passage would require holding that no right is possessed by such a mortgagee. I 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."
It has also been observed in the earlier part of this opinion that a right in property which cannot be pre-empted cannot be a basis for a right of pre-emption over the: others is a proposition which gets support from AIR 1929 Pat. 214 wherein the learned Judges had no difficulty in coming to the conclusion that a Muqararidar, a kind of tenants, himself could not claim pre-emption on the ground of co-sharership for the doctrine of receprocity which is well understood under Muhammadan Law would not permit pre-emption against Muqararidar.
11. It would follow that in addition to the universally recognize and acknowledged Ahadis of Holy Prophet (be peace and blessings of Allah upon him) there is consensus of opinion of all the writersth on Muhammadan Law that there are three classes of persons in whom right of pre-emption vests, namely: "(1) Co-sharer ;
(2) Participator in ammunities and appendages; and
(3) Contiguous owners."
And that it is the right of ownership in the property or rights which invest a pre-emptor with the preferential right of pre-emption and that mere possession will not give a right of pre-emption. It is, therefore, clear to us that a tenant in possession on behalf of the landlord who has been given a right of pre-emption in preference to the right-holders recognized by the Muslim Writers on the Law of Pre-emption has no right of pre-emption whatsoever and the question of giving preference to him over the three classes of persons, enumerated above, is in flagrant violation of the Injunctions of Islam. We will therefore, declare that clause (d) of sub-para. (3) of paragraph 25 of the M. L. R. 115 is repugnant to the Injunctions of Islam and recommend that the aforesaid clause shall be deleted with immediate effect.
S. A. H.