' NAZIM HUSSAIN SIDDIQUI, J.---Petitioner Abdul Ghafoor Khan had filed Suit No,209 of 1993 against the respondents before learned 1st Senior Civil Judge, Shikarpur for pre-emption and permanent injunction relating to a Sikni Katcha House, situated in village Dakhan, Taluka Garhi Yasin, which was sold to respondents Nos. 1 to 3 by respondents Nos.4 to 7 on 2-8-1993 through registered sale- deed for a consideration of Rs,65,000. It is alleged that on getting above information, the petitioner on 7-9-1993 declared his intention to assert the right of pre-emption by exercising the right of Talab-e-Muwasibat on the grounds of Shafi-e-Jar and Shafi-e-Khalit. He also made second demand in presence of the witnesses and thereafter filed the suit for pre-emption.
2. On the applications of respondents Nos. 1 to 3, under Order 7, Rule 11, C.P.C., the plaint of the petitioner was rejected on the plea that right of pre-emption could not be claimed by a Muslim, when the vendor was Hindu or European, though the vendee could be Muslim. On the same ground, learned District Judge. Shikarpur, dismissed the appeal. Revision filed by the petitioner before the High Court also met the same fate.
3. Learned High Court while dismissing the Revision observed as follows:-- "The right of pre-emption can be enforced on sale by a vendor who is subject to Muslim Personal Law. Hindu vendor cannot be subject to Personal Law of Muslim.
' In the present case the owner viz. Vendor is Hindu, he cannot be subject to the Muslim Personal Law and the property owned by such Hindu cannot be said to be having inherent right of pre- emption. I am supported in my view from Full Bench decisions of Allahabad High Court in Dwarka Das v. Hussain (1978) ILR (Allahabad) 564 wherein 'the question was whether a suit to enforce right of preemption founded upon Muhammadan Law was maintainable where the vendor was Hindu.
The opinion of Full Bench was that where the vendor is Hindu a suit to enforce a right of pre- emption founded upon Muhammadan Law is not maintainable."
' It is noted that a learned Judge of High Court of Sindh (Mr. Justice Saiduzzaman Siddiqui, as he then was) in the case reported as Sundri Bai v. Ghulam Hussain 1982 CLC /441 held that in order to enforce the claim of pre-emption it was not necessary that pre-emptor or purchaser shall be Muslim and that right of pre-emption, being attached with the land could be enforced against the property irrespective of the fact that who held its possession. Different High Courts from Indian jurisdiction examined this point but had taken contrary views. There is no uniformity. High, Court of Madrass held that law of pre-emption, by reason of its placing restrictions upon the liberty of transfer of property, could not be regarded to be in consonance with the principles of justice, equity and good conscience.
4. Leave to appeal is granted to consider with reference to the circumstances of this case, that whether right of pre-emption can be enforced on sale by a Hindu vendor who is not subject to Muslim Personnel Law.
(Sd.)
' Nazim Hussain Siddiqui, J.
' I agree for grant of leave for which I have also appended a separate note.
(Sd.)
Iftikhar Muhammad Chaudhry, J.
' IFTIKHAR MUHAMMAD CHAUDHRY, J.---I respectfully subscribe to reasons assigned by my learned brother for granting leave to appeal. In addition to it, I would like to add that in the judgment of this Court in the case of Government of N.-W.F.P. Through Secretary, Law Department v. Said Kamal Shah PLD 1986 SC 360 it has been observed that "The law of pre-emption be it customary or Islamic concerns exclusively and wholly, 'Maamlat' that is, social dealing of individuals, orderly arrangement of their affairs, and for such matters the rationale, the purpose, the mischief or wrong sought to be avoided and the remedy or advantage sought to be advanced is readily ascertainable. Another outstanding feature of the Islamic Law of Pre-emption is that unlike the Islamic Law of inheritance, marriage etc. It is equally applicable to Muslims and non-Muslims".
(Emphasis provided). Therefore in view of these observations inter alia matter requires to be dealt with to find out as to whether the impugned judgment is not sustainable because there is no restriction in Islam for enforcing the right of C pre-emption by or against non-Muslims.
(Sd.)
Iftikhar Muhammad Chaudhry, J.
' RANA BHAGWAN DAS, J.---I am in respectful agreement with the view expressed by my learned brothers Nazim Hussain Siddiqui and Iftikhar Muhammad Chaudhry, JJ. That leave to appeal may be granted in this case but I would venture to add a few lines of my own.
2. As per D.F. Mulla's Principles of Mahomedan Law the right of. Shufaa or pre-emption is a right which the owner of an immovable property possesses to acquire by purchase another immovable property which has been sold to another person. Object of pre-emption law is to enable landowners to avoid advent of an undesirable neighbour. Holy Prophet (peace be upon him) laid down that neighbour has a right superior to that of a stranger in land adjacent to his own. Truly speaking object behind the application of right of Shufaa is to safeguard the privacy of Muslim families. Right of pre-emption therefore, may not be enforceable in case of commercial properties because the question of disagreeable neighbour.In such cases may not arise. There was some doubt as to whether pre-emption is a mere personal right or an incident of property. It was predominantly held that the right of pre-emption is a right of re-purchase from the. Buyer. It was also held with greater authority that it is an incident of property. The Supreme Court of India has held that the right of pre-emption is an incident annexed to the property, but although it is essentially a right in rem, its exercise, from the time it arises up to the time of the decree, is restricted as a personal right, which is neither heritable nor transferable. Indian Supreme Court is of the view that even if the law of pre-emption creates a right which attaches to property, it creates a restriction on the right guaranteed under Article 19(1) of the Indian Constitution to acquire, hold and dispose of property.
3. The right of pre-emption is recognized by custom among Hindus who are either natives of, or are domiciled in Bihar, Sylhet and certain parts of Gujarat, such as Surat, Broach and Godhra, and it is governed by the rules of Muhammadan Law of pre-emption except in so far as such rules are modified by such custom. Under the Mahomedan Law, non-Mahomedans are as much entitled to exercise the right of pre-emption as Mahomedans. (A Digest of Mahommdan Law by Baillie, 477).
Therefore, during the Mahomedan rule in India, claims for pre-emption were entertained by the Courts of the country, whether they were preferred by or against Hindus. In this way, the Mahomedan Law of Pre-emption came to be customary law of Bihar and Gujarat.
4. There appears to be serious conflict of opinion between the Calcutta High Court and Allahabad High Court on the question whether vendee should be a Muslim and pre-emption can be claimed against a Hindu purchaser but the rule appears to have been set at rest by Sindh High Court in Sundri Bai v. Ghulam Hussain 1982 CLC 2441, authored by Saiduzzaman Siddiqui, J. (as his Lordship then was).
5. Adverting to the Commentary on Mussulman Laws as contained in the Hedaya translated by Charles Hamilton, it may be pointed out that Zimmees, in purchase and sale, are the same as Mussulmans, as the Prophet (p.b.u.h.) had said "Be regardful of Zimmees, for they are entitled to the same right, and subject to the same rules with Mussulmans" and also because being, under the same necessities, in the transaction of their concerns, as Mussulmans, they stand in need of the same immunities. They are, therefore, the same as Mussulman, with respect to purchase and sale, excepting, however, in the sale of wine and pork. (See The Hedaya by Charles Hamilton, Premier Book House, Shaheen Market, Anarkali, Lahore 1994 Edition, page 310).
6. As the question raised before this Court is of first impression and there is no authoritative judgment by this Court it is all the more necessary to thrash out the law on the question involved and to decide the controversy once for all. Leave to appeal, is therefore, granted to examine the question raised and all other related questions.