23 April 1954
Supreme Court


Case number: Appeal (civil) 15 of 1951






DATE OF JUDGMENT: 23/04/1954


CITATION:  1954 AIR  417            1955 SCR   70  CITATOR INFO :  RF         1962 SC1476  (3,22,25,31)  R          1966 SC1977  (3,6)

ACT:    Custom-Pre-emption-City  of Banaras-Local Custom of  Pre- emption-Such  right-Incident  of property and  attaching  to land.

HEADNOTE:    HEld,  that a local custom of pre-emption exists  in  the city of Banaras and the right attaches at least to all house properties situated within it and no such incident of custom is proved which would make the right available only  between persons  who are either natives of Banaras or are  domiciled therein. When a right of pre-emption rests upon custom it becomes the lex  loci  or  the law of the place and  affects  all  lands situated  in  that  place irrespective of  the  religion  or nationality  or domicile of the owners of the  lands  except where  such incidents are proved to be a part of the  custom itself. The  right  of pre-emption is an incident  of  property  and attaches to the land itself. Byjnath  v.  Kapilmon  (24 W.R. 95) and  Parsashth  Nath  v. Dhanai’ (32 Cal. 988) disapproved.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 15 of 1951. Appeal from the Judgment and Decree, dated the 29th  August. 1944,  of the High Court of Judicature at  Allahabad  (Mulla and Yorke JJ.) in First Appeal 71 No.  157  of 1942, arising out of the Judgment  and  Decree, dated  the  19th November, 1941, of the Court of  the  Civil Judge at Banaras in Original Suit No. 79 of 1941. Achhru  Ram, (N. C. Sen and R. C. Prasad, with him) for  the appellant.



C.K. Daphtary, Solicitor-General for India and S. P.Sinha,    (J. C. Mukherji, Shaukat Husain, and S. P. Varma,     with them) for respondent No. 1. 1954.  April 23.  The Judgment of the Court was delivered by MUKERJEA, J.-The plaintiff, who is the appellant before  us, commenced the suit, out of which this appeal arises, in  the Court of the Civil Judge at Banaras (being Original Suit No. 79  of 1941) for enforcement of his right of pre-emption  in respect of an enclosed plot of land with certain  structures upon  it,  situated within Moballa Baradeo in  the  city  of Banaras and bearing Municipal No. D 37/48.  The premises  in suit admitted by belonged to defendants Nos. 2 to 5, who are residents  of  Calcutta and they sold. it  by  a  conveyance executed on the 29th March, 1941, and registered on the  3rd of  April following, to defendant No. 1, also a resident  of Calcutta, for the price of Rs. 7,000.  The plaintiff is  the owner of the two premises to wit, premises Nos.  D 37/85 and D  37 /44, within the same Mohalla of the city  of  Banaras, which are in close proximity to the property in dispute  and adjoin  it on the northern and eastern  sides  respectively. It  is  averred  by the plaintiff that there  is  from  very early,  time  a  custom prevalent in  the  city  of  Banaras according to which the plaintiff was entitled to claim  pre- emption  of  the  property  in  dispute  on  the  ground  of vicinage.  It is said that as soon as the plaintiff received news  of the sale, he made an immediate assertion or  demand of  his rights and repeated the same in the presence of  the witnesses as required by Muhammadan Law and he further  sent a  registered  notice to defendant No. I on  the  21st  May, 1941,  askine  the latter to transfer the  property  to  the plaintiff on receipt of the price which he had actually paid to the vendors.  As the defendant No. 1 did not comply  with this demand the present suit was brought, 72 The  defendant No. 1 alone contested the suit and the  pleas taken  by  him in his written statement  can  be  classified under four heads.  In the first place, he denied that  there was any custom of pre-emption amongst nonMuslims in the city of  Banaras  as alleged by the plaintiff.  The  second  plea taken  was that even if there was any custom of  pre-emption it could not be availed of in a case like this where neither the  vendors nor the vendee were natives of or domiciled  in Banaras  but  were residents of a different  province.   The third contention raised was that the plaintiff had not  made the  two  demands  in  the  proper  manner  as  required  by Muhammadan  Law  and by reason of  non-compliance  with  the essential pre-requisites to a claim for preemption, the suit -was  bound to fail.  Lastly, it was contended that  as  the plaintiff  himself was the landlord of the property in  suit and  the, vendors were his tenants, he could not, under  any law  or  custom, eject his own tenants by  exercise  of  the right of pre-emption. The  Civil  Judge who tried the suit held, on  the  evidence adduced in the case, that there was in fact a custom of pre- emption in the city of Banaras, the incidents of which  were the  same  as in Muhammadan Law.  He held however  that  the custom being a local custom it could not be enforced against either  the  vendors or the vendee in the present  case,  as none  of them were natives of or domiciled in Banaras.   The trial judge also found that the ’plaintiff did not make  the requisite demands which are -mandatory under Muhammadan Law. The  result was that the plaintiff’s suit was dismissed  and in  view of the findings arrived at by him, the Civil  Judge did  not consider it necessary to decide the question as  to whether the plaintiff being himself a landlord could  assert



any  claim for pre-emption against his tenants on the  basis of a custom. Against  this decision the plaintiff took an appeal  to  the High Court of Allahabad which was heard by a Division  Bench consisting of Mulla and Yorke JJ.  The learned Judges agreed with  the trial Court in holding that although there  was  a custom  of  pre-emption  in the city of  Banaras,  -yet  the necessary  condition  for  enforcing  the  custom  in   that locality was that the vendor 73 and the vendee must be natives of or domiciled in the  city. As  this  condition  was  not fulfilled  in  this  case  the plaintiff’s claim could not succeed.  In the result the High Court affirmed the decision of the trial judge and dismissed the appeal.  The other questions as to whether the plaintiff had made thedem’ands in strict compliance with the rules  of Muhammadan  Law  and  whether  he  could  claim  pre-emption against  his own tenants on the basis of a right  by  custom were  left  undecided.  The judgment of the  High  Court  is dated  the  29th August, 1944.  After  this,  the  plaintiff applied for leave to appeal to the Judicial Committee.  This application was refused by the High Court but he got special leave  under an order of the Judicial Committee,  dated  the 11th   December,   1945.   After  the   abolition   of   the jurisdiction  of  the Judicial Committee  the  appeal  stood transferred to this Court for disposal. The  contentions  that  have been raised before  us  by  the parties  to this appeal practically centre round one  point. It is not disputed by either side that there is a custom  of pre-emption  in the entire city of Banaras; but whereas  the respondents  contend  that the  custom  obtains  exclusively amongst  persons  who are inhabitants of  the  city  ’or-are domiciled  therein,  the case of the appellant is  that  the custom  admits of no such restriction or limitation and  all those  who  own  property in the city are  governed  by  the custom,  it  being immaterial whether or not  they  are  the natives  of  the place or are or are  not  resident  owners. Various contentions have been raised by the learned  counsel on  both sides in support of their respective cases  and  we have  been treated to an elaborate discussion regarding  the nature  of the right of pre-emption as is recognised in  the Muhammadan Law and the incidents that attach to it, when  it is not regulated by law but is founded on custom said to  be obtaining in a particular locality.’ Before we examine the arguments that have been placed before us by the learned counsel appearing for the parties, it  may be  necessary to make a few general  observations  regarding the  law or laws which govern the exercise of the  right  of pre-emption in India at the present day. 10 74 The  Privy Council has said in more cases than one(1),  that the law of pre-emption was introduced in this country by the Muhammadans.  There is no indication of any such  conception in  the  Hindu Law and the subject has not been  noticed  or discussed either in the writings of the Smriti writers or in those of later commentators.  Sir William Macnaghten in  his Principles and Precedents of Mahomedan Law (2 ) has referred to  a passage in the Makanirvana Tantra which, according  to the learned author, implies that pre-emption was  recognised as a legal provision according to the notions of the Hindus. But the treatise itself is one on mythology, not on law  and is admittedly a recent production.  No value can be attached to  a  stray passage of this character the  authenticity  of which is not beyond doubt.



During  the  period of the Mughal emperors the law  of  pre- emption was administered as a rule of common law of the land in  those  parts  of  the  country  which  came  under   the domination  of  the Muhammadan rulers, and  it  was  applied alike  to Muhammadans and Zimmees (within  which  Christians and Hindus were included), no distinction being made in this respect  between persons of different races  and  creeds(3). In course of time the Hindus came to adopt pre-emption as  a custom for reasons of convenience and the custom is  largely to  be found in provinces like Bihar and Gujerat  which  had once been integral parts of the Muhammadan empire. Opinions  differ  as  to whether the  custom  of  preemption amongst  village  communities in Punjab and other  parts  of India   was   borrowed  from  the   Muhammadans   or   arose independently  of the Muhammadan Law, having its  origin  in the  doctrine of "limited right" which has always  been  the characteristic feature of village communities(4).   Possibly much  could be said in support of either view, and there  is reason  to  think  that even where the  Muhammadan  Law  was borrowed (1)Vide  Jadulat v, Janki Koer, 39 I.A. 101,  106;  Digambar Singh v. Ahmad, 42 I.A. 10, 18. (2)  Vide, page 14. (3)  Vide Hamilton’s Hedaya, Vol.  III, P. 592. (4)  Vide P.R. 98 of 1894. 75 it  was  not always borrowed in its entirety.  It  would  be useful  to  refer  in  this  connection  to  the   following observations  of  the  Judicial  Committee  in  Digambar  v. Ahmad(1): " In some cases the sharers in a village adopted or followed the  rules of the Mahomedan Law of pre-emption, and in  such cases  the  custom of the village follows the rules  of  the Mahomedan  Law  of  pre-emption.  In other  cases,  where  a custom  of pre-emption exists, each village community has  a custom of pre-emption which varies from the Mahomedan Law of pre-emption and is peculiar to the village in its provisions and its incidents.  A custom of pre-emption was doubtless in all  cases the result of agreement amongst the  shareholders of  the  particular village, and may have  been  adopted  in modern times and in villages which were first constituted in modern times." It  is not necessary for our present purpose to pursue  this discussion any further. 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’ Here again there was no uniformity  of views expressed by the different High  Courts in  India and the High Court of Madras definitely held  that the   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(2).  Hence the right  of pre-emption  is not recognised in the Madras  Presidency  at all  even  amongst Muhammadans except on the  footing  of  a custom.   Rights of preemption 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 (1)  42 I.A. 10, 18.



(2)  Vide Krishna Menon v. Keshavan, 20 Mad. 305. 76 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  persuasion 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.   Apart from these a right of pre-emption can be created by contract and  as has been observed by the Judicial Committee  in  the case  referred  to above, such contracts are  usually  found amongst sharers in a village.  It is against this background that  we propose to examine the contentions that  have  been raised in the present case. The  first  question  that has been  mooted  before  us  is, whether 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 or is the right merely one of  re- purchase,  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.  The learned counsel for the appellant  has pressed   for  acceptance  of  the  first  view  while   the Solicitor-General   appearing   for  the   respondents   has contended,  that by no accepted principles of  jurisprudence can  the  preemptor  be  said to have  an  interest  in  the property of the vendor.  It is pointed out that the right of preemption  arises for the first time when there is  a  com- pleted sale and the title of the purchaser is perfected  and if the right was one attached to the property, it must  have existed prior to the sale and should have been available not merely  in case of sale but in all other kinds  of  transfer like gift and lease. This latter line of reasoning found favour with the majority of  a Full Bench of the Calcutta High Court in the  case  of Sheikh Kudratulla v. Mahini Mohan(1), (1)   Beng. L.R. (Full Bench Rulings) page 134. 77 where the question arose whether, when a Muhammadan sold his property  to  a Hindu purchaser the cosharer of  the  former could  enforce  a  right of pre-emption  against  the  Hindu vendee under the Muhammadan Law.  The question was  answered in the negative by the majority of the Full Bench and Mitter J. who delivered the leading judgment, while discussing  the nature of the right of pre-emption observed as follows: "  If that right is founded on an antecedent defect  in  the title of the vendor, that is to say on a legal disability on his part to sell his property to a stranger, without  giving an opportunity to his coparceners and neighbours to purchase it  in the first instance, those coparceners and  neighbours are  fully entitled to ask the Hindu purchaser to  surrender the property, for although as a Hindu, he is not necessarily bound by the Mahomedan Law, he was at any rate bound by  the rule of justice, equity and good conscience to inquire  into the  title of his vendor; and that very rule  also  requires that we should not permit him to retain a property which his vendor had no power to sell.  If, on the contrary, it can be shown,  that  there was no such defect in the title  of  the vendor,  or  in  other  words that  he  was  under  no  such disability,  even under the Mahomedan Law itself,  it  would



follow  as a matter of course, that there was  no-defect  in the   title   of  the  purchaser,  at  the   time   of   its creation...........  Now,  so  far as I  can  judge  of  the Mahomedan  Law of pre-emption from the materials  within  my reach,  it appears to me to be perfectly clear that a  right of  pre-emption  is nothing more than a mere  right  of  re- purchase,  not from the vendor but from the vendee,  who  is treated,  for  all intents and purposes, as the  full  legal owner  of the property which is the subject-matter  of  that right." The minority judges consisting of Norman and Macpherson  JJ. took  a different view and held that the law of  pre-emption was to be treated as a real law, that is a law affecting and attaching  to  the property itself.  The  liability  to  the claim  of  pre-emption  is  a  quality  impressed  upon  and inherent  in  the property which is subjected to it;  or  in other words an incident of that property. 78 The identical point came up for consideration before a  Full Bench  of  the  Allahabad  High  Court(1),  where  also  the question  for decision was whether a  Muhammadan  pre-emptor could  enforce  his  right against a  Hindu  vendee  from  a Muhammadan vendor.  The learned Judges took a view  contrary to that taken by the majority of the Calcutta Full Bench and answered the question in the affirmative.  It was held  that the right of pre-emption was not one of re-purchase from the vendee.  It -was a right inherent in the property and  hence could  be followed in the hands of the purchaser whoever  he might be.  Mr. Justice Mahmood elaborately reviewed all  the original  authorities  of Muhammadan Law on  the  point  and expressed  the opinion that the right of  pre-emption  under Muhammadan  Law  partakes  strongly  of  the  nature  of  an easement  right, the dominant tenement " and  the  "servient tenement of the law of easement being analogous to what  the learned  Judge described respectively as the  "  pre-emptive tenement " and " preemptional tenement." in other words  the right  of pre-emption is a sort of legal  servitude  running with the land.  The right exists, as the learned Judge said, in the owner of the pre-emptive tenement for the time  being which  entitles  him to have an offer of sale made  to  him, whenever the owner of the pre-emptional property desires  to sell it.  But the right could not be a right of  re-purchase either  from  the  vendor  or the  vendee  involving  a  new contract  of sale.  " 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 has derived his  title. It is in effect, as if in a sale deed the vendee’s name  was rubbed out and the pre-emptor’s name was substituted in  its place.   The learned Judge pointed out that the decision  of the Calcutta Full Bench was based upon a mis-translation  of the  Arabic word " Tajibo " in Hamilton’s Hedaya.   Hamilton translated  the word as meaning "established" but it  really means " becomes obligatory, necessary or (1)  Vide Govinda Dayal v. Inayatulla, 7 All. 775. 79 enforceable."  The  right has not got to be  established  at all.   It  is attached and continues to be attached  to  the tenement  concerned and can under certain  circumstances  be enforced forthwith against the adjoining tenements sold. This  decision  was  followed by the  Patna  High  Court  in Achyutananda  v. Biki (1).  A Division Bench of  the  Bombay High  Court in a case decided in 1928 (2) accepted the  view taken  by  the majority of the Calcutta Full Bench  but  the



reasons given in that decision were held to be unsupportable by a later Fall Bench (3) of the same High Court which  held the  right of preemption to be an incident of  property  and agreed  substantially with the view taken by Mahmood  J.  in the Allahabad Full Bench. In  our  opinion 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.   We prefer to accept the meaning of the  word  " Tajibo  "  used  in the Hedaya in the  sense  in  which  Mr. Justice Mahmod construes it to mean and it was really a mis- translation  of  that word by Hamilton that accounted  to  a great extent for the view taken by the Calcutta High  Court. 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.  We agree with Mr. Justice  Mahmood that the sale is a condition precedent  not to the existence of the right but to its enforceability.  We do  not however desire to ex-press any opinion on  the  view taken  by  the learned Judge that the right  of  pre-emption partakes  strongly of the character of an easement  in  law. Analogies  are  not  always helpful and  even  if  there  is resemblance between the two rights, the differences  between them are no less material.  The correct legal position seems (1)  1 Pat. 578. (2)  Vide Hamed Miya v.  Benjamin, 53 BOm. 525. (3)  Vide Dasharathilal v. Bai Dhondu Bai, I.L.R. 1941  Bom. 460. 80 to  be that the law of pre-emption imposes a  limitation  or disability  upon the ownership of a property to  the  extent that  it restricts the owner’s unfettered right of sale  and compels  him  to  sell  the  property  to  his  cosharer  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.  It may be  stated here  that  if  the  right of preemption  had  been  only  a personal right enforceable against the vendee and there  was no infirmity in the title of the owner restricting his right of  sale in a certain manner, a bona fide purchaser  without notice  would  certainly  obtain an absolute  title  to  the property,  unhampered by any right of the pre-emptor and  in such  circumstances  there  could be  no  justification  for enforcing the right of pre-emption against the purchaser  on grounds  of  justice, equity and good  conscience  on  which grounds  alone  the right could be enforced at  the  present day.  In our opinion the law of pre-emption creates a  right which  attaches to the property and on that footing only  it can be enforced against the purchaser. The  question  now arises as to what is the  legal  position when  the right is claimed not under Muhammadan Law  but  on the  footing of a custom.  It cannot be and is not  disputed that  if the right of pre-emption is set, up by  non-Muslims on  the basis of a custom, the existence of the custom is  a matter  to  be established by proper evidence.  But  as  has



been  laid down by the Judicial Committee (1) following  the decision of the Calcutta High Court in Fakir Rawat v.  Emman (2),  that  when the existence of a custom under  which  the Hindus (1)  Vide Jadutal v. Janki Koer, 39.  I. A. 101, (2)  1863 B.L.R. Sup.  VOl. 35. 81 claim   to   have  the  same  rights   of   pre-emption   as Muhammadans,  in  any  district,  is  generally  known   and judicially  recognised, it is not necessary to prove  it  by further  evidence.   A long course of  decisions  has  esta- blished  the existence of such custom in Bihar,  Sylhet  and certain parts of Gujerat. So  far as the present case is concerned, a large number  of judgments  have  been put in evidence by  the  plaintiff  in proof  of  the existence of a custom of preemption  in  -the entire  city of Banaras.  There are at least three  reported cases (1) in which the High Court of Allahabad has  affirmed the existence of such rights in Banaras.  The defendants  in the present case do not dispute the existence of the  custom and  the  whole dispute is as regards the incidents  of  the same,  the  defendants’  case  being  that  the  custom   is available as between persons who are natives of or domiciled in  the  place and cannot be extended to  an  outsider  even though  he owns property in the city which is  the  subject- matter of the claim. The  Privy Council in Jadhulal v. Janki Koer expressly  laid down  that  when a custom of pre-emption is  established  by evidence  to  prevail amongst non-Muslims  in  a  particular locality  "it  must  be presumed to be founded  on  and  co- extensive with the Muhammadan Law on that subject unless the contrary is shown; that the Court may as between Hindus  ad- minister  a modification of the law as to the  circumstances under  which the right may be claimed when it is shown  that the  custom in that respect does not go to the whole  length of the Muhammadan Law of preemption, but that the  assertion of right by suit must always be preceded by an observance of the preliminary forms prescribed in the Muhammadan Law which forms  appear to have been invariably observed and  insisted on through the whole of the cases from the earliest times of which we have record." In the case before us no attempt was made by the  defendants to show that the custom of pre-emption set up (i)  Vide  Chakauri Devi v. Sundari DeVi, 28 All-  590;  Ram Chandra  v. Goswami Ram Puri, 45 All. 501 ; Gouri Sankar  v, Sitaram, 54 All. 76. (2)  39 I.A. 101. 11 82 and  proved  by the plaintiff was of a  character  different from that which is contemplated by Muhammadan Law.  The only difference that is noticed in one of the decided authorities (1) is that the custom of pre-emption prevalent in the  city of Banaras is confined to house properties only and does not extend  to  vacant  lands;  but this  view  again  has  been modified  in  a  subsequent  decision(2)  which  held   that building sites and small parcels of land even though  vacant are not excluded from the ambit of the custom.  The  various judgments which have been made exhibits in this case do  not give any indication whatsoever that under the custom, as  it prevails  in  the  city of  Banaras,  pre-emption  could  be claimed only against persons who are the inhabitants of  the place  or  are domiciled therein and that it  could  not  be enforced in respect of a property situated in the city,  the owner  of which is not a native of that place.  In  fact  no



such question was raised or discussed in any of these cases. The ambit or extent of a custom is a matter of proof and the defendants  were certainly competent to adduce  evidence  to show  that the custom of pre-emption prevailing in the  city of  Banaras was available not against all persons  who  held lands  within  it, but only against a  particular  class  of persons.   But this they did not attempt to do at any  stage of  the  litigation.   Their  contention,  which  has   been accepted  by both the Courts below is, that, as a matter  of law,  a local custom of pre-emption does not affect or  bind persons  who  are not the natives of or  domiciled  in  that area.  In support of this proposition the Courts below  have relied  primarily upon the statement of law made  by  Roland Wilson  and other text book writers on Muhammadan Law  which purport to be based upon certain decided authorities. At  page 391 of his book on Anglo-Mahammadan  Law(3)  Roland Wilson states the law in the following manner: "Where  the  custom  is judicially  noticed  as  prevailing, amongst non-Muhammadans in a certain local area, (1)  Vide Ram Chandra v. Goswami, 45 All. 501. (2)  Vide Goari Sankar v. Sitallam, 54 All. 76. (3)  Vide 6th edition, paragraph 352. 83 it does not govern non-Muhammadans who, though holding  land therein  for  the time being, are neither  natives  of,  nor domiciled in, the district." Two  cases  have  been  referred  to  in  support  of   this proposition,  one  of which is Byjnath Pershad  v.  Kapilmon Singh(1)  and the other Parsashth Nath Tewari v.  Dhanai(2). Mulla  repeats  the  law almost, in the same  terms  in  his Muhammadan Law.  In Tyabji the rule is thus laid down(3): "The law of pre-emption is personal.  It is not territorial, nor  an incident of property.  A person who is not a  native of  or  domiciled  within a locality  where  pre-emption  is enforced by law or custom but who owns lands within the same locality will not necessarily be subject to the law of  pre- emption." This statement clearly indicates the foundation of the whole doctrine.   The law of pre-emption is stated to be a  purely personal  law  even  when  it rests on  custom.   It  is  no incident  of  property  and the right which  it  creates  is enforceable only against persons who belong to a  particular religious  community  or  fulfil the  description  of  being natives  of a particular district.  In the case  of  Byjnath Pershad  v. Kapilmon Singh(1), which can be said to  be  the leading pronouncement on the subject, the vendor of a  house situated in the town of Arah, in the province of Bihar,  was one  Rajani Kanta Banerjee who was a native of lower  Bengal but resided at Arah where he carried on the profession of  a lawyer.   Rajani Kanta sold the property to  the  defendant, and the plaintiff brought a suit claiming pre-emption on the ground of vicinage.  It was admitted that the custom of pre- emption did prevail amongst non-Muslims in Bihar, but  still the  suit was dismissed on the ground that the  vendor,  who was not a native of the district, was not bound by it.   The right of pre-emption, it was held, arises from a rule of law by  which  the owner of the land is bound and it  no  longer exists if he ceases to be an owner, who is bound by the  law either as a Muhammadan or by custom. (1)  2 4 W. R., 95. (2)  32 Cal. 988 (3)  Tyabji’s Muhammadan Law, page 670, paragraph 523(e). 84 In   our  opinion  the  decision  proceeds  upon   a   wrong assumption.   The right of pre-emption, as we  have  already



stated, is an incident of property and attaches to the  land itself.  As between Muhammadans the right undoubtedly arises out  of their personal law; but that is because the  law  of pre-emption  is  no  part  of  the  general  law  in  India. Muhammadans  live scattered all over our country and  unless the  right  of  pre-emption is regarded  as  part  of  their personal  law they would lose the benefit of it  altogether. Hence  if a Muhammadan owns land in any local area  and  has co-sharers   or  neighbouring  proprietors  who   are   also Muhammadans,  a  right of pre-emption would  accrue  to  the latter  under the personal law of the Muhammadans, which  is enforced  in this country since the British days on  grounds of equity, justice and good conscience.  But though  arising out  of  personal  law the right of  pre-emption  is  not  a personal  right;  it is a real right attaching to  the  land itself.   When the right is created by custom it would,  be, as the Privy Council, has said, co-extensive with the  right under  Muhammadan Law unless the contrary is  proved.   This means  that  the nature and incidents of the right  are  the same  in  both  cases.  In both it creates a  right  in  the property and not a mere personal claim against the vendor or the vendee and the essential pre-requisites to the  exercise of  the right and the terms of enforcement are identical  in both But this does not mean that the customary right must be personal  to the inhabitants of a particular  locality.   It may  be so, if that is the incident of the custom itself  as established   by   evidence,  but  not   otherwise.    Under Muhammadan  Law  the  right  is confined  to  persons  of  a particular religious persuasion because it has its origin in the  Muhammadan  Law which is no longer a law of  the  land. But  when  it  is the creature of  a  custom  the  religious persuasion  of the parties or the community’ to  which  they belong are. altogether immaterial.  All that is necessary to prove  in  such cases is that the right  of  pre-emption  is recognised  in  a  particular  locality  and  once  this  is established,  the  land  belonging to every  person  in  the locality would be subject to the custom, irrespective of his being a member of a particular 85 community  or  group.   The whole  doctrine,  as  enunciated above,  is  based upon the fallacious  assumption  that  the right  of  pre-emption is a personal right  arising  out  of certain  personal conditions of the parties  like  religion, nationality or domicile and this fallacy crept into our  law simply   because  the  right  of  pre-emption   as   between Muhammadans is administered as a part of their personal  law in our country. The correct legal position must be that when a right of pre- emption rests upon custom it becomes the lex loci or the law of  the place and affects all lands situated in  that  place irrespective  of the religion or nationality or domicile  of the  owners  of the lands except where  such  incidents  are proved to be a part of the custom itself. it appears that the decision in Byjnath.  Kapilmon(1), which was quite in accordance with the view then taken by the High Court  of  Calcutta about the nature of the  right  of  pre- emption,  was the basis of the statement of law in the  form set out above in an earlier edition of Roland Wilson’s book. The  decision in Parslashth Nath v. Dhanai(2), which is  the other  authority  referred to, is based  entirely  upon  the statement of law in that earlier edition, and does not carry the  matter  any further.  In our  opinion  these  decisions cannot  be  held  to be correct and the  contention  of  the learned counsel for the appellant should be given effect to. We accordingly hold that a local custom of preemption exists



in  the city of Banaras and the right attaches at  least  to all  house properties situated within it and no incident  of such  custom is proved which would make the right  available only  between persons who are either natives of  Banaras  or -are  domiciled therein.  The result is that the  appeal  is allowed  and the judgments of both the Courts below are  set aside.   The  case  shall  go back to  the  High  Court  for consideration  of  the two questions left undecided  by  it, namely,  whether the plaintiff has made the demands  in  due compliance  with the forms prescribed by the Muhammadan  Law and secondly whether the plaintiff, being a landlord, (1)  24 W.R. 95. (2)  32 Cal 988. 86 could eject his own tenants in exercise of the right of pre- emption.   The appellant will have the costs of this  appeal from respondent No. 1. Further costs will abide the result.                                  Appeal allowed.