JUDGMENT Kanhaiya Lal, J.
1. The plaintiff-respondent sued for pre-emption under the Muhammadan Law in respect of a house situated in Sabaranpur city which was sold by lit. Habib-un-nissa to Husain Bakhsh on the 9th January, 1920, the house of the plaintiff stands to the North of the house in dispute. The allegation of the plaintiff was that two parnalas of his house discharged water into the inner court-yard of the house sold; that there was a joint wall between the two houses, and that there was also a plot of land lying in front of the doors of the two houses, which was used as a common pathway, closed on one side, and belonging to the persona whose houses opened towards that lane the vendor and the vendees are Shias. They denied that the plaintiff was a co-sharer in the property sold or in any pathway appertaining to it or that the plaintiff had any right to claim pre-emption. The Court of first instance found that the plaintiff was not entitled to pre-emption as he had no joint interest in any portion of the property sold and there wag no joint wall standing between the two houses nor any joint pathway belonging only to these two tenements. The lower Appellate Court, however, held that although there was no joint wall or other joint interest held by the parties in the house in question, there was a blind passage in front of the doors of the houses of the parties, which was common to all the houses existing there, and inasmuch as that passage was sold along with the house in question, the plaintiff as a sharer in the passage was entitled to claim pre-emption in respect of both.
2. The defendant vendee appeals and his contention is that the plaintiff is not entitled to pre-emption, firstly, because there was no joint passage belonging to the houses of the parties, and, secondly, because no right of preemption could be enforced as the property was not divided property and the common passage was owned by more than two parsons having houses opening towards it.
3. The right of pre-emption under the Shia Law is of a much more restricted character than that allowed under the Hanafi law. According to the Shia law shufa is the legal title of one partner (sharik) in the joint property to the share of another partner (sharik) therein in the event of its transfer by sale, and as stated by Baillie, a right of pre-emption can only be claimed under that law by a person who is a partner of a share in the joint and undivided property (Baillie's Muhammadan Law, p. 179).
4. According to the Sharaya-ul-Islam, quoted by Shyama Charan Sarkar, the right of pre-emption does not belong to a neighbour nor does it attach to the property that has been divided, unless a road or rivulet of water (if any running through it) be still in joint tenancy. It is a necessary condition that the parson claiming a right of pre-emption should at that time be (actually) a co-sharer of the seller). Tagore Law Lectures, 1874, p. 447.
5. Again:
When there is more than one claimant by right of pre-emption, opinions are divided as to the establishment of the right. According to one of these it is established absolutely whatever be the number (of the claimants); according to another it is established with a plurality of partners when the claim is for land, but not when it is for more than a single slave; and according to the third it is not established with respect to anything when there is more than one (co-sharer), and this last opinion is the moat prevalent.
6. Similarly says Baillie:
It is otherwise in the case of lands which have been divided off, where the roads or rivulets passing through them continue to be held in joint property and one of the partners in the latter sells his share together with his portion of the divided land, for there the other partner's right of pre-emption attaches not only to the share in the road or rivulet which was held in joint property but also to the portion of the land divided off as being'connected in sale with the other. If however, the land should be sold separately, there could be no ground for a claim for pre-emption in respect of it; and even with respect to the road or rivulet which continued in joint property, it is only when it is sufficiently wide to admit of a division that the right can attach to either of them (Baillie's Imamia Law, p. 177).
7. Thus there can be no right of pre-emption except in relation to property which is held jointly or which was at one time held jointly and has been divided off, while the roads and rivulets passing through them continue to be held in joint proprietary right.
8. Where the properties are, or were, not held jointly at any time, as in the present instance, there can be no right of pre-emption, because there never was any original partnership in respect of the said properties to permit of the right of way being treated as a residuum of that joint right. If any right of way is enjoyed jointly by the owners of the properties, it is only a subsidiary or beneficial right appertaining to each property but not a right flowing out of the joint nature of the properties held by each. This will be further clear from another passage of the Sharaya-ul-Islam, translated by Baillie:
There is no privilege of pre-emption to a neighbour, nor in property that has been divided, unless the road or rivulet of water, running through it, is still held in partnership. The privilege is established by general assent when there are only two partners; when there is more than one claimant, opinions are divided. According to one of these, it is established absolutely, whatever be the number. By another it is established with a plurality of partners in the case of lands but not of a slave. By the third it is not established in respect of anything when there is more than one partner. And this last opinion is the most prevalent and best supported by traditional authority (Baillie's Muhummadan Law, p. 179).
9. The Court below refers to a passage from the Sharaya-ul-Islam which states:
The right of pre-emption is established in land where there is a partnership in the pathway or in the drinking water, if sold along with the land.
10. But this passage refers to a case where the property was originally joint and has been divided off, leaving the pathway or the drinking water or rivulet joint. It also refers to a passage in Jawahir-ul-Kalam, a commentary on the Sharya-ul-Islam, where it is laid down:
There is another precept which has been held to be correct by more than one. There is a house belonging to a tribe of people who partitioned it and each of them took a piece separately and built on it and left between them an open space in the house in which they have their passage. A man came and purchased the shares of some of them. Can he do so (without the risk of being pre-empted)? The reply, was he can do so; but he should close the door and open it on another pathway.
11. The extract only goes to confirm what we have said above, namely that the right of pre-emption can only be exercised where the property is or was held jointly at one time or another and has been divided off, leaving a residue of the proprietary rights in the way or water undivided, if the latter is included in the sale. An extract from the Riyayat-ul-misil was cited before the Court below on behalf of the defendant-appellant which goes to show that no right of preemption can be exercised unless there is jointness in the substance of the rights.
12. The Court of first instance observed that the passage lying in front of the doors of the houses of the parties was used by the parties and the owners of two or three other houses and that it belonged to the owners of all these houses jointly. But the finding of the lower Appellate Court on that point is not very specific or clear. All that it says is that the passage was common to all the houses and a right to that passage was sold along with the house in question. Assuming, however, for the sake of argument that that passage was the joint property of the owners of the houses, which have doors opening towards it, including the present plaintiff and the defendant-vendor, a joint proprietary right to that passage would not give the plaintiff a right of pre-emption, because the houses to which that passage appertains, were never at any time joint property. They are separate houses, having a distinct and separate title. The passage in question does not appertain to any joint property, which had been divided or partitioned or to a house divided between the co-sharers thereof and in respect of which a right of pre-emption could be claimed.
13. In Abbas Ali v. Maya Ram (1898) 12 All. 229 and Sayid Muhammad Razi-ud-din v. Raghubir Prasad (1918) 16 A.L.J. 507, it was held that upon a sale of property by a Shia Muhammadan no right of pre-emption arises, where there are more than two co-sharers in such property. Here the property was not held by the plaintiff and the defendant-vendor jointly at all. The houses owned by them were never joint. The passage in question may be either a public way or a private pathway belonging to more than two persons. In either case, the plaintiff is not entitled to claim pre-emption. This appeal is, therefore, allowed and the claim of the plaintiff dismissed with costs here and hitherto.