MST. MOHMUDI Vs. MUSTAQUE ALI AND OTHERS

JUDGEMENT

(1.) This is a second appeal by the Plaintiffs arising out of a suit for pre -emption under the Mohamedan law. Connected with this second appeal is a civil revision by Mushtaq Ali Defendant No. 1, the vendee, who had put in an application u/O. 21, R. 97 of the Code of Civil Procedure and which was dismissed by the learned Munsif on 12 -12 -1950.

(2.) The facts are not disputed. The Plaintiffs and the Defendants Nos. 2, 3 and 4 belonged to one family. Defendant No. 2 Smt. Bashiran is the wife of one Nabi Bux. Nabi Bux and Smt. Bashiran have a daughter Mahmodi Begum, who is Plaintiff No. 1, and three sons Mohammad Nabi, Aley Nabi and Haidar Bux. Smt. Aisha Begum Defendant No. 3 is the wife of Mohammad Nabi. Smt. Sarwari Begum Defendant No. 4 is the wife of Aley Nabi. Smt. Sultani Plaintiff No. 2 is the daughter of Haidar Bux. On 24 8 -1945, Defendants Nos. 2, 3 and 4 executed a sale -deed in favour of Defendant No. 1 with respect to two houses in the city of Moradabad for a consideration of Rs. 2,000. One of the houses belonged in its entirety to Defendants Nos. 2, 3 and 4. In regard to the other house it was asserted on behalf of the Plaintiffs that 5/6th of it belonged to them in their own right and the remaining 1 /6th of it belonged to the vendors. The Plaintiffs came to court upon the allegation that the sale of 5/6th of the house which belonged to them in their own right was void and inoprative and they claimed a declaration to that effect. With regard to the remaining l/6th share in that house and also with regard to the whole of the other house, the Plaintiffs contended that they as shafi -i -jar and shafi -i -khalit were entitled to pre -empt upon payment of the proportionate price. They further contended that the necessary talabs had been made. The suit was resisted by Defendant No. 1 on the ground that the Plaintiffs were not the owners of 5/6th share in one of these houses; that the suit was bad for partial pre -emption and that the necessary talabs had not been made. The trial court held that the Plaintiffs were owners of 5/6 share in one of these houses in their own right and they were entitled to the declaration asked for by them; that the suit was bad for partial pre -emption and that since the necessary talabs had not been made, the Plaintiffs were not entitled to a decree for pre -emption. In that court the counsel for the parties gave an agreed statement to the effect that house No. 1 was valued at Rs. 1,300 and house No. 2 was valued at Rs. 700. An appeal and a cross -objection were taken before the lower appellate court. The lower appellate court affirmed the finding of the trial court to the effect that the Plaintiffs had 5/6th share in one of the houses and the sale -deed was void to that extent. The lower appellate court further held that the necessary demand had been made; that the suit was not bad for partial pre -emption and that the Plaintiffs were entitled to a decree for pre -emption of l/6th share in one of the houses and of the whole of the other house on payment of a sum of Rs. 2,000. From the decision of the lower appellate court an appeal has been brought to this Court by the Plaintiffs, and a cross objection by Defendant No. 1. The two came up for hearing before a learned single Judge of this Court. The learned single Judge has referred it to a Bench as in his opinion the matter involved certain important questions of law.

(3.) Three points have been stressed before us by Learned Counsel for the parties, namely,