SHIVSHANKAR CHHAGANLAL SHUKLA Vs. LAXMAN CHIMANLAL SONI

JUDGEMENT

(1.) THIS is an appeal by the plaintiff in a suit for a declaration that he has, as the owner of the house adjoining the suit house, a better right to buy it than the defendant who purchased it from its owner for Rs. 13,101. The plaintiff's house is situated to the south of the suit house while the defendant's house is to its north. Originally the plaintiff's house as well as the suit house belonged to one Ambalal Shivlal. The latter sold both the houses to Devshankar at different dates. Thereafter Devshankar's grandson Hariprasad Somnath sold the suit house to the original defendant, who is now dead, in 1935. The defendant had purchased his own house to the north of the suit house in 1919 from a stranger. The sale-deed of the suit house in the defendant's favour was passed on May 23, 1935, and the plaintiff's case in substance was that on that date he was at a place called Ghodasar at some distance from Ahmedabad where the suit house is situated. He was the karbhari of the Thakor Saheb of Ghodasar. He had occasion to come to Ahmedabad on May 26, which was a Sunday, for bringing some money of the Thakor Saheb to Ahmedabad where he had to make payments to certain persons. On arrival there at about twelve o'clock he went to the house of a friend in the neighbourhood named Hariprasad Vaidya and there he learnt from one Jamnadas, a common acquaintance of his and Hariprasad, that the suit house was sold by its owner Hariprasad Somnath to the defendant. The plaintiff says that immediately on coming to know of it he there and then expressed his desire to purchase the suit house in the presence of several persons who were present in Hariprasad Vaidya's house, and on returning to his home, which is situated almost opposite to Hariprasad Vaidya's house, he called two pleaders and the witness Laxman Dudhia, and in their company went to the suit house and made the demand for purchasing it. The purchaser, however, was not in that house and he was in his shop nearby, whereupon they all went to the shop and the plaintiff informed him in the company of the witnesses that he had come to know of the sale of the suit house, and as soon as he came to know he expressed his desire to purchase it and he was prepared to pay him the price which he had paid to the owner as he wished to exercise his right of pre-emption for the house.

(2.) UNDER the Mahomedan law of pre-emption, which admittedly governs the parties in this case and which applies to the Hindus in the city of Ahmedabad, it is necessary that a pre-emptor should make demands known as talabs. The first talab is called talab-i-mowashibat, and the second, talab-i-ishad. For performing the first talab it is necessary that the shaft or pre-emptor must declare his intention to assert his right as pre-emptor immediately on receiving information of the sale. It is not necessary that he must do so in the presence of any witnesses, nor is it necessary that he must make any offer or tender the price at that stage. Wherever he is, as soon as he comes to know of the sale either by oral intimation or by a letter, he must express his desire to claim his right of pre-emption even though nobody may be present at that time. For the talab-i-ishad, it is necessary that, with the least practicable delay after the first talab is made, the pre-emptor should make the second talab in which he must expressly refer to the fact that the first talab had been made and he must make a formal demand either in the presence of the buyer or the seller or on the premises and in the presence of at least two witnesses.

(3.) UPON these pleadings the material issues contested between the parties were as to whether the plaintiff proved that he was entitled to pre-empt and that he had a preferential right to pre-emption, and, secondly, if the plaintiff was entitled to pre-empt, did he prove that he performed the requisite formalities in time ? The learned Judge found on those two issues that the plaintiff was entitled to pre-empt but that it was not necessary to decide whether he had a preferential right to pre-emption because of his finding on. the other issue, namely, that the plaintiff had not performed the requisite formalities in time. The requisite formalities consisted in the making of the first and the second talabs. But with regard to the second talab the learned Judge observes that it was not seriously disputed by the defendants that the plaintiff had performed the second talab, and he also held that the plaintiff did perform it. The dispute, according to the learned Judge, centred round the first talab.