BHAJU SING Vs. KAIFNATH TEWARI AND ANOTHER

JUDGEMENT

(1.) This is a suit for pre-emption. The first Court found that certain preliminaries required by Mohammedan law had not been proved. The lower appellate Court, on appeal, tried the case in a manner which we did not consider satisfactory. The only question of fact tried by the Judge was, whether the ceremony, which is called talubimohasibat, was duly performed. This is the declaration by the party claiming pre-emption of his intention of becoming the purchaser, and is a declaration which he must make immediately on hearing of the sale. The Judge does not consider at all whether the talubi ishteshahad, or affirmation by witnesses, of such intention on his part in the presence of the seller and witness, was really made.

(2.) We were of opinion that the appeal has not been properly tried by the Judge. In order to determine whether or not the first Court had come to a right conclusion, it was his duty to have looked into the whole of the evidence, and not to have fixed his attention on one single isolated and comparatively unimportant issue.

(3.) Because it appeared to him that there were some discrepancies in the evidence of witnesses who spoke as to the circumstances under which the declaration of the intention to purchase was made, the Judge was not justified in disbelieving the whole of the plaintiff's case. We are of opinion that there were no such discrepancies in the evidence as the Judge supposed. If certain persons present at a particular conversation give different accounts of the exact words used, it does not follow that the Judge is justified in assuming that no such conversation took place at all. Different men have different power of observation; the powers of memory differ widely in different persons and no two men repeating a conversation which took place some time previously (unless before coming into Court they have concerted together) are likely to repeat the conversation in the same words. The substance of what was said is all that is necessary; that the plaintiff on hearing of the sale declared his intention to purchase; and this right to purchase is clear on the evidence of the witnesses. But the Judge says, because the first witness was not present when the money was fetched, therefore there is some discrepancy between his testimony and that of the other witnesses. But the explanation of this first witness in not staying until the money was brought out does not seem difficult. He was a neighbor who had gone and told the plaintiff Bhaju Sing of the sale, and it is quite probable that after telling him of the sale, he having no further business with him, may have gone away before the money was brought out, especially as it would necessarily take some considerable time to count a large sum like rupees 2,500 and bring it out from the interior of the house.