CHANDER SEKHAR TIWARI Vs. RAM PRASAD DUBEY

JUDGEMENT

(1.) This is an appeal by defendants first party from the decision of a single Judge of this Court in a suit in which the plaintiffs-respondent claimed a right to pre-empt land which the defendants-second party sold to the appellants, the plaintiffs being co-sharers in that land with the vendors, the defendants-second party. The facts are that the plaintiffs performed the first ceremony necessary to enable them to exercise the right of pre-emption, namely, the talab-i-mawasibat, as soon as they heard of the sale to the appellants, in the presence of Bhagwat Lal, whom they examined as witness no. 2, and another man, whom they examined as witness No. 3. Then, in the company of these two witnesses, the plaintiffs went to the land which was the subject matter of the sale, and it is claimed that they also performed the second ceremony necessary for exercising the right of pre-emption, namely, talab-i-ishad. Thereafter, they offered the appellants the amount for which the land had been sold to them, but the appellants did not accept it. The first Court decreed the suit. The appellate Court, however, held that there was a defect in the performance of the talab-i-ishad inasmuch as no reference was made during the performance of that ceremony to the performance of the first ceremony, namely, talab-i-mawasibat. The appellate Court, therefore, reversed the decision of the Munsif and dismissed the suit. In second appeal to this Court the decision of the Munsif has been restored.

(2.) The question that falls for determination is whether it is necessary to refer, during the ceremony of talab-i-ishad, to the performance of the ceremony of talab-i-mawasibat, when the witnesses who were present during the performance of the second ceremony were also witnesses to the performance of the first ceremony. There are cases directly on the point which is in issue between the parties before us, in which it has been held that a strict compliance with the requirements of the Muhammadan law is necessary in order to enable the plaintiff successfully to claim the right of pre-emption, and one of those requirements is that during the performance of the second ceremony reference must be made, in the presence of witnesses, to the performance of the first ceremony. The reason for this has been succinctly stated by Jackson J. in Hosseinee Khanum v. Mt. Lallun, (1864) W. R. (Gap. No.) 117 at p. 118 :

(3.) I agree. The Muhammedan law of pre-emption is a law of technicality, and the existence of the right depends upon the full and complete observance of the formalities. It is a ritual. If the ritual be defective, the Djinn will not emerge from his bottle : Unless the words are "open sesame" the door will not open. If the ceremonies are in any way incomplete or erroneous, the right of shaffa does not take form, but remains unsubstantial. It is right that it should be so, because the doctrine involves an interference with one of the fundamental human rights, the right of freedom of contract. The Hedaya says: