MUHAMMAD YUNIS KHAN Vs. MUHAMMAD SALEH KHAN

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for pre-emption under the Mahomedan law. On 25 October 1922 the plaintiff's sister Mt. Rabia Begam executed a dead of exchange in favour of the defendant Haji Mohammad Saleh Khan in which shares in 12 villages were transferred to him in return for a bigger share in another village transferred by him to her. There was another deed of exchange dated 5 December 1922 between Haji Saleh Khan and Haji Yusuf Khan. Two suits for pre-emption were instituted by the plaintiff in respect of these two transactions. In these deeds of exchange there was a condition for the annulment of the transaction at the option of either party. The plaintiff alleged that he had made demands as required by the Mahomedan law, and that he was entitled to pre-empt half of these properties because he was a cosharer on the same footing as the transferees. He also alleged that the real consideration was Rs. 12,000 and not Rs. 20,000. The claims were resisted by the defendants on the ground that the deeds of exchange on account of the reservation clause were not pre-emptible under the Mahomedan law, it was further pleaded that the demands required by the Mahomedan law had not been performed under that law, and lastly it was alleged that the consideration entered in the deeds was genuine.

(2.) The learned Subordinate Judge has dismissed the claim holding that the conditional transfer was not pre-emptible, and has also held that the demands were not proved to have been duly performed.

(3.) With regard to the question of the performance of the demands, there is one point in favour of the plaintiff and that is that before even the deed of exchange was executed when he heard of the intention to exchange he had sent notice by means of a registered post-card, dated 6 September 1922 to his sister warning her not to transfer her share and informing her that in case it was transferred he would pre-empt the transfer. The plaintiff however did not go into the witness box, and relied on the evidence of his general attorney and two witnesses. The defendant went into the witness box and denied the performance of the second demand made to him. The plaintiff had attempted to show two second demands one made to the transferee and the other at the property. As we are convinced that the suit must fail on the question of law, it is unnecessary to consider the oral evidence at length.