SHAMSUDDIN Vs. ALLAUDDIN

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for pre-emption under the Mahomedan law. The suit was brought by three persons. It was alleged that the demands were made oh behalf of plaintiff 2 Wahabuddin by his brother. The defendants pleaded that the demands were not in accordance with the Mahomedan law and further alleged that they could not be dispossessed as they were in possession under a usufructuary mortgage deed. The Court of first instance decreed the claim holding that the demands had been made by the manager and a member of a joint family."

(2.) As the plaintiffs were Mahomedans the finding is not intelligible. The appellate Court seems to have acquiesced in this finding and treated the demand made on behalf of Wahabuddin as a good demand without any suggestion or finding that he had previously authorized his brother to make the demand. As even the first demand was made by the other brother and the father only it is most unlikely that he had been previously authorized by Wahabuddin to make the demands on behalf of him in case any sale deed was executed.

(3.) In our opinion the view taken by the Courts below as regards the right of Wahabuddin to sue is quite wrong.