ABDUL RAHMAN Vs. MUSAMMAT RIFAQTULNISSA

JUDGEMENT

(1.) THE parties to this appeal are related to each other. THE plaintiff-appellant, Abdul Rahman, is the uncle of Abdul Hai, defendant respondent No. 2. Musammat Rifaqtulnissa, respondent No. 1. is the wife of Abdul Hai. It appears that before the ceremony of marriage took place between the defendants-respondents, one of the conditions of the marriage was that Abdul Hai should transfer a portion of his property of the value of Rs. 15,000 to his fiance. Accordingly, on the 5 of January 1918, Abdul Hai executed a sale deed in favour of Musammat Rifaqtulnissa in respect of property the value of which was mentioned in the deed to be Rs. 15,000. THE deed was registered on the 8 of January 1918. On the same day Abdul Hai was married to Rifaqtulnissa. On the 7 of January 1919 Abdul Rahman, the plaintiff, brought the suit out of which this appeal has arisen for possession of the property conveyed by the deed of the 5 of January 1918 on the ground of pre-emption. He stated in his plaint that be was unaware of the transfer by Abdul Hai to defendant-respondent No. 1 until three or four mouths prior to his giving evidence in the Court below. As soon as he heard of the sale he made the first demand at his own house where the news was received, and the second demand at a field called "Anrwala" which is part of the property sought to be pre-empted. He also went to Moradabad to the residence of the father of Musammat Rifaqtulnissa and made a demand as a pre-emptor at her father's home. Finding that his demands were not complied with he filed the present suit.

(2.) FOR the defence the claim was resisted on various grounds. It was urged on behalf of the respondents that the demands were not made by the plaintiff according to law and within time nor did they satisfy the formalities laid down by the Muhammadan Law. Moreover, the transfer in favour of Rifaqtulnissa was in lieu of her prompt dower and such a transfer was not under the Muhammadan Law, liable to pre-emption. Both parties gave evidence and the learned Subordinate Judge, after carefully considering the evidence in the case, found against the plaintiff and dismissed his claim. We have heard the learned Counsel in support of the appeal and we have examined the evidence on the record. We are of opinion that the appeal must fail. It is in evidence on behalf of the plaintiff that he knew of the transfer of the 5 of January 1918, three months at least prior to his having made his demand according to Muhammadan Law. One of his witnesses is Bunyad Beg, and the latter says that for two or three month's before the demands were made the plaintiff had an intention of bringing a suit for pre- emption in respect of the sale deed. He made up his mind to bring a suit when he claimed pre-emption. He said so also when he fulfilled the conditions of pre- emption. From the statement of Bunyad Beg it is obvious that the demands required by the Muhammadan Law were not made immediately after learning of the sale in question by the plaintiff. He, therefore, cannot Succeed in his present claim. It would serve no useful purpose to discuss and dispose of other points raised in the appeal. The appeal fails and is dismissed with costs including fees in this Court on the higher scale.