ALIMAN BEGAM Vs. ALI HUSAIN

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff appellant, on the ground of pre-emption under the Muhammadan law. The claim was decreed by the court of first instance. The appellate court, however, took a different view, and dismissed the claim. The ground upon which the appellate court dismissed the claim was that the second demand, known under the Muhammadan law as talab-i- ishtishhad, was not carried out by the plaintiff appellant as required by the Muhammadan law. It appears that the vendees were husband and wife. The pre- emptor went to the house of vendees and sent for the husband, who came out. In the presence of the witnesses the pre-empt or made a second demand, and the husband listened to it. The wife was admittedly not present at the time when the second demand was made. The Muhammadan law requires that the second demand should be made either in the presence of the vendor or the vendee or on the property that is the subject of pre-emption. The singular words, vendor and vendee, include the plural also. According to the interpretation of the Muhammadan lawyers, if the demand is made neither in the presence of the vendor nor on the property sought to be pre-empted, but in the presence of the vendee, then in case there are more than one vendee, the demand should be made m the presence of all.

(2.) The view taken by the learned Judge of the lower appellate court, that the second demand made by the pre-emptor was defective, is quite correct.

(3.) The appeal fails and is dismissed under Order X LI, Rule 11, of the Code of Civil Procedure.