BUDHAI SARDAR Vs. SONAULLAH MRIDHA

JUDGEMENT

(1.) This second appeal has been preferred against an appellate decree declaring a right of pre-emption under the Mahomedan Law of Shafa. The facts found may, for present purposes, be thus succinctly stated.

(2.) The right is claimed by one Sonaullah in respect of the share of a jote which his co-sharer, Ansaruddi, has sold to an outsider, Budhai. Sometime previously Ansaruddi had offered to sell the share to Sonaullah and Sonaullah had refused to buy. But when, precisely, this offer was made, and what were its terms, do not appear. After Sonaullah s refusal Ansaruddi, on the 14th December, 1907, executed a kobala conveying the share to Budhai for Rs. 300; but no consideration passed then, and there was no delivery of possession. Having become aware of the execution of Budhai s kobala, Sonaullah approached Ansaruddi on the 23rd December and obtained another kobala purporting to transfer the share to him for Rs. 400. The latter transaction fell through owing to Sonaullah s failure to produce the purchase-money at the time of registration; but the transfer to Budhai was completed by the payment of the consideration by Budhai and the registration of his kobala on the 3rd of the following January. Of this completion Sonaullah heard on the 6th January, and he thereupon duly performed the ceremonies prescribed by Mahomedan law, and eventually brought the present suit to enforce his right.

(3.) The Court of first instance held that Sonaulla had forfeited the right, first, by his initial refusal to purchase the share, and, secondly, by his failure to pay the purchase money stipulated for in the kobala executed in his favour on the 23rd December. The lower Appellate Court has reversed this decision and decreed the suit, holding that Sonaullah s right of pre- emption did not accrue until the transfer to Budhai had been completed by the registration of Budhai s kobala on the 3rd January, and that, therefore, Sonaullah could not have lost it by anything done, or omitted, by him prior to that date.