MUHAMMAD AHMAD SAID KHAN Vs. MADHO PRASAD

JUDGEMENT

(1.) This appeal arises out of a suit for preemption. The property is situate in the town of Koil. The property, which was sold, consisted of a portion of a muafi plot. The plaintiff based his title, first, on an alleged custom, and, secondly, on the Muhammadan Law. The ancient history of Koil is not in evidence and the only document which relates thereto is the wajib-ul-arz of 1872. This document in Chapter I states that the kasha is a perfect pattidari tenure comprising an area of 3,256 bighas. The area of each of the pattia is then given. It would seem that there was only one patti which was zamindari in the ordinary sense. The other pattia consisted of muafi pattis, resumed muafi and buildings. Chapter II is headed the rights of "co-sharers," but if the different paragraphs are read it would seem to refer to the zamindari patti. For example, paragraph 6 states that "the Government was the zamindar of this kasba and before the Mutiny it was settled with farmers. After the Mutiny it was granted to my husband Gobind Singh for his services and loyalty during the Mutiny, and for the same reason he was appointed the lambardar. Now I have been in possession and the lambardar since the date of his death." The whole of this chapter seems, when carefully considered, to relate to the zamindari. Paragraph 18 relates to pre-emption and is as follows: "Every co-sharer has every kind of power to transfer his right and share at first to co- sharers descended from the same ancestor, and, if they do not take, to other co- sharers in the patti, and if these also refuse to take, then to any person he likes." Chapter III relates to the rights of shikmi co-sharers. It says that there are 2,280 bighas and 3 biswas of muafi land, and that there are 2,840 bighas of resumed muafi. There is no cross-reference to show that the provisions of Chapter II apply to the muafidars. No doubt there may have been groups of persons interested in the muafi and resumed muafi plots, otherwise there seems to have been no community of interest between the muafidars and the proprietors of the zamindari, nor does there even seem to be any community of interest between the different sets of muafidars. The proprietor of each muafi plot was entitled to the entire profits of the muafi plot and was not liable to account for these profits to the other muafidars unless by chance they happened to be joint owners with him of a particular plot. Both the courts below have held that the custom of pre-emption does not exist. So far as this is a finding of fact it is binding on this Court in second appeal. It has been held between these very parties, though possibly under circumstances that would not amount to res judicata, that the custom does not exist. The plaintiff gave in evidence, besides the extract from the wajib ul-arz to which we have referred, some cases in which pre-emption had been claimed. A number of these were cases which arose after the wajib-ularz of 1872 had been signed by the muafidara as well as the zamindar, and whilst the settlement was still in force, It was held that the wajibul-arz bound every one. Cases which arose during the currency of that settlement and decided upon these grounds can have little or no weight. Cases which wore based upon Muhammadan Law also can have no weight. One must also bear in mind that the first entry as to the right of pre- emption is in the year 1872, a comparatively speaking recent date. Bearing in mind the importance of persons being co-sharers one with the other and thus having community of interest on the question of the probability or improbability of the custom having grown up, we think the courts below were justified in holding that no custom existed which gave a right to ones muafidar against another muafidar. It is said in the present case that the plaintiff pre-emptor is actually a co-sharer in the plot which is sold. Assuming this to be so, we do not think that even this custom has been proved and that we ought to accept the finding of the court below. The next question is as to whether the plaintiff ought to succeed on the ground of Muhammadan Law. An attempt was made to prove that the preliminaries required by Muhammadan Law were duly performed. The first court held on the evidence, that no demand was made, The lower appellate court held on the evidence that the first demand was made but that the second demand was not made. We must accept this finding. It is contended, however, that under the Muhammadan Law a second demand is not absolutely necessary. It has always been accepted in this Court as settled law that a second demand is necessary. I think that we are bound to follow this established practice. Rafiq, J.

(2.) I am also of opinion that this appeal must fail and agree in the reasons given by the learned Chief Justice for its dismissal. I wish, however, to say a few words as to whether the talab-i-ishtishhad is an indispensable formality or not. The learned Counsel for the appellant contends that under the Muhammadan Law all that is necessary for the success of a pre-emptor is that he should have made the talal-i-ishtishhad. The talab-i-ishtishhad is not absolutely necessary, and as long as the talab-i-ishtishhad is made and is found to have been made the claim of the pre-emptor must prevail. It is conceded by the learned Counsel that the English books on Muhammadan Law (such as those of Ameer Ali, Baillie, Hamilton and Wilson) are against his contention and lay down that the talab-i-ishtishhad is one of the indispensable formalities to be observed by the pre-emptor; but he says that the learned authors have misunderstood the original text?.. In support of his contention he relies on certain passages of Fatawa-i-Alamgiri, Fatawa-i-Kazi Khan and Radd-ul-Mukhtar. The said passages with their translations in Urdu and in English have been printed and produced before us. The English translation, which I accept for the purpose of this case as accurate, is as follows: Fatawa-i-Alamgiri: Talah-i-ishtishhad means invocation (by pre-emptor) of persons to bear witness to (his making) immediate claim in order to give strength to the fact that he has immediately claimed (preemption). The calling of persons to witness is not necessary for the validity of a claim (for pre- emption), it is on the other hand (intended) to strengthen the right of pre-emption when the vendee denies (the pre-emptor s) having laid claim to pre-emption and says to him you did not claim pre-emption when you got knowledge; rather you desisted from making the claim and went away from the meeting and (the pre-emptor) says (No.) I did make the claim, in which case the words of the vendee are to be believed. Hence, the calling of persons to witness at the time of claiming pre-emption is necessary in order to make the claim firm. And the talab- i-ishtishhad is correct when it is made either in the presence of the vendee or the vendor or on the premises. So, (the pre-emptor) should say in the presence of either of them that such a man has purchased this house, or such a house, and give the boundaries thereof and (add) I have a right of pre-emption, to which I have laid claim and which I still claim. Bear witness, thereof, to the fact. Radd-ul-Mukhtar: And for it (talab-i-ishtishhad) the calling of persons to witness is not necessary. This is the view adopted in Hidaya and other books; because immediate claim is (intended) not to prove the right but to give out that he (the pre-emptor) has relinquished (his right of) pre-emption. "Nihaya and Miraj." It (the calling of witnesses) is, on the other hand, done through fear of denial, that is to say, the denial by the vendee of the (preemptor s) making the claim as they (the jurists) have said in the case when a father makes a gift in favour of his son and calls persons to bear witness to the fact, and they have mentioned the calling of persons to witness not because it is necessary for the validity of a gift but because it is necessary to prove the gift when denied by the father. Miraj.

(3.) Now on a careful examination of these passages it is quite obvious that the learned writers do not mean to lay down that the talab-i-ishtishhad is unnecessary, but they explain the reasons why the law requires talab-i-ishtishhad. To explain the reasons of a provision of law is one thing and to say that it is not mandatory is another.