PACHUMUDDIN NAYEK Vs. ABDUL GAFFUR

JUDGEMENT

(1.) This is an appeal under Section 15 of the Letters Patent from a decision of Edgley, J. It arises out of a suit which was commenced by the plaintiff, who is the appellant before us, to enforce his right of preemption in respect of one-seventh share of a certain tank. In order to establish this right of preemption the Mahomedan law requires that the ceremonies connected with talab-i-mowasibat and talab-i-ishad must be performed. According to the finding of the lower appellate Court which has been accepted by Edgley, J., it appears that the talab-i- mowasibat ceremony was properly performed, but the lower appellate Court found that the talab-i-ishad ceremony was not properly performed on the ground that there was no proper invocation of witnesses by the plaintiff at the time of the said talab-i-ishad ceremony. The lower appellate Court accordingly dismissed the plaintiff's suit. The only question which arose for determination before Edgley, J. was, therefore, as to whether or not the witnesses were properly invoked at the time when the talab-i-ishad was performed at Tamluk on 7th September 1932 and whether under the Mahomedan law, such absence of proper invocation of witnesses was or was not fatal to the right of pre-emption which was claimed by the plaintiff. So far as this Court is concerned, the view which has been taken since the year 1864 has been against the contention of the appellant that the invocation of witnesses is not an essential part of the ceremony of talab-i-ishad. It is contended by Mr. Janah, who appears for the appellant, that there has been sufficient compliance with the formalities of the Mahomedan law seeing that the witnesses were called in for the express purpose of witnessing the reiteration of the demand which was made on the second occasion, namely on the occasion of the talab-i-ishad and he relies in support of his contention on a recent decision of the Allahabad High Court in the case in Imam-ud-din V/s. Muhammad Rais-ul-islam where Sulaiman, J., as he then was, and King, J. came to the conclusion that: In making the talab-i-istishad, or second demand it is not absolutely necessary for the pre-emptor to use words like Be ye witness to this , addressed to the witnesses, or otherwise to specifically invoke them to be witnesses.

(2.) This decision undoubtedly supports the contention of the appellant, but this decision is contrary to the view taken in the earlier Allahabad cases; and so far as this Court is concerned it is contrary to the view which has been unanimously adopted since the year 1864. The earliest case where this question arose directly for decision is to be found in Issure Chunder Shah V/s. Mirza Nisar Hossein (1864) WR F B 351. There Shumbhoonath Pundit, J., with whom Morgan, J. concurred, decided that the invocation of witnesses is an essential part of the ceremony. Pundit, J. said this: The first Court found that though the ceremony of tulabamoasi but was duly performed by the plaintiff he had not formally completed the ceremony of Isteshhad; that though he had expressed his desire to purchase and offered money in the presence of witnesses he had not, as required by the Mahomedan law, called upon these persons to be the witnesses of his acts. As the claim of preemption is a right not much favoured even by the Mahomedan lawyers and so it is not unjust to plead technical objection to it by way of defence, the lower Court dismissed the claim of the plaintiff. On the appeal of the plaintiff, the lower appellate Court held that what was proved to have been performed by the plaintiff with regard to this second ceremony was quite sufficient to meet the requirements of the Mahomedan law. Defendant has appealed against this decision in favour of the plaintiff. As the conclusion of the first Court was right and the plaintiff has not performed the second ceremony of affirmation by witnesses as strictly as is required by the Mahomedan law, we reverse the decision of the lower appellate Court and upholding the order of the first Court dismiss the claim of the plaintiff and decree this appeal with cost.

(3.) Morgan, J., who delivered a short judgment, said this: It is clear that the whole of the necessary ceremonies have not been performed (witnesses not having been duly invoked) and that there is, therefore, no right of pre-emption.