HAMITULLA Vs. KARIM BUX

JUDGEMENT

(1.) This appeal has arisen out of a suit to enforce the right of preemption. Defendant 1 who is the brother of the plaintiff was the vendor and the other defendants, namely, defendants 2 to 5 the vendees. The Courts below have dismissed the suit on the ground that the second demand, namely, the Talabi-i-ishhad has not been satisfactorily proved. So far as this finding is concerned it is a finding of fact. But then it has been argued on behalf of the plaintiff- appellant that inasmuch as the Talab-i-mowasibat was duly proved and it was accompanied by the requisite formalities and was made in the presence of witnesses, the necessity for a second demand of Talabi-i-ishhad has been dispensed with. Now the precise question as to the circumstances under which the first demand would be sufficient has been considered in a very recent case of this Court namely to which decision one of us was a party and which is about to be reported. It has been held in that case on a consideration of the authorities that in order to dispense with the necessity of Talabi-i-ishhad the Talab-i-mowasibat must be accompanied by the formality that is prescribed under the Mahomedan law as to the invoking of witnesses. It has been held in that case that if this invocation of witnesses has been done in the first demand no second demand would be necessary. It has thus been said in that case: The right is strict issimi juris and failure to perform the demands in accordance with the requirements of the Mahomedan law would defeat the plaintiff's claim.

(2.) The invoking of witnesses, as far as may be gathered from the authorities, is no mere matter of form; it imparts to the demand a solemnity clothed in which the demand becomes not a casual one but on the other hand assumes the nature of a serious transaction. No particular form of words is necessary for the invocation of witnesses, but the claimant in the presence of witnesses must say to the following effect: Such a parson bought such a property (sufficiently indicating the same) of which I am the Shan ; I have already claimed my right of Shaffa and now again claim it, be therefore witness thereof." (Ameer Ali on Mahomedan Law, 4 Edition, Vol. II, p. 72.) 3.

(3.) The last word or words to that effect must be said even where the two demands are combined into one. The importance of this invocation as an essential part of the ceremony has been impliedly recognized in several eases amongst which reference may be made to Jadu Singh V/s. Raj Kumar [1871] 4 B.L.R.A.C. 171; Bamdular Misser V/s. Jhumack Lal [1872] 8 B.L.R. 455.