JADU SINGH Vs. BUTAN SINGH

JUDGEMENT

(1.) This appeal arises out of a suit for pre-emption. The plaintiffs apparently performed the talab-i-mowasibat in the presence of witnesses. They took these witnesses to the vendor and there performed the taldb-i-istishad. The Munsif gave them a partial decree, but on appeal the Subordinate Judge of Muzafferpore held that the performance of the talab-i-istiatiad was not in accordance with the strict provisions of the Muhammadan Law and accordingly decreed the appeal and dismissed the suit. The defect which the learned Subordinate Judge found in the performance of the talab-i-istishad he thus describes : "While performing the talab-i-istishad the plaintiff was bound to declare that he had observed the talab-i-mowitsibat and then invoke the witnesses. But he did not say that he had made this declaration that he had observed the talab-t-mowasibat." The Subordinate Judge following the case of Rujub Ali Chopedar V/s. Chundi Churn Bhadra 17 C. 513 (F.B.) hold that the omission of any mention of the performance of the talab-i-mowasibat at the time of the performance of the talab-i-istishad was fatal.

(2.) The plaintiffs appeal to this Court and it is argued on their behalf that this case is distinguishable from the case cited, because it does not appear that in that case there was any invocation of witnesses, while in this case witnesses were invoked. It is also argued that the words of the plaintiffs which have been put before us contained an implicit statement that he had performed the talab-i-mowasibat.

(3.) We think, however, that both these grounds must fail. The Full Bench decision quoted is authority for holding not only that witnesses must be invoked, but also that the performance of the talab-i-mowasibat must be asserted. And the words of the plaintiff which have been read to us did not in our opinion contain such a clear reference to the performance of the talab-i-mowasibat as would take the case outside the scope of the ruling which we have quoted.