FAZAL AHMAD Vs. TASADDUQ HUSAIN

JUDGEMENT

(1.) This appeal arises out of a suit for pre-emption brought under the Muhammadan law. The first court held that the plaintiff had duly performed the requirements of Muhammadan law, and granted the Plaintiff a decree. The lower appellate court agreed with the finding of the first court that the formalities of Muhammadan law had been complied with, but dismissed the plaintiffs suit upon a finding that the plaintiff had ceased to be a co-sharer at the time of the institution of the suit. The plaintiff comes here in second appeal. The finding of both the courts below that the plaintiff performed the formalities of Muhammadan law is binding upon us in second appeal. It is said, however, that because the plaintiff made the second demand some days after making the first demand and it appearing that the vendor being a near relation of his, he could probably have made the second demand earlier by making it in her presence instead of in the presence of the vendee, and that therefore the plaintiff has not complied with. Muhammadan law. The second demand can be made in the presence of the vendee, in the presence of the vendor, or on the land. It seems to us that the person most concerned with the making of the second demand is the vendee, and that accordingly the plaintiff was entitled to delay for any reasonable time that might be necessary to enable him to make the demand in the presence of the vendee. We, therefore, think that there is no force in this contention. There were other reasons also which might have explained why the second demand was not made earlier. Another point was lightly touched on, namely, that the Muhammadan law of preemption does not apply to zamindari property, but is restricted to houses, gardens and small plots of lands. It may well be doubted whether the Muhammadan law ever did extend to estates, but it would seem that the law, rightly or wrongly, has been extended. The matter was mooted in the case of Munna Lal v. Hajira Jan (1910) I.L.R., 33 All, 28. A Bench of this Court held that the Muhammadan law did apply to the zamindari property. We now come to the main issue in the case, namely, whether or not the plaintiff lost his right to pre-empt by reason of the fact that he had ceased to be a co-sharer at the date of the institution of the suit. It appears that about four days after the institution of the suit and a considerable time after the sale of the property which it is sought to pre-empt, the plaintiff made what is in form at least a usufructuary mortgage of his share in the village to a third party. The amount secured by the mortgage was Rs. 12,000 and the mortgage was, as we have said, usufructuary in form, the period being six years. It was alleged by the defendant vendee that this was in reality a sale. The court of first instance dealing with this matter says: On the 21st of February, 1917, the plaintiff has admittedly executed a usufructuary mortgage of his share in this village for Rs. 12,000. But it is not denied that the plaintiff is still a recorded co-sharer and has apparently the right to redeem. He should still be regarded a co-sharer. No other direct evidence has been given under this issue save the production of a copy of the mortgage-deed, which has been admitted. Two arguments are, however, advanced. First that this claim is really for the benefit of the mortgagee--that the plaintiff means to make a profit out of the suit--and in case of success, to sell this share also to the same mortgagee. No pleadings or evidence to support this plea--rather if the dates are looked to these will negative any such plea.

(2.) The learned Subordinate Judge goes on to say: The only other circumstance which may possibly throw some suspicion is plaintiff s admission that the Rs. 12,000 is very nearly the full value of the property mortgaged.

(3.) The Subordinate Judge then finds the issue in favour of the plaintiff and against the vendee. The learned District Judge after finding in favour of the plaintiff on the issue of the performance of the formalities of Muhammadan law says: On the remaining point, however, I think the appellant must succeed. The plaintiff after making his first demand on the 11th of September and his second on the 15th of September, did not file his suit till the 17th of February and afterwards he executed a mortgage for Rs. 12,000.