SAIDUDDIN Vs. MOHIUDDIN

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for a house situated within a notified area to which the Act does not apply, the second was zamindari property, and the third was another immovable property. It is admitted that the plaintiff had no right to pre-empt the third property. He had no doubt a right under the Act to pre-empt the zamindari property and he claimed to have the right to pre-empt the house under the Mahomedan law. If his claim for the house failed the whole suit must fail because of partial pre-emption. The learned District Judge has held that he performed the second demand under the Mahomedan law validly but that he failed to perform the first demand as required by the Mahomedan law. He has accordingly dismissed the whole suit. The plaintiff stated that when he heard of the sale he immediately said I am pre-emptor, I possess the right of pre-emption and shall pre-empt.

(2.) Thereafter he went to the house and took money from his box and went to the vendee and made the second demand on the same day in the afternoon. The learned Judge seems to think that there was some interval of time between the first and the second demand and therefore the fact of the second demand having been made cannot cure any defect in the making of the first demand.

(3.) We, however, think that the first demand was perfectly valid. There is no prescribed formula for making the first demand but the words used must be such as to indicate his clear intention to pre-empt. Mr Amir Ali in his book (Muhammadan Law Vol. 1 24 Edn.) has quoted the text of the Hidaya in the following words: Thus if a person ware to say I have claimed my shufa, or I shall claim my shufa, or I do claim my shufa all these are good, for it is the meaning and not the style or mode of expression which is here considered. But if he were to say to the purchaser. "I am the shaft or pre-emptor" it would be void.