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Habib-un-nissa and anr. Vs. Barkat Ali and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1886)ILR8All275
AppellantHabib-un-nissa and anr.
RespondentBarkat Ali and anr.
Excerpt:
muhammadan law - pre-emption--acquiescence in sale--relinquishment of right. - - 'the right of pre-emption is rendered void by implication, when anything is found on the part of the pre-emptor that indicates acquiescence in the sale, as, for instance, when knowing the purchase, he has omitted, without a sufficient excuse, to claim his right (either by failing to demand it on the instant, or by rising from the meeting, or taking to some other occupation, without doing so, according to the different reports of what is necessary on the occasion); or, in like manner, when he has made an offer for the house to the purchaser;.....by one barkat ali, the other defendant-respondent. the pre-emptors are two ladies, who claim pre-emption under the muhammadan law. the questions of law to be considered are two, namely--(i) whether the 'talab-i-mawasabat,' or immediate demand, had been properly made as required by the muhammadan law; (ii) if it was, have the plaintiff's relinquished their right by entering into the agreement, dated the 27th october 1883, with abdul rahim3. this agreement was made on the same date as the sale, and thereby the purchasers agreed to sell the property to the plaintiffs pre-emptors any time within a year, and if the utter paid the price and purchased it for themselves. now, according to the muhammadan law, if the pre-emptor enters into a compromise with the vendee, or allows.....
Judgment:

Mahmood, J.

1. Having heard the learned pleader for the appellants, I am of opinion Chat the appeal should be dismissed with costs.

2. The suit was one for pre-emption, arising out of a sale made on the 27th October 1883, in favour of Abdul Rahim, defendant-respondent, by one Barkat Ali, the other defendant-respondent. The pre-emptors are two ladies, who claim pre-emption under the Muhammadan law. The questions of law to be considered are two, namely--(i) whether the 'talab-i-mawasabat,' or immediate demand, had been properly made as required by the Muhammadan law; (ii) if it was, have the plaintiff's relinquished their right by entering into the agreement, dated the 27th October 1883, with Abdul Rahim

3. This agreement was made on the same date as the sale, and thereby the purchasers agreed to sell the property to the plaintiffs pre-emptors any time within a year, and if the Utter paid the price and purchased it for themselves. Now, according to the Muhammadan law, if the pre-emptor enters into a compromise with the vendee, or allows himself to take any benefit from him in respect of the property which is the subject of pre-emption, he by so doing is taken to have acquiesced in the sale, and to have relinquished his pre-emptive right. Mr. Baillie, in his celebrated Digest of Muhammadan Law, at page 499, which reproduces a passage of the Fatawa Alamgiri, states the law as follows: 'The right of pre-emption is rendered void by implication, when anything is found on the part of the pre-emptor that indicates acquiescence in the sale, as, for instance, when knowing the purchase, he has omitted, without a sufficient excuse, to claim his right (either by failing to demand it on the instant, or by rising from the meeting, or taking to some other occupation, without doing so, according to the different reports of what is necessary on the occasion); or, in like manner, when he has made an offer for the house to the purchaser; or has asked him if he will give it up to him; or has taken it from him on lease, or in moozaraut--all this with knowledge of the purchase.'

3. This passage is conclusive, and leaves no doubt that by the very fact of their taking the agreement referred to above, the plaintiffs have relinquished their right of pre-emption and are precluded from enforcing it.

4. In this view of the question it is unnecessary to consider the first question. I would dismiss the appeal with costs.

Tyrell, J.

5. I am quite of the same opinion.


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