Skip to content


Abdul Majid and ors. Vs. QamaruddIn and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1945All375
AppellantAbdul Majid and ors.
RespondentQamaruddIn and anr.
Excerpt:
- - 294. it appears to me, therefore, that there is good authority for the view taken by the court below that there was in the present case a legal and valid demand......the appellants has taken me through various cases of this court. it was held by a bench in ahmad hakimullah v mohammad hik-mat ullah : air1927all289 ahmad hakimullah v mohammad hik-mat ullah : air1927all289 that when a pre-emptor while making the second demand does not call the attention of the witnesses to the fact that he had already made the first demand, the second demand is invalid under the mahomedan law, even though the witnesses to both the demands are the same. that gives what may be called the general law on the subject. another case cited was that in ahmad hakimullah v mohammad hikmat ullah : air1927all289 . it was said in that case that where a pre-emptor actually makes the first demand in the presence of the witnesses and asks them to accompany him to the vendees in order.....
Judgment:

Bennett, J.

1. The only question for consideration in this second appeal is whether the plaintiff in a pre-emption suit made the demands required by Mahomedan law. It appears that the two demands required, namely the talab-i-mowasibat and the talab-i-ishtishhad were both made in the presence of the vendor and the vendees and also in the presence of the same witnesses. But at the talab-i-ishtishhad there was an omission to refer expressly to the fact that the talab-i-mowasibat had already been made. The trial Court took a strict view of the requirements of the Mahomedan law and held that it was essential that at the time of making the talab-i-ishtishhad reference should be made to the fact that the talab-i-mowasibat had already been made.

2. In first appeal the Civil Judge took a different view and after considering a number of authorities came to the conclusion that as both the vendor and the vendees and the witnesses had all been present when the two demands were made and there was no delay in giving information to the vendor and vendees, and further when at the time of both demands the witnesses were specifically invoked to bear testimony to the fact that the demands had been made, it was unnecessary to refer at the second demand expressly to the talab-i-mowasibat. Counsel for the appellants has taken me through various cases of this Court. It was held by a Bench in Ahmad Hakimullah v Mohammad Hik-mat Ullah : AIR1927All289 Ahmad Hakimullah v Mohammad Hik-mat Ullah : AIR1927All289 that when a pre-emptor while making the second demand does not call the attention of the witnesses to the fact that he had already made the first demand, the second demand is invalid under the Mahomedan law, even though the witnesses to both the demands are the same. That gives what may be called the general law on the subject. Another case cited was that in Ahmad Hakimullah v Mohammad Hikmat Ullah : AIR1927All289 . It was said in that case that where a pre-emptor actually makes the first demand in the presence of the witnesses and asks them to accompany him to the vendees in order that a second demand might be made in their presence and they both state that they heard the second demand being made and their attention was attracted to it, the mere omission to ask them in express terms to bear testimony would not be fatal to the preemptor's right. Further it was held that at the time of making the second demand a mention of the first demand is necessary in order to inform the vendee that it was promptly made as required by law. In neither of these cases nor in certain other cases which have been cited were the vendor and the vendees present when the first demand was mad6. The only case which I have been able to find which indicates the legal position when both the vendor and the vendees and the witnesses are present when the first demand is made is Mt. Nathu v. Shadi ('15) 2 A.I.R. 1915 All. 294 Reference was made to this case in Ahmad Hakimullah v Mohammad Hikmat Ullah : AIR1927All289 but the ruling in it was incorrectly attributed to Barumal v. Tansukh Rai ('15) 2 A.I.R. 1915 All. 239 which deals with quite a different point. The ruling in 37 ALL. 5223 is to the effect that if at the time of talab-i-mowasibat the pre-emptor has an opportunity of invoking witnesses, in the presence of the seller or the purchaser or on the premises, to attest the immediate demand, it would suffice for both the demands and there would be no necessity for the second demand. Learned Counsel for the appellants has endeavoured to convince me that this ruling would not apply in a case where the second demand was actually made, but it seems to me that it would be applicable. The reason is that it shows that all that was necessary was done at the time of the first demand and that nothing further was required. If, as occurred in the case under consideration, there is a second demand, that is supererogatory. There is no necessity for it; the fact that there was a second demand could not have the effect of invalidating the first demand which was sufficient.

3. It was observed in Ahmad Hakimullah v Mohammad Hikmat Ullah : AIR1927All289 that the second demand is necessary in order to inform the vendee that it was promptly made as required by law. Where the vendee himself was present when the first demand was made there is no occasion to inform him again because he is already acquainted with the facts. Ahmad Hakimullah v Mohammad Hikmat Ullah : AIR1927All289 therefore, goes indirectly to support the ruling in Mt. Nathu v. Shadi ('15) 2 A.I.R. 1915 All. 294. It appears to me, therefore, that there is good authority for the view taken by the Court below that there was in the present case a legal and valid demand. I accordingly dismiss the appeal with costs. Leave to appeal under the Letters Patent is refused.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //