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Mohammad Raza Ali Khan Vs. Mohammud Israr Hasan Khan - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1929All459; 121Ind.Cas.218
AppellantMohammad Raza Ali Khan
RespondentMohammud Israr Hasan Khan
Cases ReferredJadu Lal Sahu v. Janki Koer
Excerpt:
- - during the interval of six months, which intervened between the sale deed and the second demand, the vendee might very well have spent money on the improvement of the property......why the second demand was not made soon after the first. no doubt the plaintiff was at the time at bhopal but his son also happened to be there, and yet no prompt steps were taken to send him back to shahjahanpur. nor did the son act promptly in going to the vendee to make the demand after he had arrived at shahajahanpur. during the interval of six months, which intervened between the sale deed and the second demand, the vendee might very well have spent money on the improvement of the property. the second demand is to be treated as a public affirmation of the making of the first demand and an intimation to the vendee that the property would be pre-empted. a delay of this kind may prejudice the vendee and it may induce him to act on the supposition that the right of pre-emption.....
Judgment:

Sulaiman, J.

1. This is a defendant's appeal arising out of a suit for preemption under the Mahomedan law. The sale took place on 13th November 1923, at Shahjahanpur. The plaintiff who owns the adjoining land was at that time employed in the Bhopal State. His son was living at Shahjahanpur and apparently did not convey any information to his father till March following when he went to Bhopal personally. The plaintiff made the first demand at Bhopal as soon as he received the information from his son. He also deputed his son to go to Shahjahanpur to make the second demand. The second demand was made by the son at Shahjahanpur later. The defendant contested the claim on the ground that no demand had in fact or in law been made as were required by the Mahomedan law. The Courts below have decreed the suit holding that the demands were duly made.

2. So far as the finding of the lower appellate Court is a finding of fact it must be accepted. We must therefore assume that the plaintiff when he heard of the sale from his son at Bhopal some time in March 1924 stated that his land adjoined the land sold and the vendee Raza Ali Khan had no right to purchase it and that the plaintiff's son should 'purchase' it on behalf of the plaintiff. After that he instructed his son to go to Shahjahanpur and state that the first demand had been made at Bhopal and that he should personally make the second demand from the vendee. Although the word used by the pre-emptor was 'purchase' I think that there is no hard and fast formula which has to be adhered to in performing the first demand. It is the intention which must be gathered from the words used and the surrounding circumstances. On the facts stated there can be no doubt that the plaintiff intended to make the first demand and did make it and authorized his son to go to Shahjahanpur and make the second demand.

3. The findings that the second demand was duly made by the son at Shahjahanpur in the presence of witnesses at which there was a reference to the first demand and the witnesses were invoked are findings of fact and must also be accepted. There is no suggestion that there was any delay in making the first demand. But the learned advocate for the appellant has contended before us that there was unreasonable delay which has not been explained away in the making of the second demand. We must for the purposes of considering this point accept in toto the oral evidence produced by the plaintiff which has been accepted by the lower appellate Court. When the plaintiff was questioned he was unable to state the date on which he made the first demand. His son also has not given the exact date but has stated that he went to Bhopal in March and it was on the first day of his arrival that he mentioned the matter to his father. We may therefore take it that sometime in March the exact date not being known, the first demand was made. The son has further stated that he came to Shahjahanpur and after two or three days of his arrival he went to the house of the vendee to make the second demand and that this demand was made after 10th April. He is not in a position to give the exact date on which he made the second demand. Thus, even accepting the evidence of the plaintiff and his son there is a possibility of an interval of nearly two months between the first and the second demand and there was at least an interval of ten days between them. No explanation was attempted to be offered for this delay. Nor is it clear why the son after having arrived at Shahjahanpur took two or three days to walk over to the house of the vendee in order to make the second demand.

4. The question that arises before us is whether in the circumstances of the present case it can be said that the delay was reasonable. This would have been substantially a question of fact if the learned District Judge has applied his mind to this matter. He has, however, not considered the point at all, and we have therefore to decide for ourselves whether there was a delay which would invalidate the right of pre-emption.

5. That the second demand should also be made as soon as practicable is quite clear from the authorities which have been cited before us. Indeed, a passage in Baillie's Digest of the Mahomedan law Chap. 3, p. 488 suggests that the demand should ordinarily be made within 24 hours. It has, however, been held by the Courts that the rule of making the demand within one day is not any hard and fast rule and the interval of time which might be allowed to elapse depends on the special circumstances of each case. I may mention here the case of Mahomed Waris v. Hazee Emamoodeen 6 W.R. 173. But there has never been any doubt that even a second demand should be made without any unreasonable delay and as soon as practicable. In this connexion I may refer to the case of Golakram Deb v. Brindaban Deb 14 W.R. 265 and Nuruddin Mahomed v. Asgar Ali 12 C.L.R. 312, as also the Full Bench case of Mt. Jumeelun v. Luteef Hossein 16 W.B. 13. Their Lordships of the Privy Council in affirming the judgment of the Calcutta High Court in Jadu Lal Sahu v. Janaki Koer [1912] 39 Cal. 915, (at p. 923) remarked:

the second formality consists in the repetition of the demand with as little delay as possible under the circumstances, in the presence of witnesses either before the vendor or the vendee or on the premises.

6. All the leading commentators including Messrs. Amir Ali, Wilson and Tyabji lay down the rule that the second demand should be made as soon as possible or as soon as practicable. This being the accepted view of the law it seems to me that it was incumbent on the plaintiff to account for the delay which took place between the performances of the two demands. It is not sufficient for the plaintiff merely to state that he performed the demands without explaining why the second demand was not made soon after the first. No doubt the plaintiff was at the time at Bhopal but his son also happened to be there, and yet no prompt steps were taken to send him back to Shahjahanpur. Nor did the son act promptly in going to the vendee to make the demand after he had arrived at Shahajahanpur. During the interval of six months, which intervened between the sale deed and the second demand, the vendee might very well have spent money on the improvement of the property. The second demand is to be treated as a public affirmation of the making of the first demand and an intimation to the vendee that the property would be pre-empted. A delay of this kind may prejudice the vendee and it may induce him to act on the supposition that the right of pre-emption was waived. I would therefore allow the appeal and setting aside the decrees of the Courts below dismiss the plaintiff's suit with costs in all Courts.

Sen, J.

7. This is a defendant vendee's appeal arising out of a suit for pre-emption under the Mahomedan law founded upon vicinage. Mt. Sadran and Mt. Qamran sold a piece of land to Mohammad Raza Ali Khan, the appellant, on 13th November 1923 for Rs. 500. The land is situate in Shahjahanpur. The plaintiff, who owns property adjoining this land was at the time when the sale took place employed in the Bhopal State.

8. Evidence was led to prove that the preliminary formalities of 'talab-i-mawasibat' and 'talab-i-ishtishhad'' had been duly complied with. It has been found by the Courts below that the plaintiff received news of the sale for the first time at Bhopal through his son Khadim Husain, who went to see his father. The plaintiff immediately on receiving this news performed an immediate demand in these words:

yih arazi hamare arazi se mili hui hai Munshi Mohammad Raza Ali Khan ko koi haq kharidari karne ka nahin tum is arazi ko hamare liye kharid lo.

9. The plaintiff charged his son with performing the second demand at Shahjahanpur, and it is alleged that the second demand was duly performed at Shahjahanpur by Khadim Husain in the presence of witnesses. The Courts below have accepted the evidence produced by the plaintiff in proof of the two demands and have given the plaintiff a decree.

10. It is contended that the 'talab-i-mawasibat' was not performed in accordance with the prescriptions of the Mahomedan law. Under the Mahomedan law no set of formula is necessary for the performance of the immediate demand. The words, employed by the plaintiff, amount to an expression of his intention to pre-empt and must be taken to have been in substantial compliance with requisitions of the Mahomedan law.

11. The exact date when the first demand was performed, cannot be known from the record; only this much is known that the news of the sale was brought to the pre-emptor by his son some time in the month of March 1924. The plaintiff appointed his son as agent with a view to perform the second demand at Shahjahanpur. This demand could be made either in the presence of the vendor or the vendee or on the premises sought to be pre-empted. It was necessary therefore for Khadim Husain to undertake a journey from Bhopal to Shahjahanpur in order to be able to perform the second demand on behalf of his father. The evidence discloses that Khadim Husain did not leave Bhopal within a reasonable time of the first demand having been made. Indeed, he admits that the second demand was not performed till sometime after 10th April 1924, and that he did not perform the second demand till after two or three days of his arrival in Shahjahanpur.

12. It is argued that there was an unreasonable delay in the performance of the second demand and that this is a circumstance which is fatal to the plaintiff's suit. The legal aspect of the case presents no difficulty. The second demand had to be performed according to the canons of Mahomedan law within a reasonable time of the first demand and without any unreasonable delay. The final word on that subject has been said by the Privy Council in re Jadu Lal Sahu v. Janki Koer [1912] 39 Cal. 915:

The second formality consists in the repetition of the 'demand' with as little delay as possible under the circumstances, in the presence of the witnesses either before the vendor or the vendee or on the premises.

13. There can be no doubt that the second demand was not made without unreasonable delay and the delay has not been explained or accounted for by the plaintiff. Under these circumstances. I must in agreement with my learned colleague, hold that the second demand was not performed in due compliance with the requisition of the law. The result is that the appeal ought to succeed and the plaintiff's suit be dismissed.

14. The appeal is allowed, the decrees of the Courts below are set aside and the plaintiff's suit dismiss ed with costs in all Courts including in this Court fees on the higher scale.


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