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Musammat Ilahi Jan Vs. Mohammad Ishaq Khan and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1919All255(2); 49Ind.Cas.976
AppellantMusammat Ilahi Jan
RespondentMohammad Ishaq Khan and ors.
Excerpt:
.....the plaintiff could not fall back upon muhammadan law of pre emption, because she bad alleged a right by custom and further once any right of pre-emption existed either by custom or by arrangement between the co sharers, there never could be any right under the muhammadan law, and on this ground dismissed the plaintiff's suit. it is contended on behalf of the respondents that there is no right under the muhammadan law to pre-empt property of the nature of zemindari property, and possibly in the absence of authority a good deal might be said for this contention. it has, however, been held by a bench of this court and in some other courts in india that the muhammadan law of pre-emption does extend to large estates, which, of course, includes zemindari property, and we think in a small..........the plaintiff could not fall back upon muhammadan law of pre emption, because she bad alleged a right by custom and further once any right of pre-emption existed either by custom or by arrangement between the co sharers, there never could be any right under the muhammadan law, and on this ground dismissed the plaintiff's suit. it did not consider whether or not the formalities required by the muhammadan law had been duly performed by the plaintiff. it held, however, that no custom was proved. the plaintiff comes here in second appeal contending that the court below ought not to have dismissed her claim on the ground that the plaintiff could not claim under muhammadan law. we think that there is considerable force in this contention. the plaintiff had put her rights under the.....
Judgment:

1. This appeal arises out of a suit for preemption. The first Court decreed the plaintiff's suit. The lower Appellate Court dismissed the suit. The plaintiff alleged in the plaint that she, being a co sharer in the same khewat and potti, fulfilled the necessary conditions of pre-emption and persistently asked the defendants to make the property over to her. This is evidently an allegation of a right of pre emption under the Muham-madan Law. Paragraph 5 goes on to allege that even apart from this there was a custom of pre-emption prevailing in the village and that under that custom she had a right. The vendees denied-the existence of a custom, denied that the plaintiff had any right of pre-emption and pleaded in a very specifics manner that before the sale the plaintiff was informed by means of a written notice of the intended sale, and that she refused to buy on account of her being destitute of means. The Court of first instance held that the custom had been proved and farther that the formalities of Muhammadan Law had been duly performed. The lower Appellate Court considered that the plaintiff could not fall back upon Muhammadan Law of pre emption, because she bad alleged a right by custom and further once any right of pre-emption existed either by custom or by arrangement between the co sharers, there never could be any right under the Muhammadan Law, and on this ground dismissed the plaintiff's suit. It did not consider whether or not the formalities required by the Muhammadan Law had been duly performed by the plaintiff. It held, however, that no custom was proved. The plaintiff comes here in second appeal contending that the Court below ought not to have dismissed her claim on the ground that the plaintiff could not claim under Muhammadan Law. We think that there is considerable force in this contention. The plaintiff had put her rights under the Muhammadan Law as her first claim to pre-emption. No doubt if there is a custom of pre-emption prevailing in a village it is not possible that there should be at the same time a right under the Muhammadan Law. On the other hand, if there is no custom of pre emption, and there merely was at one time an arrangement between the co sharers which has come to an end with the settlement, we see no reason why the co-sharers would not at the end of the settlement be entitled to re-assert their rights under the Muhammadan Law, provided that they had such right before the contract. It is contended on behalf of the respondents that there is no right under the Muhammadan Law to pre-empt property of the nature of Zemindari property, and possibly in the absence of authority a good deal might be said for this contention. It has, however, been held by a Bench of this Court and in some other Courts in India that the Muhammadan Law of pre-emption does extend to large estates, which, of course, includes Zemindari property, and we think in a small case like the present we should hesitate to fend the case to a larger Bench. We think, therefore, that assuming that the plaintiff duly performed the requirements of the Muham-madan Law, we should grant her a decree in the present suit.

2. We have already mentioned that, the lower -Appellate Court did not decide whether the formalities of the Muham madan Law had or had rot been complied with; but as all the materials are on the record and as we think it inadvisable that we should put the parties to further expense by referring an issue, we have determined to decide the issue ourselves, and for that purpose we have considered the evidence on the record. The plaintiff did not come into the witness-box to depose that she had performed the talabs, Evidence was given on her behalf to the effect that a man of the name of Daulat, (who was a tenant) was the first to inform her of the sale and that thereupon she at once claimed pre-emption. Daulat has not been called. According to the evidence given on behalf of the plaintiff her attorney made the second demand, she being a pardanashin lady. As against this evidence the vendees produced evidence to show that such demands were never made and that before the sale a written notice was sent by post addressed to the plaintiff, pointing out that as she was a co-sharer with the vendor, she was being given notice that the property was being sold and asking her whether she wished to buy. A certificate of the posting of the letter so addressed was filed and secondary evidence of the contents of the notice was admitted. The plaintiff never denied that she had received this notice, she gave no evidence at all and the Court of first instance seems not to have doubted that the notice was in fact cant and received. Evidence was further given that not having received any answer to the notice the purchaser of the property visited the lady's house. He could not, of course, enter the house because the lady was pardanoghin, but be deposes to a conversation with her from behind the parda and that she said that she was a widow and too poor to purchase. The Court of first instance does not in so many words say that it believes the witnesses on behalf of the plaintiff, although no doubt it ends the issue in favour of the plaintiff. We have to consider now which of these two stories is the most probable. The Court of first instance, as we have already said, does not seem to have doubted that the notice to which we have referred was in fact sent and received. It may be that the Court was quite right in holding that this notice was not sufficiently explicit about price, etc., to debar the plaintiff's right: but the receipt of this notice by the plaintiff, if in fact it was received, has a very strong bearing on the probability or improbability of her having made the demands required by Muhammadan Law. If the plaintiff received that notice and she was anxious to purchase the property, it is almost certain that she would have given some reply either orally or in writing. She did neither. If the plaintiff was really anxious to buy this property and able to pay for it when it was being sold, it would not be probable that she would have waited for 11 months before instituting the suit. Presumably people who are able to purchase a property, anxious to purchase it, and have a right to purchase it, take steps to assert their right at the earliest possible moment. It is said that by inserting an exorbitant price in the sale deed difficulties were placed in the plaintiff's way. No doubt if the plaintiff had to pay the exorbitant price this would be a difficulty. But there was nothing to prevent her instituting the suit, alleging and proving that the price was exorbitant if in fact it was. It thus appears that the story told by the defendants is corroborated by the Post' Office certificate of the posting of the notice and the secondary evidence of the contents of the notice. Their story is also corroborated by the surrounding circumstances, and in particular by the delay which has taken place in the institution of the suit. We do not believe the evidence of the plaintiff's witnesses that the demands were made. We do not believe that she was in a position to buy, or that she was anxious to buy the property at the time it was being sold. We, therefore, decide this issue against the plaintiff. It, was lastly contended on behalf of the respondents that a custom of pre-emption was proved. The entry in the wajib-ul-an on the face of it shows that it was not a record of a custom. It was the record of the wishes of the co-sharers. The lower Appellate Court has found that the custom does not exist and we think that it was quite justified in coming to this finding.

3. For the reasons we have stated we dismiss the appeal with costs, including fees on the higher scale.


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