1. This appeal arises out of a suit for pre-emption brought under the Muhammadan Law. The first Court held that the plaintiff had duly performed the requirements of Muhammadan Law and granted the plaintiff a decree, The lower Appellate Court agreed with the finding of the first Court that the formalities of Muhammadan Law had been complied with, but dismissed the plaintiff's suit upon a finding that the plaintiff had ceased to be a co-sharer at the time of the institution of the suit. The plaintiff comes here in second appeal. The finding of both the Courts below that the plaintiff performed the formalities of Muhammadan Law is binding upon us in second appeal. It is said, however, that because the plaintiff made the second demand some days after making the first demand and it appearing that the vendor being a near relation of his, he could probably have made the second demand earlier by making it in her presence instead of in the presence of the vendee, and that, therefore, the plaintiff has not complied with Muhammadan Law. The second demand pan be made in the presence of the vendee, in the presence of the vendor, or on the land. It seems to as that the person most concerned with the making of the second demand is the vendee, and that accordingly the plaintiff was entitled to delay for any reasonable time that might be necessary to enable him to make the demand in the presence of the vendee. We, therefore, think that there is no force in this contention. There were other reasons also which might have explained why the second demand was not made earlier. Another point was lightly touched on, namely, that the Muhammadan Law of pre-emption does not apply to Zemindari property but is restricted to houses, gardens and small plots of lands. It may well be doubted whether the Muhammadan Law ever did extend to estates, but it would seem that the law rightly or wrongly has been extended. The matter was mooted in the case of Munna Lal v. Hajira Jan 7 Ind. Cas. 404 : 33 A. 33 A. 23 : 7 A.L.J. 879. A Bench of this Court held that the Muhammadan Law did apply to Zemindari property.
2. We now come to the main issue in the case, namely, whether or not the plaintiff lost his right to pre-empt by reason of the fact that he had ceased to be a co-sharer at the date of the institution of the suit. It appears that about four days after the institution of the suit and a considerable time after the sale of the property which it is sought to pre-empt, the plaintiff made what is in form at least a usufructuary mortgage of his share in the village to a third party. The amount secured by the mortgage was Rs. 12,000 and the mortgage was, as we have said, usufructuary in form, the period being six years. It was alleged by the defendant vendee that this was in reality a sale. The Court of first instance dealing with this matter says: On the 21st of February 1917 this plaintiff has admittedly executed a usufructuary mortgage of his share in this village for Rs. 12,000. But it is not denied that the plaintiff is still a recorded co-sharer and has apparently the right to redeem. He should still be regarded a co-sharer. No either direct evidence has been given under this issue save the production of a copy of the mortgage-deed which has been admitted. Two arguments are, however, advanced. First, that this claim is really for the benefit of the mortgagee, that the plaintiff means to make a profit out of the suit and in case of success, to sell this share also to the same mortgagee. No pleadings or evidence support this plea--rather if the dates are looked to these will negative any such plea.'
3. The learned Subordinate Judge goes on to say: The only other circumstance which may possibly throw some suspicion is plaintiff's admission that the Rs. 12,000 is very nearly the full value of the property mortgaged.' The Subordinate Judge then finds the issue in favour of the plaintiff and against the vendee. The learned District Judge, after finding in favour of the plaintiff on the issue of the performance of the formalities of Muhammadan Law, says: 'On the remaining point, however, I think the appellant must succeed. The plaintiff, after making his first demand on the 11th of September and his second on the 15th of September, did not file his suit till the 17th of February and afterwards he executed a mortgage for Rs. 12,000.'
4. He goes on to say: 'The presumption, I think, must be, in the absence of any explanation, that this so-called mortgage was really a sale and the plaintiff was really trading away not only his Zemindari share in the village in suit but also his right to pre-emption.'
5. A perusal of the judgment of the learned District Judge shows clearly that he throws the onus on to the plaintiff of showing that what on the face of it was a mortgage transaction was what it purported to be. It seems to us quite clear that the onus of showing that the transaction was an out-and-out sale, lay on the defendant and not on the plaintiff. Even on the assumption that the money secured by the mortgage was equivalent to the value of the property, the plaintiff might still have wished to retain his right to redeem, if he thought fit, after the expiration of six years. The plaintiff remained the recorded proprietor of the share sold, and there was in short no evidence to support the finding that the transaction was a sale. To draw the inference that it was a sale and not a mortgage, from the one fact that the consideration was equivalent or almost equivalent to the value of the property, was an inference which could not legitimately be drawn from that circumstance. We must allow the appeal, set aside the decree of the lower Appellate Court and restore the decree of the Court of first instance, with this modification that the consideration money must be paid within two months from this date. If the consideration is paid within the time aforesaid, the plaintiff's suit will be decreed with costs in all Courts. If it is not paid within the time allowed, the suit will stand dismissed with costs in all Courts. Costs in this Court will include fees on the higher scale.