Sulaiman and Kanhaiya Lal, JJ.
1. This is a plaintiff's appeal arising out of a suit for pre-emption. On the 1st of June, 1918, Farzand Ali Khan sold some lands to Pir Khan. On the same date Pir Khan sold these lands to Abdul Aziz Khan. It was the plaintiff's case that within a few days of the sale, news of it was brought to him by his karinda, Maqbul Husain, and that there and then he made the first demand in the presence of three witnesses, Faiyaz Ali Khan, Maqbul Husain and Abdul Rahman. It was his case that he then took these three witnesses with him to the house of Abdul Aziz and made his second demand in the presence of Abdul Aziz and in the presence of the same three witnesses. Subsequent to these demands, the property, along with other properties, was sold by Abdul Aziz to Abdul Karim by a sale-dead dated the 3rd of May, 1919. The claim was based also on the alleged custom of pre-emption as recorded in the wajib-ul-arz of mauza Raipur. The defendant vendee took a large number of pleas and resisted the claim. No less than six issues were framed by the trial court. With the exception of the issue relating to the existence of the custom of pre-emption, all the other issues were decided in favour of the plaintiff and the claim was decreed.
2. The defendant vendee appealed to the lower appellate court which has reversed the decree of the first court and dismissed the claim. There are, however, only two points decided by the learned District Judge. The other points have been left altogether untouched.
3. The learned District Judge has come to the conclusion that Abdul Aziz wanted to defeat the plaintiff's right of preemption, and that in pursuance of that idea he transferred the property bond fide for valuable consideration to Abdul Karim. He, however, found that the transaction in favour of Abdul Karim was not fictitious but a real one, though he thought that it was a device adopted to defeat the right of pre-emption. The other finding was that even if the statement of the plaintiff be taken to be true, it fell short of establishing the performance of necessary demands.
4. Taking up the second point first, we are of opinion that the learned Judge is in error. The point made against the plaintiff is that when he went to make the second demand at the house of Abdul Aziz, although he had the three witnesses with him, he neither referred to the first demand nor invoked those witnesses to bear witness. The learned Judge is not correct in saying that at the time of the second demand there was no reference to the first demand. In the words used by the plaintiff, which are quoted by the learned Judge himself, the following words occur : 'Aur yeh bhi kah diya tha hi main ne in gawahon he semifine bhi apne mahan par peshtar kah diya tha ki tum gawah rahna main dawa karunga.'
5. We are of opinion that these words contain a very clear and specific reference to the first demand at the time when he received the news of the sale. As to the second point made against his statement, it is certainly true that in the record of his statement in Urdu there is no express sentence which says that on the occasion of his making the second demand he had asked the witnesses to bear testimony. We, however, find that in the English notes made by the learned Munsif there is a clear statement in the deposition of the plaintiff to the effect 'I again told the above persons to bear witness to the above facts.' It is apparent that there is an omission in the deposition recorded in the vernacular. The two cannot be said to contradict each other. It is possible that what happened was that the reader (peshkar) either omitted to record this pari of the plaintiff's statement or might have considered it a Superfluous repetition to he recorded. It is inconceivable that the learned Munsif would have noted it down in English unless the statement had actually been made by the plaintiff. The ground on which the second demand was held to be defective, therefore, altogether fails.
6. The substantial question which arises in this case is whether the plaintiff was bound to make fresh demands when the vendee, Abdul Aziz, had transferred the property to Abdul Karim. The learned Judge has himself conceded that this transfer took place in order to defeat the plaintiff's right of pre-emption. Having regard to the dates alleged by the plaintiff, it is also clear that the pre-emption demands must have been made before the transfer to Abdul Karim. The question which arises then is whether it was incumbent on the plaintiff pre-emptor to make fresh demands when the vendee, to whom he had already made the demands required by law, transferred the property to another person.
7. Mr. Wilson, in his book on Anglo-Muhammadan law, paragraph 390, says that the right to claim pre-emption is not affected by any intermediate dealings with the property. The proceedings must, in any case, be taken against the original purchaser, but when a decree has been obtained against him, it can be enforced against any person deriving title from him by purchase, gift, inheritance, or otherwise.
8. This view is supported by Baillie on Muhammadan law (Vol. 1, p. 503) and Hamilton's Hidaya (Vol. III, p. 586). Mr. Tyabji, in his book on Principles of Muhammadan Law, paragraph 551, says that the claim to pre-emption is not affeced by any act on the part of the buyer purporting to transfer or alienate the land, nor by his death; provided that any such act takes effect (holds good) until the court decrees the claim to pre-emption. In the illustration attached he says that if the buyer B purports to sell the land to BA, the pre-emptor can claim it either from B or BA and similarly if B purports to make a gift or waqf of it or to convert it into a mosque or cemetery or to let it on hire, the pre-emptor may annul the said acts.
9. In a case arising under a wajib-ul-arz, Kamta Prasad v. Mohan Bhagat (1909) I.L.R. 32 All. 45, it was held that a subsequent transfer by a vendee was subject to the pre-emptor's right of pre-emption. In the case of Khettar Chandra Basu Mallik v. Nabin Kali Devi (1913) I.L.R. 35 All. (sic), which was a case under a custom governed by the Muhammadan law, it was pointed out that the second sale must be taken to have been made subject to the right of preemption, and the plaintiff was only bound to pre-empt the first sale, making of course the subsequent vendee a party to the suit so as to bind him by the proceedings. No authority to the contrary has been cited before us. We are accordingly of opinion that the plaintiff's right to pre-empt the property was complete after the demands had been duly made by him and that it was not at all incumbent on him to make fresh demands when Abdul Aziz transferred the property to Abdul Karim. The sale to Abdul Karim must be deemed to have been effected subject to any right of pre-emption in force by the plaintiff.
10. The lower appellate court has not recorded any finding as to whether the oral evidence produced by the plaintiff with regard to the making of the demands should or should not be believed, nor has it decided any other question which arose in the case. We accordingly allow this appeal and setting aside the decree of the lower appellate court remand the case for disposal of the remaining issues according to law. Costs here and hitherto will abide the event.