1. This appeal arises out of a claim for pre emption based on Muhammadan Law. The suit was also based on custom, but the Courts below found that the alleged custom was not proved, so that the claim is one under the Muhammadan Law, and the only question in, whether the requirements of that law as to preliminary demands have been complied with. It is admitted that the first demand (talab-i-mowasibat) was performed. The dispute between the parties relates to the performance of the second demand, viz., talab-i-ishtishad, or invocation in the presence of witnesses. The rule ordinarily is that this demand should be made in presence of witnesses either before the vendor or the vendee or on the premises. In this case, the demand was not made in the presence of the vendee or on the premises, but it was made in the presence of witnesses before the vendor. The question is, whether such a demand is valid under the Muharnmadan Law. It seems on the authorities that the validity of a demand made in the presence of witnesses before the vendor is subject to the further qualification that the vendor must have been in possession of the property sold at the time of the demand.
2. In Ameer Ali's Muhammadan Law, Vol. I, page 607, it is said: 'In order to perform this ceremony (talab-i-ishtishad), the pre-emptor must take some witnesses with him the to vendor, if the property sold be still in his possession, or to the vendee or to the property which is the subject-matter of the claim.' In Baillie's Muhammadan Law, it is laic down on page 484, that 'if possession has no been taken of the thing sold, the pre-emptor has an option, and may, if he please, make the demand in the presence of the seller or on the premises; or he may make it in the presence of the purchaser, though he is not in possession, because he is the actual proprietor.' In the Hedaya, Vol. III, Book XXXVIII, Chapter II, page 571, it is said: 'It is, there fore, necessary afterwards to make the talab-i-ishtishad wa takreer, which is done by the Shafee taking some person to witness, either against the seller, if the ground sold be still in his possession, or against the purchaser or upon the spot regarding which the dispute has arisen; and upon the Shafee thus taking some person to witness his right of Shufa is fully established and confirmed.' In Macnaghten's Principles of Muhammadan, Law, page 181, the answer to question No. I was that talab-i-ishtishad should be made on the premises or before the seller or purchaser, whichever of them is in possession. So that, it is clear upon all these authorities that the demand would not be a valid demand if it is made in the presence of the seller only unless the seller was in possession. If the vendee had been put into possession, a demand in the presence of witnesses made before the seller and not before the vendee, would not be valid. In this respect, the view taken by the Court below seems to be correct. It has been found that the vendee was in possession. As a matter of fact, a lessee of the vendor was in actual possession, but from the date of the sale the proprietary title having been passed to the vendee, the possession of the lessee was the possession of the vendee. As, the second demand was not made in the presence of the vendee or on the premises, the requirements of the Muhammadan Law were not complied with, and the plaintiff's suit was rightly dismissed. I dismiss the appeal with costs.