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Musammat Nathu and ors. Vs. Shadi - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1915All394; 29Ind.Cas.495
AppellantMusammat Nathu and ors.
RespondentShadi
Cases ReferredFida Ali v. Muzaffar Ali
Excerpt:
pre-emption - muhammadan law--demand--when second demand unnecessary--sale in lieu of dower-debt--consideration. - - the plea taken before us is that the preliminary demands were not properly satisfied and, therefore, the suit ought to have been dismissed......facts are that at the time when the sale came to the knowledge of the plaintiff-pre-emptor, the vendee was present and witnesses also were present. the plaintiff at once claimed his right of pre-emption invoking the witnesses. it is urged that the two demands ought to have been made separately, one immediately after the other, that practically only oae demand was made and that does not satisfy the requirements of muhammadan law. the authorities are against the appellant; as mr. justice ameer ali in his book points out, if at the time of the talab-i-muwasibat the pre-emptor had an opportunity of invoking witnesses in the presence of the seller or the purchaser, or on the premises to attest the immediate demand, it would suffice for both the demands and there would be no necessity for.....
Judgment:

1. This is a defendant's appeal arising out of a suit for pre-emption. The pre-emptor's claim was based on Muhammadan Law. Both the Courts below have, decreed the claim and the defendant-vendee comes here in second appeal. The vendor is the husband of the vendee and the property was sold to the lady in lieu of her dower-debt. The plea taken before us is that the preliminary demands were not properly satisfied and, therefore, the suit ought to have been dismissed. The facts are that at the time when the sale came to the knowledge of the plaintiff-pre-emptor, the vendee was present and witnesses also were present. The plaintiff at once claimed his right of pre-emption invoking the witnesses. It is urged that the two demands ought to have been made separately, one immediately after the other, that practically only oae demand was made and that does not satisfy the requirements of Muhammadan Law. The authorities are against the appellant; as Mr. Justice Ameer Ali in his book points out, if at the time of the talab-i-muwasibat the pre-emptor had an opportunity of invoking witnesses in the presence of the seller or the purchaser, or on the premises to attest the immediate demand, it would suffice for both the demands and there would be no necessity for the second. The reason of this is obvious. A pre-emptor under the Mnhammadan Law directly he hears of the sale has to at once make a demand wherever he may be, whether the purchaser or the seller are or are not present, whether witnesses are or are not present, but it is necessary for him to convey knowledge of his demand to the vendee or the vendor and to call attention to the fact that he did make his first demand and to invoke his witnesses to that effect. Where all the parties are present and the witnesses are present, it is sufficient for him to make his claim and call the attention of the witnesses to the fact that he is doing so and that he insists upon his right. See the remarks in Nundo Pershad Thakur v. Gopal Thakur 10 C. 1008.

2. The next contention is that no right of pre-emption can arise where property is transferred by a husband to his wife in lieu of the dower-debt. This contention is based upon a passage to be found in Mr. Ameer Ali's book, page 713, Volume I (4th Edition). No other authority has been cited. On the other hand, there is a decision of this Court in Fida Ali v. Muzaffar Ali 5 A. 65 : A.W.N. (1882) 175 which is based upon a much older decision of the Sadr Dewani Adalat of 1864. Mr. Ameer Ali challenges this decision, saying that it appears to proceed on a wrong interpretation of the law but he does not point out the error or consider the question any further. We think, that we should follow the ruling of this Court and we, therefore, hold that under the circumstances of the present case the right of pre-emption did arise.

3. The result is that the appeal fails and is dismissed with costs, including fees on the higher scale.


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