1. The three second appeals Nos. 1371, 1372 and 1373 arise out of three pre-emption suits instituted by Abdul Baqi Khan against Sadiq Ali and others in the year 1918. Two of them were instituted in the Court of the Munsif and the third in that of Subordinate Judge.
2. In order to understand the pleadings in the case it is advisable to give a pedigree of the parties to the three appeals.
| | | | |
Abdullah Ghulam Hashmat Kariman, Three
alias Muhammad, Ali, other
HIngan, | | | daughters.
| | Sadiq Ali. |
| | _______________
| | | |
| | Abdul Baqi. Abdul
| __________________________________ Sattar.
| | | |
| Anwar Ali, Sakma BibI. Amena Bibi.
| | |
Abdul Karim, Halimutinissa Mariam Bibi.
Musammat Sakina Bibi was married to Abdul Karim Khan. Some time ago a house was purchased by Azmatullah and his son Abdullah alias Hingan in equal shares. Some years afterwards Sadiq Ali, son of Hashmat Ali, sold his interest in the house to Ghulam Musammat. The latter also acquired the shares of his three sisters other than Musammat Kariman. In 1909 Ghulam Muhammad sued for partition against the other members of the family whose shares he had not purchased and obtained a decree. In 1915 Abdul Karim Khan and his sister, Halim-un-nissa, brought a suit for the recovery of their shares against Musammat Kariman and others. The chief defence to the suit was put forward by Abdul Baqi who was also a defendant in the case. He resisted the suit by pleading adverse possession. The claim was decreed by the learned Munsif on the 7th August 1915. On appeal the decree of the First Court was set aside on the plea that the claim was barred by the principle of res judicata. Thereupon Abdul Karim filed a second appeal to this Court which was admitted in November 1915 and the case was remanded by this Court on the 15th November 1918 for trial on the merits. While the second appeal was pending in this Court Abdul Karim and his wife Musammat Sakina Bibi executed on the 22nd December 1917 two sale-deeds in respect of their separate shares in the house mentioned above in favour of Sadiq Ali. On the 15th March 1918 Anwar Ali sued to recover possession of their shares on the ground of pre-emption. The claim was brought against the vendors, Abdul Karim and Sakina Bibi, as also against Sadiq Ali, the vendee. On the 14th May 3918 the vendee and Anwar Ali, the pre-emptor, entered into a compromise by which not only the sale-deed of the 22nd December 1917 was allowed to remain but Anwar Ali agreed to convey his own share also to Sadiq Ali. On the 20th August 1918 a decree was passed by the learned Munsif in the suit of Anwar Ali in terms of the compromise filed. On the 7th September 1918 Abdul Baqi instituted two suits on the basis of pre-emption against Sadiq Ali, namely, one in respect of the transfer made by Sakina Bibi and the second in respect of the transfer of the share of Anwar Ali under the compromise of the 14th May 1918 which was incorporated into the decree of 20th August 1918. On the 16th December 1918 a third suit was instituted by Abdul Baqi against Sadiq Ali inrespect of the transfer made by Abdul Karim on the 22nd December 1917 in favour of Sadiq Ali. Of these three suits Lie suit relating to the transfer of Anwar Ali was instituted in the Court of the Subordinate Judge of Cawnpore. The other two suits were filed in the Court of the Munsif and were transferred to the file of the Subordinate Judge. Sadiq Ali resisted all the three suits on various grounds. The evidence for all the parties in the three suits was recorded in Anwar Ali's case and one judgment governed all the three suits. The learned Subordinate Judge, after a careful consideration of all the evidence in the case, came to the conclusion that the plaintiff's claim in all the three suits should fail. He was of that opinion in respect of the transfers of Abdul Karim and Sakina Bibi on the ground that the two demands required by the Muhammadan Daw had never been made. In the suit of Anwar Ali he was of opinion that, as the transfer was by means of a decree, no right of pre-emption could be asserted. Abdul Baqi preferred three appeals from the decree of the learned Subordinate Judge. The lower Appellate Court disagreed with the first Court on the evidence and came to the conclusion that the two demands required under the Muhammadan Law were made. The learned Judge of the lower Appellate Court was definitely of opinion that the first demand or the Talab-i-mawasibat was made as soon as the plaintiff -pre-emptor heard of the sales of Abdul Karim and Sakina Bibi. As to the second demand he was also of opinion that it was made on the spot where the property transferred is situate. As to the transfer by Anwar Ali, the learned Judge was of opinion that the transfer was not, properly speaking, by a decree of a Court, but in any case in the circumstances the plaintiff-pre-emptor had the right of pre-emption. The decrees of the first Court were accordingly set aside and the claim of the plaintiff-pre-emptor was decreed in all the three suits.
3. Sadiq Ali has preferred the three appeals before us. We take up first the appeals that relate to the transfers made by Abdul Karim and his wife, Sakina Bibi, on the 22nd December 1917. Three objections are urged on behalf of the appellant to the findings of the lower Appellate Court. It is urged on behalf of the appellant that the learned District Judge misread and misquoted the evidence of Rajjab Beg and was not, therefore, justified in disagreeing with the first Court and holding that the first demand was made by the plaintiff-pre-emptor. The second objection is that on the evidence of Rajjab Beg himself the demand, if made, was of no value, as no sale had taken place at the time the matter was reported by Raj jab Beg to the plaintiff-pre-emptor. The third objection is that the second demand on the evidence for the plaintiff-pre-emptor was an invalid demand under the Muhammadan Law. The learned Counsel for the appellant has cited case-law in support of his second and third objections. We think it sufficient to remark with regard to the first objection that after hearing the evidence of Raj jab Beg read we are not prepared to agree with the contention of the learned Counsel for the appellant that the lower Appellate Court has misread or misquoted the statement of Raj jab Beg. The learned Judge of the lower Appellate Court was quite justified in interpreting the evidence of Raj jab Beg-as he has done and his finding on that point is a finding of fact which we are not permitted to disturb. We do not think that there is much force in his second objection also. It also depends upon the interpretation of the evidence of Raj jab Beg. The learned Judge of the lower Appellate Court has construed the statement of Raj jab Beg to mean that he reported to the plaintiff-pre-emptor that a sale of the shares of Abdul Karim and Sakiua Bibi had taken place. The plaintiff-pre-emptor was justified on that evidence to make the first demand. It would serve no useful purpose 1 in view of our finding on the third objection to discuss the case-law as to when should the first demand be made, that is, whether the first demand should be made when the sale is completed under the provisions of Act IV of 1882, or when the sale according to the intention of the parties has been completed. We think that the third objection of the appellant must prevail. The learned District Judge has not come to a clear finding on the question whether at the time of making the second demand the plaintiff-pre-emptor called the attention of his witnesses to the fact that he had already made the first demand. The finding of the lower Appellate Court upon this point is in the following words:
As regards the affirmatory demand, it was urged on behalf of the respondent that it was irregular that the witnesses who had accompanied the plaintiff-appellant to the premises were not called upon to bear witness to the fact that the immediate demand had already been made.
4. This is true as far as the evidence of the witnesses is concerned, though the plaintiff himself states that the witnesses were invoked after the second demand on the premises. Even assuming that there was no special invocation the requirements of Muhammadan Law were sufficiently complied with when the Talab-i-istishhad was made in the presence of the witnesses in whose presence the immediate demand had been made see Chotu v. Husain Bakhsh A.W.N. (1893) 101. The learned Counsel for the respondent-pre-emptor asks this Court to consider this finding as a finding that at the time of the second demand the plaintiff had called the attention of his witnesses to the fact that he had made the first demand.
5. We are unable to accede to this contention. The language of the learned Judge just quoted above would not bear any such interpretation. After reciting that the witnesses had not stated that at the second demand their attention was called by the plaintiff to the first demand the learned Judge goes on to say that the plaintiff states that he had done so. The learned Judge stops there and goes on to he consideration of the case from another point of view, taking it for granted that the plaintiff had not called the attention of his witnesses to having made the first demand. We are, therefore, of opinion that the learned Judge of the lower Appellate Court did not hold, that he believed the evidence of the plaintiff-pre-emptor not only uncorroborated but against the statements of his own witnesses. There were only two courses open to us, either to remand the case to the Court below to get a definite finding on the question raised or to hear the evidence ourselves and record a finding. We have adopted the latter course. We have heard the evidence for the plaintiff-pre-emptor read to us in extenso and criticized. We have no hesitation in holding that the plaintiff's statement, uncorroborated by any of his witnesses cannot be believed and weft do not believe it. We, therefore, hold that the second demand deposed to by the plaintiff and his witnesses was an invalid demand under the Muhammadan Law. This finding would at first sight dispose of the two Appeals Nos. 1372 and 1373, but the contention on behalf of the plaintiff-pre-emptor is that even assuming the omission at the second demand referred to above, the requirements of the Muhammadan Law are sufficiently complied with when the Talab-i-istishhad is made in the presence of the witnesses in whose presence the first demand was made. In support of this contention reliance is placed on the cases of Chotu v. Husain Bakhsh A.W.N. (1893) 101 and Baru Mal v. Tansukh Rai 29 Ind. Cas. 1001 : 13 A.L.J. 717 : 37 A. 524. The case of Chottu was considered by several learned Judges of this Court subsequent to 1893 and was dissented from: vide the case of Mubarak Husain v. Kaniz Bano 27 A. 160 : A.W.N. (1904) 201 : A.L.J. 569. We would also refer to the cases decided in other High Courts on the same point, namely, those of Sarjug Singh v. Jagmohan Singh 51 Ind. Cas. 40 and. Rujjub Ali Chopedar v. Chundi Churn 17 C. 543 : 8 Ind. Dec. (N.S.) 902. The case reported as Baru Mal v. Tansukh Rai 29 Ind. Cas. 1001 : 13 A.L.J. 717 : 37 A. 524 does not really touch upon the question under discussion. In that case it was decided that the two demands may be combined together if the vendor and the vendee are present at the time the demand is made or the demand is made on the property sold. In the present case it is not pretended that when either of the two demands was made the vendor or the vendee was present or that the first demand was made on the property. We, therefore, hold that the claim of the pre-emptor fails. We allow the appeals of Sadiq Ali in respect of the transfer made by Abdul Karini and Sakina Bibi, i.e., we allow Appeals Nos. 1372 and 1373.
6. The Appeal No. 1371, as we have already stated above, relates to the transfer made by Anwar Ali. We need not discuss the question whether any right of pre-emption accrued to Abdul Baqi, because the transfer was in terms of a compromise which compromise was embodied in the decree. Sadiq Ali, according to our decision in Appeals Nos, 1372 and 1373, had acquired a good title on the 22nd December 1917 in the house in question. He thus became a co-sharer of Anwar Ali by virtue of his purchase of 22nd December 1917. The share of Anwar Ali was not transferred till the 27th August 1918. Abdul Baqi's right of pre-emption is based upon vicinage. Sadiq Ali had on the 27th August 1918 a better and a superior right of pre-emption to that of Abdul Baqi. The claim of the latter, therefore, with regard to the share of Anwar Ali also fails.
7. We allow Appeal No. 1371 also.
8. The result is, we allow all the three Appeals Nos. 1371, 1372 and 1373 of 1919, set aside the decrees of the Court below with costs to Sadiq Ali of all the Courts including fees in this Court on the higher scale.