1. The 'talab-i-mawasabat,' or immediate demand, should be made when a person entitled to pre-emption has hoard of a sale, on the instant, whether there is any one by him or not, and when he remains silent without claiming the right it is lost, Baillie's Digest of Muhammadan law, Bk. vii, ch. iii. The 'talab-i-ishhad,' or demand with invocation of witnesses, is a calling on witnesses to attest the immediate demand and must take place in the presence of the purchaser or seller or of the premises which are the subject of sale,--Baillie's Digest of Muhammadan Law, Bk. vii, ch. iii.
2. The Munsif dismissed the claim because it was obvious from the examination of the plaintiff that he did not, on hearing of the sale, immediately, on the instant, claim his right of pre-emption. He heard of the sale in the morning but did not assert his right until 7-30 or 8 in the evening. The plaintiff appealed and contended that the delay in making affirmation of his demand did not destroy his right of pre-emption.
3. The Judge, citing a decision of the Calcutta High Court noted in the
margin and based upon a decision of the Sudder
Mahomed Waris v. Hazee Dewanny Adawlut in 1857, held that the delay in this
Emam-ood-deen 6 W.R. case was not such that it interfered with the plaintiff's
173 right of pre-emption. He therefore remanded the case
under Section 351 for re-trial on the merits.
4. It is contended here by the special appellant that the delay was fatal. Moreover, the plaintiff had opportunities of asserting his right on the premises and before some labourers at work on the roof, and he neglected to do so, and so lost his right.
5. It is to be observed that the Munsif laid down as an issue whether or not the plaintiff had fulfilled the conditions of immediate demand, and demand with invocation of witnesses, and his judgment would seem to imply that he did not fulfil the condition of immediate demand, as he hoard of the sale in the morning and did not assert his right until 7-30 or 8 P.M. in the evening. On the other hand, the Judge seems to have lost sight of this finding, and to have addressed himself solely to the plea that the affirmation of purchase (before witnesses) in the evening was not such a delay as to vitiate the right of preemption. This clearly appears from his citing a judgment in which the question was whether the demand by invocation of witnesses had been made too late.
6. In special appeal the contention appears to be that neither of the conditions of immediate demand, nor demand with invocation of witnesses, has been made. At the same time the third plea seems to confuse both conditions, for it is not necessary that the immediate demand should be made on the premises, though it ought to have been made before the labourers. As the Munsif only received the evidence of one person, who was the plaintiff himself, for it does not appear that any evidence was offered by the defendant, and as the two judgments seem to relate to different demands, we think that we ought to consider what it was that the plaintiff really said, and what was the effect of his admissions.
7. The plaintiff at the outset of his examination stated that he heard of the sale for the first time on the 16th June in the evening at 5 P.M., when he returned from Court, and saw several men repairing the house in dispute. He asked them on whose part they were making repairs, and they said on the part of Ali Muhammad. 'I sent my brother,' the plaintiff' continued, 'in search of Ali Muhammad to his house, but he was not found; at 7-30 or 8 o'clock Ali Muhammad came to my house.' But in the after part of his deposition the plaintiff very distinctly stated that he heard at 7-30 A.M. from the labourers that 'they were repairing the house on the part of Ali Muhammad, who had purchased the house; after hearing this, I did not say a single word more to the labourers, but I at once sent my brother to Ali Muhammad to call him. I went to Court * * * * I told my brother only this much, go and call Ali Muhammad, I did not tell him anything more. I made mention about pre-emption for the first time at 7-30 in the eveningwhen Ali Muhammad came.'
8. This evidence justifies the decision at which the Munsif arrived, inasmuch as it shows that the plaintiff did not make the immediate demand on the instant when he first heard of the sale. He should have done so before the labourers. He said that two minutes after leaving the labourers lie sent his brother to call Ali Muhammad, but ho admits that he did not even before his brother claim the right. Although the plaintiff's intention doubtless was to make the demand to Ali Muhammad had he been found and had come to him in the morning, still the delay in making the immediate demand is such that cannot be remedied. The meaning of the word 'mawasabat' is literally jumping up (Baillie's Digest, Bk. vii, ch. iii), and though it has been said that the demand may be made at any time during the meeting at which the information has been received, still even if this were so, in this case it is clear that no demand was made until twelve hours after the plaintiff became aware of the sale, and then it was made at the same time with the demand with invocation of witnesses.
9. We are not called upon to say whether the Judge has rightly ruled (if he has so ruled) that the delay in making the demand with invocation of witnesses was not too late. The making of this demand is measured by the ability to do so, and the Judge considers, apparently that it was made with the least practicable delay. But if the Judge is to be understood as applying this test to the immediate demand, then we think that he is wrong, and that delay in making the immediate demand is fatal, because it must be made at once when the fact of the sale becomes known.
10. The Full Bench decision of this Court cited marginally ruled that, under
Section 24, Act VI of 1871, Muhammadan law is not
Chundo v. Hakeem Ali- strictly applicable in suits for pre-emption between
mooddeen H.C.R. N.W. Muhammadans not based on local custom or contract,
P. 1874 p. 28 but it is equitable in such eases to apply that law.
So in cases relating to gifts it was held in another Full Bench decision Shumshoolnissa v. Zohra Beebee H.C.R. N.W.P. 1874 p. 2, that it was equitable as between Muhammadans to apply Act VI of 1871 to such questions. The right of pre-emption is not a strong right, and it appears to us that any one claiming it should be held bound by the conditions of the Muhammadan law, and should promptly assert his right of pre-emption by the immediate demand. It is not surely the duty of the Courts to enlarge the conditions under which so inconvenient and sometimes oppressive a right can be asserted. Following the principle laid down in the Full Bench decisions of this Court already referred to, we think that the judgment of the lower Appellate Court is wrong, and that of the first Court should be restored. We, therefore, decree the appeal and reserve the judgment of the lower Appellate Court, and restore that of the first Court with costs.