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Jabbar Meah Vs. Jarfan Khan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1884)ILR10Cal383
AppellantJabbar Meah
RespondentJarfan Khan
Cases Referred and Ram Charan v. Narbir Mahton
Excerpt:
mahomedan law - pre-emption--ceremonies. - .....he had not, in compliance with the requirements of mahomedan law, performed the ceremony of tulub-i-mowashibat. the munsiff says in his judgment: 'the plaintiff on hearing this,' that is, on hearing the fact of the sale from his wife,' entered his house, opened his chest, took rs. 47-4, called the witnesses, proceeded to the premises, the subject of sale, and there cried aloud the following words: 'that he has the right of pre-emption to purchase the said land, and he shall exercise the said right, let the defendant no. 2 receive the refund of the consideration money and make over the land to him (the plaintiff).' the defendant no. 2 refused to accept the offer, on which the plaintiff went with the witnesses to the place where the defendant no. 1 was residing, and there also the.....
Judgment:

Field, J.

1. This is a case of pre-emption. The Munsiff held that the plaintiff was not entitled to succeed because he had not, in compliance with the requirements of Mahomedan law, performed the ceremony of Tulub-i-mowashibat. The Munsiff says in his judgment: 'The plaintiff on hearing this,' that is, on hearing the fact of the sale from his wife,' entered his house, opened his chest, took Rs. 47-4, called the witnesses, proceeded to the premises, the subject of sale, and there cried aloud the following words: 'That he has the right of pre-emption to purchase the said land, and he shall exercise the said right, let the defendant No. 2 receive the refund of the consideration money and make over the land to him (the plaintiff).' The defendant No. 2 refused to accept the offer, on which the plaintiff went with the witnesses to the place where the defendant No. 1 was residing, and there also the plaintiff performed the said ceremony, that is ceremony of Tulub-i-shad. Now, it is clear that immediately upon hearing of the sale of the property the plaintiff did not make the demand or perform the ceremony of Tulub-i-mowashibat. At page 481 of Baillie's Digest of Mahomedan Law, there is the following passage, in which the law on the subject is stated: 'By Tulub-i-mowashibat is meant that when a person who is entitled to pre-emption has heard of a sale he ought to claim his right immediately on the instant (whether there is any one by him or not), and when he remains silent without claiming the right, it is lost'; and then is given the instance of a person reading a letter in the beginning or middle of which the information as to the sale is contained. If he wait till he finish the whole letter without making the Tulub-i-mowashibat the right of pre-emption is lost. The Judge quotes and relies upon a passage from the same work, p. 484, which is as follows: 'The Tulub-i-mowashibat or immediate demand is first necessary, then the Tulub-i-shad, or demand with invocation, if at the time of making the former there was no opportunity of invoking witnesses, as, for instance, when the pre-emptor at the time of hearing of the sale was absent from the seller, the purchaser and the premises. But if he heard it in the presence of any of these, and had called on witnesses to attest the immediate demand, it would suffice for both demands and there would be no necessity for the other.' Now, the facts of the present case do not fall within the meaning of the passage last quoted. The plaintiff did not, on hearing of the sale, immediately call witnesses to attest the immediate demand. He made a delay, went into the house, got the money, and then called the witnesses, and this being so it is clear that the case is not one to which the second quotation from Mr. Baillie's work would apply. We may refer to the cases of Mona Singh v. Mosrad Singh 5 W.R. 203 and Ram Charan v. Narbir Mahton 4 B.L.R. A.C. 216 : 13 W.R. 259 which have been cited by the vakeel for the appellant, as instances of what is required by the law in conformity with the first of the above extracts from Mr. Baillie's work. We think that in the present case the requirements of the law have not been complied with.

2. The decision of the District Judge must, therefore, be set aside and that of the Munsiff restored with costs of both Courts.


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