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Golam Kibria Molla Vs. Abdur Rouf Molla and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata High Court
Decided On
Case NumberSecond Appeal Nos. 158 and 159 of 1967
Judge
Reported inAIR1976Cal205
ActsMohammedan Law
AppellantGolam Kibria Molla
RespondentAbdur Rouf Molla and ors.
Appellant AdvocateC.F. Ali and ;Hafizur Rahaman, Advs.
Respondent AdvocatePanchanan Pal and ;Jyotsna Das, Advs.
DispositionAppeals dismissed
Cases ReferredRujjub Ali Chopedar v. Chundichurn Bhadra
Excerpt:
- .....the learned appellate court below ought to have held that the formalities, particularly of the talab-i-ishhad, have been complied with as required by the mahommedan law and that the plaintiff was entitled to get decrees. mr. pal, the learned advocate for the respondents, however, submits that the evidence in the instant case does not disclose that the essential formalities required under the mahommeden law have been followed and that in a case like this strict observance of the requirements of the mahommedan law is essential.4. there is no dispute that the purchasers in the present case are not co-sharers with the plaintiff or joherannessa bibi, the vendor. the finding of the trial court is that after the purchase, the defendants for the first time attempted to catch fish in the.....
Judgment:

R. Bhattacharya, J.

1. These two second appeals have been directed against the decisions in the first appeals reversing the judgments and the decrees passed in the original suits started by the plaintiff, Golam Kibria Molla.

2. The plaintiff's case is that he is one of the co-sharers in respect of the, disputed tank in plot No. 1976 under khatian No. 1596 of Mouza Jujarsaha, P. S. Panchla in the District of Howrah. The allegation is that Joherannessa Bibi, a co-sharer of his, sold a portion of her share in the disputed tank to third party outsiders, Golam Kader, Sadeque Molla and Golam Kuddus. The said Joherannessa Bibi sold another portion of her share in the disputed tank to another set of outsiders, namely, Abdul Rauf, Abdul Kalam, Abdul Salam, Abdul Mannan and Abdul Hannan. When the defendants came to catch fish in the disputed tank, the plaintiff for the first time came to know about the sales and in presence of several persons he wanted to exercise the right of pre-emption by purchasing the shares of Joherannessa Bibi by offering proper consideration. The defendant-purchasers refused to accept the offer of the plaintiff and therefore, the plaintiff filed two suits in respect of the two different kobalas against the purchasers. The two suits were heard analogously and by a common judgment, the learned trial court passed decrees in favour of the plaintiff. The defendants appealed and the two appeals were heard analogously and the learned Subordinate Judge who heard the appeals allowed the said appeals and dismissed the suits by setting aside the judgments and the decrees of the trial court. Against those two decisions, the two appeals under consideration have been heard analogously here also.

3. Mr. Ali, the learned Advocate appearing on behalf of the plaintiff-appellant has submitted that the learned appellate court below ought to have held that the formalities, particularly of the talab-i-ishhad, have been complied with as required by the Mahommedan Law and that the plaintiff was entitled to get decrees. Mr. Pal, the learned Advocate for the respondents, however, submits that the evidence in the instant case does not disclose that the essential formalities required under the Mahommeden Law have been followed and that in a case like this strict observance of the requirements of the Mahommedan Law is essential.

4. There is no dispute that the purchasers in the present case are not co-sharers with the plaintiff or Joherannessa Bibi, the vendor. The finding of the trial court is that after the purchase, the defendants for the first time attempted to catch fish in the disputed tank in Sravan, 1370 B. S. The kobalas were executed on 12th of October, 1960. According to the allegation of the plaintiff, long after the said date in July, 1963, the defendants went to catch fish from the tank on the basis of their purchase. It appears from the judgment of the trial court that the learned Munsif allowed the decree on the finding that the plaintiff, as soon as he got the information about the catching of fish, came to the tank to object to the same and in presence of two persons made a claim of his right of the pre-emption expressing his readiness and willingness to pay money for such pre-emption. It was contended before the trial court from the side of the defendants that the witnesses were not invoked by the plaintiff with reference to his first demand as required by the Mahommedan Law, The learned Munsif, however, was of the opinion that as the plaintiff made unequivocal demand for his right of pre-emption in presence of other persons, he was entitled to get the decree. The learned Subordinate Judge in the first appeal below, on the contrary, came to the finding that there was no invoking of the witnesses as required by talab-i-ishhad and, therefore, for non-compliance of the farmalities required under the Mahommedan Law, no decree could be passed in favour of the plaintiff. From the evidence and the findings of the courts below, there can be no doubt that when the defendants for the first time came to catch fish from the disputed tank after their purchase, the plaintiff immediately came to the tank and objected to the defendants' catching fish. The evidence also shows that severalpersons were present when the plaintiff wanted to assert his right of pre-emption offering to purchase the property from the defendants on proper consideration. Two witnesses have been examined in the present case on behalf of the plaintiff to show that the plaintiff objected to the catching of the fish by the defendants and that he also expressed his willingness to purchase the property from the defendants.

5. In order to get a decree for preemption under the Mahommedan Law where an outside party has purchased a share of a co-sharer, it is necessary, according to the Mahommedan Law, that two formalities are to be observed. The first formality is known as talab-in-mowasibat This formality requires that as soon as a co-sharer comes to know about a sale of a property by a co-sharer to an' outsider, he must immediately on getting such information of sale declare his intention that he is ready and willing to assert the right of pre-emption. The next formality to be observed by the intending purchaser is known as talab-i-ishhad. According to this step, the intending cosharer-purchaser must without any unreasonable delay affirm, as soon as practicably possible after the demand under talab-i-mowasibat, his intention to exercise the right of pre-emption and make a formal demand for the same either in the presence of the buyer or the seller or upon the subject-matter of sale in presence of at least two persons whom he has to invoke as witnesses end in this demand he is to reassert his right of preemption with reference to his first demand, known as talab-i-mowasibat.

6. The first question that arises for consideration is whether there must be two demands separately in the forms of talab-i-mowasibat and talab-i-ishhad, Law cannot be such as would be inapplicable to practical life. There may be instances where separate talab-i-mowasibat, namely, the first demand, may not be necessary as in the case where a person for the first tune gets information about the sale by his co-sharer and immediately on such information gives out his intention to assert the right of pre-emption and demands the property by way of preemption standing upon the disputed property invoking witnesses. In the case before us, according to the story of the plaintiff, when he heard about the catching of fish by the defendants, he came to the tank and learning about the purchaseof the defendants from his- co-sharer, immediately objected to the same and declared his intention to assert his right and demanded to purchase the property by offering proper consideration. In the present case, therefore, there cannot be any occasion for the first demand, According to the plaintiff, as soon as he got information, he asserted his right and made the demand as required by talab-i-mowasibat and talab-i-ishhad and thus both kinds of demands merged into one. That the two demands of talab-i-mowasibat and talab-i-ishhad may, be combined has been propounded and accepted by this Court. In this connexion, I may refer to the Division Bench decision of this Court in the case of Abdul Rahhn v. Maidhar Gazi, reported in 32 Cal WN 1163 = (AIR 1928 Cal 584). The main judgment was delivered by Mr. Justice Mukherjea agreed to by Mr. Justice Cuming. There cannot be any doubt that there may be cases when combined demands would be sufficient. Of course in that case it has got to be seen whether there was any occasion or opportunity for making the first demand of talab-i-mowasibat separately.

7. The main question that is put forward for decision in this appeal is whether for compliance of the second demand, namely, talab-i-ishhad, invocation of witnesses would be essentially necessary and whether in the present case before me, there was any invocation of witnesses or whether there is sufficient compliance of talab-i-ishhad when the plaintiff intended to exercise his right to preempt and gave out to purchase the properties from the third party-purchasers. Mr. Ali has contended that when the plaintiff demanded the property by way of purchase and gave out his intention to exercise his right in presence of persons, there was substantial compliance with the requirements of the Mahommedan Law. On this question, the view or the decision of our Court is quite clear. It has been held by this Court that under the Mahommedan Law invocation of witneses is essential for talab-i-ishhad in the matter of exercising the right of pre-emption. I may first of all refer to the Division Bench decision of this Court in the case of Sk. Pachumuddin Nayek v. Sk. Abdul Gaffur appearing in 42 Cal WN 300 = (AIR 1937 Cal 283). This was an appeal under the Letters Patent from the Judgment of Edgley, J. Mr. Justice Edgley on consideration of several decisions held :

'The essence, therefore, of the ceremony of the invocation, according to theview which has been adopted in this Court, seems to be that witnesses to the ceremony must be called for the express purpose of witnessing the preemptor's claim for pre-emption and further, their attention must be directly drawn to the farts and circumstances which give rise to the claim for pre-emption and they must be asked in sufficiently clear terms to be witnesses of the fact that the preemptor has claimed his right.'

In the Letters Patent appeal Mitter, J. considered different cases and particularly dealt with the trend of decisions of this Court referring to several cases. In that case the contention of the appellant was that absence of proper invocation of witnesses for talab-i-ishhad was not fatal to the right of pre-emption. The earliest case considered was the case of Iswar Chandra Saha v. Mirza Nisar Hossein reported in (1864) WR (FB) 351. In that case though the plaintiff expressed his desire to purchase and offered money in presence of witnesses, he did not call upon those persons to be the witnesses of his acts. It was held that the plaintiff did not perform the second ceremony of 'affirmation by witnesses' as strictly as required by the Mahommedan Law. The right oil pre-emption was not allowed to the plaintiff as the witnesses were not duly invoked. This decision was of the year 1864.

8. Again in 1890 in the case of Rujjub Ali Chopedar v. Chundichurn Bhadra, (1890) ILR 17 Cal 543 (FB) the question arose whether for performing talab-i-ishhad the person demanding preemption should declare that he had made immediate demand and at the same time should invoke witnesses to attest it. There the Full Bench decision of this Court was of the view that one essential portion of the formalities required for talab-i-ishhad the calling of witnesses to the fact of his having made the first demand and his continuing such demand saying that he was a claimant for pre-emption and the question was answered in the affirmative. In the case reported in 32 Cal WN 1163 = (AIR 1928 Cal 584) already mentioned, it was also held that the invocation of witnesses was an essential part of the ceremony of talab-i-ishhad. I quote below a relevant portion from the judgment:

'No particular form of words is necessary for the invocation of witnesses, but the claimant in the presence of witnesses must say to the following effect: 'Such a person bought such a property (sufficiently indicating the same) ofwhich I am the shefi; I have already claimed by right of shufa and now again claim it, be therefore witnesses thereof'.

(Amur Ali on Mahommedan Law Fourth Edition, Vol. II, p. 725).

However, on consideration of the decisions arrived at by this Court, I have no doubt to hold that invocation of witnesses by the intending co-sharer-purchaser by exercising right of pre-emption must invoke witnesses relating to his second demand for pre-emption and also the first demand for exercising right of pre-emption when there was any. Of course there cannot be 'any specific form of invocation of witnesses. A person may address the witnesses and ask them to be witnesses. He may also draw the attention of the witnesses to his demand and assertion of his right. The essential ingredient for invocation of witnesses is to draw the attention of the persons present to his demand and assertion as stated and to attest the same. The contrary view taken in some decisions of the Allahabad High Court will be of no assistance on the face of the consistent view of our High Court.

9. Corning to the facts of the present case, I find that although several persons were present when the plaintiff asserted his right of pre-emption and wanted to purchase the property from the defendants on proper consideration, he did neither ask anybody to witness his demand and assertion nor did he draw the attention of any of the persons present to his claim or right. I have gone through the evidence not only of the plaintiff but also his witnesses. I find no indication that the plaintiff invoked the witnesses as required for the fulfilment of talab-i-ishhad. Strict compliance with the formalities is required in this respect. As the formalities of the talab-i-ishhad were not gone into, the plaintiff cannot claim any relief in this case. The learned Subordinate Judge rightly allowed the appeals and dismissed the suits.

10. In the result, both the appeals fail and the same are dismissed with costs. This judgment shall govern both the appeals.

11. I have heard Mr. Ali, the learned Advocate for the appellant praying for leave to prefer an appeal under Letters Patent. The leave is refused.


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