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Abdul Rahim and ors. Vs. Tufan Gazi and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1928Cal584
AppellantAbdul Rahim and ors.
RespondentTufan Gazi and ors.
Cases ReferredMerchants Trading Co. v. Banner
- .....and that both cannot be interfered with. he certainly, and the other defendants through or under him possibly, will always be able to defeat the very object which the law of preemption aims at. what reason is there then to give preference to the plaintiffs over the defendants in the matter of the share in suit? i am accordingly of opinion after giving my best consideration to the case that the second contention of the appellant should not be entertained.12. the result, in my opinion, is that this appeal should be dismissed with costs.cuming, j.13. i agree. the appeal is dismissed with costs.

Mukerji, J.

1. The plaintiffs are the appellants in this appeal. They instituted the suit which has given rise to this appeal for recovery of possession on declaration of their right of pre-emption in respect of a 4 annas share in a tank with its banks. The entire tank with its banks at one time belonged to the plaintiffs who in Sravan 1325 sold a 6 annas share of the same to defendant 1. There was a condition in the sale-deed, which, translated literally, runs:

Be it mentioned that if any necessity arises for you (i.e., vendees) to sell the tank and its banks, you shall not be entitled to sell the same anywhere else : on receipt of proper price you will give the same to us (i.e., the vendors); and also if any necessity arises for us to sell them instead of selling them elsewhere we shall sell them to you on receiving proper price.

2. The plaintiffs' case was that in violation of this stipulation defendant 1 sold a 4 annas out of the share purchased by him to defendants 2 to 6, and coming to know of it they made the necessary demands, namely, the talab-i-mowasibat and the talab-i-ishtishhad and then instituted the suit.

3. Defendants 3, 4 and 5 contested the suit. Their allegations were that defendant 6 was a minor and was not properly represented, that there was no contract for re-sale such as was alleged on behalf of the plaintiff, that the defendants were bona fide purchasers and that the formalities requisite for the demands for pre-emption were not observed.

4. The minority of defendant 6 was proved and he not being properly represented the Munsif, holding that the requisite demands had been made by the plaintiffs, gave them a decree for 5/6ths share in the property, namely, the 4 annas share of the tank and its banks. He dismissed the suit as against defendant 6. The Subordinate Judge on appeal has dismissed the entire suit.

5. The plaintiff's first contention relates to the sufficiency of the demands. The position, so far as this matter is concerned, is this : The Subordinate Judge found the talab-i-ishtishhad was invalid inasmuch as it was not proved that when this demand was made there was a reference to the talab-i-mowasibat, and that under the law an express reference to the same is necessary. As regards the talab-i-mowasibat he was of opinion that of the three witnesses, 2, 3 and 4, who were called on behalf of the plaintiff on his point, the first did not really prove it and the last one could not be relied on and that the second witness proved that one of the plaintiffs only offered Rs. 100; and did nothing else. An examination of the evidence of this witness, however, reveals a good deal more than what the Subordinate Judge has referred to in this way. He seems to have missed the point which is apparent on the face of the evidence of this witness, that the demand was made on the banks of the tank and immediately as the plaintiffs came to know of the fact that defendant 1 had sold to the other defendants. On this point the argument that has been advanced on behalf of the appellants is that in the circumstances disclosed there was no necessity for a second demand, and reliance was placed on their behalf in this respect on the following passage in Mr. Ameer Ali's Muhammadan Law, Edn. 4, Vol. 2 p. 727:

But the talab-i-ishtishhad may be combined with the talab-i-mowasibat, e.g., if at the time of the talab-i-mowasibat, the pre-emptor had the 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 demands, and there ?would be no necessity for the second.

6. This proposition has received judicial recognition in the case of Nundo Pershad Thakur v. Gopal Thakur [1884] 10 Cal. 1008, in which Garth, C.J., Beverley, J., concurring, quoted in support of it Futawa Alamgiri, (V 268) and said:

The talab-i-ishtishhad is only necessary if at the time of making the talab-i-mowasibat or immediate demand there was no opportunity of invoking witnesses; as for instance, when the pre-emptor, at the time of the 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.

7. This decision was overruled, but on a different point by a Pull Bench of this 'Court in the case of Rujjub Ali v. Chundi Churn [1890] 17 Cal. 543 (F.B.). In that case the question referred to the Full Bench was

when the person claiming a right of preemption has performed the talab-i-mowasibat in the presence of witnesses, but not in the presence either of the seller or of the purchaser, or, on the premises, is it necessary, when performing the talab-i-ishtishhad that he should declare that be has made the talab-i-mowasibat, and at the same time should invoke witnesses to attest it?

8. This question was answered in the affirmative, but the correctness of the proposition referred to above does not appear to have been in any way shaken. Amongst the formalities necessary for the talab-i-ishtishhad, however, is that of invocation of witnesses. If this has been done in the first demand, no second demand, according to the proposition above mentioned would be necessary. The right is strictissimi juris and failure to perform the demands in accordance with the requirements of the Mahomedan law would defeat the plaintiff's claim. This invoking of witnesses, as far as may be gathered from the authorities, is no mere matter of form; it imparts to the demand a solemnity clothed in which the demand becomes not a casual one but on the other hand assumes the nature of a serious transaction. 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) of which I am the shaft; I have already claimed my right of shufa and now again claim it, be, therefore, witness thereof : Ameer Ali on Muhomedan law, Edn. 4 Vol. 2, p. 725.

9. The last word or words to that effect must be said even where the two demands are combined into one. The importance of this invocation as an essential part of the ceremony has been impliedly recognized in several cases amongst which reference may be made to Jadu Singh v. Rajkumar 4 B.L.R.A.C. 171, Ramdular Misser v. Jhumack Lal Misser 8 B.L.R. 455. This part of the ceremony being admittedly absent even in respect of the demand that has been proved in plaintiffs' favour by their witness 3, the plaintiffs cannot possibly succeed under the Mahomedan law on which they rely.

10. The second contention urged on behalf of the appellants is that they are entitled to succeed on the basis of the contract embodied in the sale-deed, to which reference has already been made. There was an issue framed by the trial Court which was to the effect as to whether there was such a contract with the defendant 1 to re-sell and whether defendants 2 to 5 were aware of it. This issue was decided in plaintiffs' favour by the trial Court, but there has been no reference to it in the judgment of the lower appellate Court. It would have been necessary for us to send the case back to the lower appellate Court for the determination of the facts in connexion with that issue and also to express our opinion as regards the validity of this contract. This has been rendered unnecessary by reason of the failure of the plaintiffs to have defendant 6 properly represented in the suit. I am not pressed by the appellants' arguments which have been directed to re open the decree of the Munsif dismissing the suit as against the said defendant. The result is that even if the plaintiffs succeed on the footing of the contract they cannot, in any event, get a decree for the one-sixth share which belongs to that defendant. Now in a suit for specific performance on a contract of this kind the principle on which the Court will proceed is that a contract for the sale of, property in one lot will generally be considered indivisible, and the Court will not, as a general rule, compel specific performance of the contract, unless it can execute the whole contract. Or as Lord Romilly, M.R. expressed it:

This Court cannot specifically perform the contract piecemeal, but it must be performed in its entirety if performed at all; Merchants Trading Co. v. Banner [1871] 12 Eq. 18.

11. It is true that there are exceptions to this rule which may be justly made in view of the circumstances of any particular case. Even in cases where the contract is plain and certain in its terms and obligatory on both parties, which cannot readily be said of the contract in the present case, the right to specific execution is not absolute and its enforcement must rest on the sound discretion I of the Court, a judicial discretion, to be exercised according to the established principles of equity. In the present case the plaintiffs by their conduct have made it impossible for the Court to give effect to the contract in its entirety. The practical result of it is that defendant 6, a stranger, will have his title to one-sixth share and that both cannot be interfered with. He certainly, and the other defendants through or under him possibly, will always be able to defeat the very object which the law of preemption aims at. What reason is there then to give preference to the plaintiffs over the defendants in the matter of the share in suit? I am accordingly of opinion after giving my best consideration to the case that the second contention of the appellant should not be entertained.

12. The result, in my opinion, is that this appeal should be dismissed with costs.

Cuming, J.

13. I agree. The appeal is dismissed with costs.

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