1. This is an appeal by defendant No. 1 named Nuri Mian against the appellate judgment of the District Judge of Saran, dated the 7th April 1914.
2. Ambica Singh, the plaintiff of the suit, sued Nuri Mian and Bansidhar, the two defendants in the suit, to establish his right of pre-emption. His case is that Bansidhar, defendant No. 2, sold his shares in three villages, namely, Maritand, Tola Ghyspur and Tola Pandaypur for Rs. 4,500 to Nuri Mian, defendant No. 1, on the 18th September 1912. In the plaint he alleged that Rs. 7,000 mentioned in the sale-deed as the consideration money is a fictitious amount and that he, on hearing from one Garju, one of his witnesses, for the first time on the 20th September 1912, performed the required ceremonies known as talab muasabat and talab istishhad. The defendant No. 1 contested the suit and traversed the allegations made in the plaint. The Subordinate Judge dismissed the plaintiff's suit, upon which the plaintiff appealed to the District Judge who allowed the appeal by decreeing the plaintiff's suit. The lower, Appellate Court further held that the, consideration money, namely, Rs. 7,000 mentioned in the deed of sale was the consideration money for the sale of the, shares although it included a sum of Rs. 500 as arrears of rent from the tenants, and it was directed that the amount at which the plaintiff might redeem was Rs. 7,000, and it, is this judgment which is the subject of the present appeal.
3. Before I refer to the grounds urged before us it is necessary to state that there was a partition proceeding with respect to the mahal wherein the shares were situated, but the partition was not complete on the date of sale. The partition was completed on the 22nd September 1913, and the sale of the shares took place on the 16th September 1912, which means that the mahal remained joint for a little over a year before the sale was made.
4. The grounds urged on behalf of the appellant are:
1. That having regard to the fact that the plaintiff alleged to have offered to pay Rs. 4,500, and not Rs. 7,000 as stated in the deed of sale or the actual price to be found by the Court, the plaintiff had no right of pre-emption.
2. That the butwara proceedings having been practically completed before the sale in question, the plaintiff had no right of pre-emption.
3. That the first Court having found the value of the shares to be Rs. 6,000, the District Judge had no jurisdiction to try the question on appeal inasmuch as the appeal lay to the' High Court.
5. It has been found that the plaintiff and defendant No. 2 were co-sharers and the plaintiff on hearing the news of the sale performed the required ceremony and that the value of the shares was Rs. 7,000, which included a sum of Rs. 500 as arrears of rent due from the tenants. On the above finding there can be no question that the plaintiff is a shafee and that if he on hearing the first news of the sale performed the ceremonies in the ways required by the Muhammadan Law he is entitled to preempt.
Decision on the first ground.
6. There are three methods to claim shufa. The first of these methods is called talab muasabat. This has to be done by making an immediate demand of purchase on hearing the news of the sale The second is what is called talab istishhad which means an affirmation of the first method and asking people to witness, and the third is by litigation.
7. In the present appeal we are concerned only with the first method, namely, talab muasabat. The contention on behalf of the appellant is that the ceremony of talab muasabat was not performed by the plaintiff in the manner required by law. The defect pointed out is that in the performance of the ceremony the plaintiff offered to pay Rs. 4,500 as the price of the share. He should have offered Rs. 7,000 which was the sum mentioned in the deed of sale. The question is as to whether it is necessary to mention any sum in the performance of the talab muasabat.
8. While dealing with the question the author of the Hedaya says that it is not material in what words the claim is preferred and it is sufficient that the words used should imply a claim. If a person says 'I have claimed my shufa' or 'I shall claim my shufa' or I do claim my shufa', he has performed the ceremony as required by law.
9. In Ameer Ali's Muhammadan Law (page 23, Volume 1, 4th Edition) there is the following passage: 'A person who intends to advance a claim based on the right of pre-emption in respect of property which has been sold to another must, immediately on receiving information of the sale, express in explicit terms his intention to claim the property. The intention must be formulated in the shape of a demand. No express formula is necessary so long as the assertion of the right, or what is called a demand, is expressed in unequivocal language.' This learned author relies on the Hedaya.
10. Another authority is that of Durrul Mukhtar This book is the well-known commentary of Tanwirul Absar. It has been translated into English by Babu Brij Mohan Dayal of Lucknow. This book is considered as an authority on Muhammadan Law. At page 386 of this book there is this passage 'Demand should be made by using an expression from which demand may be clearly understood '
11. In Tyabji's principles of the Muhammadan Law it is stated that the pre-emptor should assert his claim immediately on getting information of a sale.
12. From the above authorities it is clear that in the performance of this ceremony what is necessary is an expression by the pre-emptor in clear and explicit terms that he demands to make the purchase and it is not necessary that he should, at the time of the performance of the ceremony, make any mention of the price.
13. Wilson in his Digest of Anglo-Muhammadan Law (at page 418, 4th Edition) says: 'It is, not necessary that the pre-emptor should tender the price at the time of making his formal claim. It is sufficient that he should then state his willingness to pay either the price named in the sale-deed, or, if he suspects the price named as fictitious, such' a sum as a Court may award.'
14. There is no authority in Muhammadan Law that if the pre-emptor fails to state that he is willing to pay the price named in the sale-deed or such a sum as a Court may award he loses the right of pre-emption. The passage quoted from Wilson's Digest has been relied upon by the appellant. This learned author has only explained the intention of a pre-emptor. The pre-emptor in making the demand tacitly expresses his willingness to pay either the price mentioned in the deed or such a sum as a Court may award.
15. On a consideration of the various commentaries on Muhammadan Law I do not think that mention of any sum of money is a necessary condition in the due performance of the demand.
16. Reverting to the facts of the case 1 find that the first information of the sale, that the plaintiff got, was from one Garju, a witness examined on his behalf. That information was that defendant No. 2 had sold his share of Rs. 4,500 and had received a further sum of Rs. 2,500 from his vendee as arrears of rent due from the tenants. On receiving this information the plaintiff performed the ceremony of demand and in the performance thereof, although it was not necessary, he mentioned the sum of Rs. 4,500 as the price he was willing to pay for the purchase. The plaintiff believed his informant and said he would pay Rs. 4,000 for the purchase. There can be no doubt that there is no right of pre-emption against conveying the right of realisation of the arrears of rent from the tenants. In the plaint also he claimed to have purchased the property for Rs. 4,500 and further says that he is willing to pay any consideration that may be found by the Court.
17. For the above reasons, I am of opinion that the talab muasabat was duly performed. This ground, therefore, fails.
Decision on the 2nd Ground.
18. Butwara proceedings are completed on the service of notice as required by Section 94 of the Estates Partition Act. The sale in question having taken place more than a year before the partition was complete, the pending butwara proceedings were no bar to the claim. The sale in question took place when the estate was joint and it being joint, the plaintiff being a co-sharer in the joint estate was fully entitled to claim his right of pre-emption. This ground also fails.
Decision on the 3rd Ground.
19. It is contended that when the Subordinate Judge found that the value of the shares was over Rs. 6,000, the District Judge has no jurisdiction to try the appeal and he should have stayed his hands and directed the appellant to prefer his appeal to the High Court. In this connection reliance is placed on the case of Rajlakshmi, Dasee v. Katyayani Dasee 12 Ind. Cas. 464; 38 C. 639 at pp. 667, 668.. I must observe here that this, objection was not taken before the lower Appellate Court, nor does it find a place in the memorandum of appeal to this Court. Section 11 of the Suits Valuation Act (VII of 1887) provides that such an objection, if not taken in the memorandum of appeal to the Appellate Court, cannot be taken at all.
20. Under Section 21 of the Civil Courts Act (XII of 1887) it is provided that an appeal should lie to the District Judge where the value of the original suit, in which the decree was made, did not exceed Rs. 5,000. The plaint shows that the suit was valued for Rs. 4,500 and, therefore, the appeal lay to the District Judge. On behalf of the appellant it is conceded that the appeal no doubt lay to the District Judge, but the District Judge on finding the value of the shares to be more than Rs. 5,000 should not have recorded any judgment but should have directed the appellant to prefer his appeal to the High Court. It is for this purpose that the authority reported as Rajalakshmi Dasee v. Katyayani Dasee 12 Ind. Cas. 464; 38 C. 639 at pp. 667, 668. is relied upon. But the facts of that reported case are quite distinguishable from the facts of the present case. In the reported case it was found that the suit was intentionally undervalued and it was further found that the value of the property in the reported case was over a lac of rupees but it was grossly undervalued at Rs. 2,100. In the present case, however, there was no intentional under valuation. The plaintiff's informant had told him that the shares were sold for Rs. 4,500. He honestly believed that the value of the shares was Rs. 4,500. I am of opinion that this reported case does not help the appellant. This ground also fails. The appeal is dismissed with costs.
21. I agree for the reasons given by my learned brother that this appeal must be dismissed. In the second and third grounds urged in support of the appeal there is no substance.
22. The first ground is based upon a misconception of Sir Roland Wilson's Commentary. It is clear from the He daya that it was recognised that the qazi must always be called in to settle the price to be paid. Sir Roland Wilson cannot be understood to mean more than that on appearance before the qazi, the shafee must be willing to pay the price fixed by the qazi.