Skip to content


Lal Mahammad Sarkar Vs. HusaIn Mahammad Saha and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1925Cal655
AppellantLal Mahammad Sarkar
RespondentHusaIn Mahammad Saha and ors.
Cases ReferredAmjud Hossein v. Khurug Sim
Excerpt:
- .....contended on the authority of the case of amjud hossein v. khurug sing (1870) 13 w.r. 299 that the learned district judge was not right in the view that he took upon the facts found by him that the formality which is technically called talab-i-motvasibat was not properly performed. the mahomedan law upon this point, as the learned judge points out, is laid down in the case of jadu lal sahu v. janki koer (1908) 35 cal. 575 and in the case of lajja prasad v. debi prosad (1880) 3. all. 236 which was approved in the calcutta case just cited. it seems that the mahomedan law requires that on the receipt of an information as to the sale the plaintiff must perform the ceremony of talab-i-mowasibat immediately without any loss of time. it has been pointed out by the learned district judge and.....
Judgment:

Chakravarti, J.

1. This is a second appeal by the Plaintiff and, so far as the present appeal is concerned, is limited to a question as to whether the Plaintiff was entitled to recover the land in suit on the basis of a right of pre-emption. The parties are both Mahomedans and according to the Mahomedan law, the law of preemption is binding between them. The Plaintiff's case so far as this question was concerned was that he and Defendants Nos. 3 and 4 were co-sharers of certain jote of 24 bighas in equal shares and that the Plaintiff sought to purchase the 8 as. share of Defendants Nos. 3 and 4 but before the negotiations between himself and the defendants were concluded Defendants Nos. 3 and 4 sold the 8 annas share of the jote belonging to themselves to Defendants Nos. 1 and 2 by a conveyance and that the Plaintiff on hearing of that sale from one Abdulla Kaviraj, his brother-in-law, performed the necessary formalities of the Mahomedan law and he now brings the suit to get possession of the land by enforcing his legal right of pre-emption against Defendants Nos. 3 and 4 and their vendees Defendants Nos. 1 and 2. The learned Munsif who originally tried the suit believed that the Plaintiff had performed the necessary formalities and preliminaries necessary for enforcing the right of pre-emption under the Mahomedan law and therefore he gave a decree to the Plaintiff. There was an appeal against the decree by the Defendants to the District Judge who reversed the judgment and decree of the first Court and dismissed the Plaintiff's suit mainly on the ground that one of the formalities required by the Mahomedan law were not properly performed. The learned vakil who appears for the Appellant contended on the authority of the case of Amjud Hossein v. Khurug Sing (1870) 13 W.R. 299 that the learned District Judge was not right in the view that he took upon the facts found by him that the formality which is technically called talab-i-motvasibat was not properly performed. The Mahomedan law upon this point, as the learned Judge points out, is laid down in the case of Jadu Lal Sahu v. Janki Koer (1908) 35 Cal. 575 and in the case of Lajja Prasad v. Debi Prosad (1880) 3. All. 236 which was approved in the Calcutta case just cited. It seems that the Mahomedan law requires that on the receipt of an information as to the sale the Plaintiff must perform the ceremony of talab-i-mowasibat immediately without any loss of time. It has been pointed out by the learned District Judge and correctly that the Mahomedan law upon this point is very strict. It may appear to be somewhat unreasonable to our mind that the short delay which occurred in the present case should be inexcusable but the law is clear and must be followed. The law has gone so far, in refusing to condone any delay, as to hold that, if a person on receipt of an information of a sale conveyed in a letter instead of performing the necessary formalities required by the Mahomedan law at once, delays to do so until he has furnished the perusal of the letter the right is lost. The question therefore turns upon this fact, namely, whether the information which was received by the Plaintiff was one which he believed to be correct and then whether he delayed in making the demand. It is not denied that if a Plaintiff in a suit for pre-emption receives an information as to the sale which he doubts or has reason to doubt any delay that takes place before he gets an authentic information would be no delay within the meaning of the law. The question which arises in this case is whether the information which the Plaintiff received as to the sale by Defendants Nos. 3 and 4 to defendants Nos. 1 and 2 was true information or was such an information as required corroboration by a further enquiry. It is true in the present case that the Plaintiff's conduct shows that on receipt of the information he went to the vendors who lived close by for either definite information or for confirmation of the information which he had received. The learned District Judge has taken that fact into consideration and after quoting the law as laid down in the case of Jadu Lal Sahu v. Janki Koer (1908) 35 Cal. 575 and bearing in mind the real question in the case the learned Judge says as follows: 'It is not possible to credit that the Plaintiff did not believe that the sale had taken place when he was told by Abdulla Kaviraj. His statement that he asked Defendant No. 3 for confirmation is not supported by any other testimony.' Whether the learned Judge's finding is justified on the evidence or not is a matter which is beyond our jurisdiction to decide, There is no doubt that after considering all the real questions that arose in the case be came to this clear finding, the result of which is that he believed that although the Plaintiff had received the definite and reliable information as to the sale there was a delay before he complied with the necessary formality of talab-i-mowasibat. Consequently it is not disputed by the learned vakil for the Appellant that on this finding the Plaintiff's claim for preemption will become untenable on account of the omission of this formality. The case cited, Amjud Hossein v. Khurug Sim (1870) 13 W.R. 299 does not help us in this case because the question that arises here is as to the effect of the finding of the learned District Judge and what that finding is. We have already indicated that that finding is one which destroyed the efficacy, on the delay of the ceremony of talab-i-mo-wasibat.

2. The result is that we confirm the decree of the learned District Judge and dismiss this appeal with costs.

Greaves, J.

3. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //