MUHAMMAD NAZIR KHAN Vs. MAKHDUM BAKHSH

JUDGEMENT

(1.) This appeal arises out of a suit for pre-emption under the Muhammadan law. The court of first instance dismissed the claim. The lower appellate court decreed the claim reversing the court of first instance, and a learned Judge of this Court reversed the lower appellate court and restored the decree of the court of first instance.

(2.) The question is whether the preliminaries required by the Muhammadan law have or have not been performed. The evidence is that the plaintiff pre-emptor immediately upon learning that the sale had taken place said "mera haq shafa hai." This he repeated three times calling upon certain persons who were present to bear witness. On the moment without any delay he took the price of the house and brought it to the vendee and claimed the house, informing him of the fact that he had already made his demand. So far as the question is a question of fact it rested with the lower appellate court to decide that question, and it was not competent for this Court in second appeal to set aside the finding of the lower appellate court. It is said, however, that the words which were used could under no possible circumstances constitute a good first demand under the Muhammadan law. There is no doubt that certain expressions appear in the authorities as illustrations of what constitutes a good demand and the expression used in the present case is not amongst them. It is laid down by Mr. Ameer Ali, at page 606 of volume I of the last edition of his work on Muhammadan law that "no particular formula is necessary so long as the claim is unequivocally asserted." He cites abundant authority for this proposition. There cannot be the least doubt that it was the intention of the plaintiff in the present case to assert and demand his right of pre-emption. It is possible if the words he used were the only evidence in the case that it might be said that the words were equivocal, and did not necessarily show that he was making a demand of pre-emption, but the circumstances and what actually took place at the very moment that he used these words, do in our opinion demonstrate that it was his intention to make the demand not merely to assert that his claim to pre-empt existed, but actually to demand it. He called the attention of witnesses to the fact and he at once went and got the money. All these things happened simultaneously with the uttering of the words, not after the lapse of some time. Our attention has not been called to any authority which lays down that we are not entitled to take into consideration what actually occurred at the moment to enable Us to come to a conclusion whether or not the pre-emptor was demanding preemption when he used the particular expressions. If the Court is entitled to consider these circumstances, then (sic) was quite open to the lower appellate court to arrive at the conclusion at which it did arrive and the question becomes a question of fact binding in second appeal. We think that it is impossible to lay down any hard and fast rule as to what expressions constitute a good first demand : each case must be considered and decided upon its own peculiar facts and circumstances.

(3.) Reliance has been placed on the case of Muhammad Abdul Rahman Khan v. Muhammad Khan (1903)8 A.L.J. 270 In that case the words used were:--"I am preemptor and my right extends to the land. "It was held that these words were not sufficient to constitute a talab-i-mawnsibat. The learned Judges say at page 271, after referring to the Hidaya:-But w e have nothing before us upon which it is possible to say that such a claim has been made or can be inferred." In our opinion this case is clearly distinguishable from the present case. In the present case there are circumstances which occurred at the very moment at which the words were used from which it can reasonably be inferred that the demand was in fact being made. We think that the decision of the lower appellate court ought to be restored.