1. ' This appeal has arisen out of a suit for pre-emption. Appellant seeks to enforce his right of pre- emption in agricultural land on the grounds of vicinage and participator of appendages and immunities of agricultural land bearing S. Nos. 317 and 326 in Deh Saida Bola, Taluka Gambat, District Khairpur. These survey numbers are adjoining Survey Nos. 330, 318/4-21 and 325 and which were owned by respondents 2 to 4. According to the plaint the said respondents Nos. 2 to 4 sold these survey numbers to respondent No, 1 for a consideration of Rs, 80,000 under a registered deed dated 20-3-1981 without the consent and knowledge of the appellant. This gave rise to the dissatisfaction which has resulted in the litigation between the parties.
2. ' As the right involved in these proceedings is a "feeble right" and is dependent upon performance of certain formalities or rituals it is necessary to reproduce in his own words the steps taken by the appellant in order to show now far he has followed the course prescribed to entitle him to successfully enforce this "feeble right" against the respondents. Paras. 8, 9 of the plaint are crucial, it is better to reproduce them in extenso "8. That on 20-3-1981, the plaintiff came to know about the above-said sale by the defendants Nos.
3. 2 to 4 in favour of the defendant No, I and on getting the said information, the plaintiff immediately there and then made the first demand of Talab Muwasibat and said that he was the pre-emptor of the above said land and that he will purchase the same as his land is adjacent to the abovesaid land sold by the defendants Nos. 2 to 4 to the defendant No, 1 and that the same was also being watered by the same Kassi and that he had a right of way also.
9. That immediately thereafter, on the same day the plaintiff took the amount of Rs, 80,000 with himself and also took two witnesses with himself and narrated the above facts to them and they all went to the defendant No, 1 in his village who met them in his Utak. The plaintiff after making reference to the first demand of Talab-e7 Mawasibat made the second demand of Talab-e- Ishhad before the defendant No, 1 in presence of the witnesses and told the defendant No, 1 that as the plaintiff was the pre-emptor of the S. Nos. 318, 325 and 330, purchased by him from the defendants Nos. 2 to 4 for the consideration of Rs, 80.000 therefore he will purchase the same and that the defendant No, 1 should return (sell) the land to the plaintiff and take money from him, as his land is adjacent to the abovesaid land and the same is being watered by the same Kassi and he had also right of way through the same. But the defendant No, 1 refused to accept the money from the plaintiff and refused to return the land to the plaintiff, on the basis of pre-emption. The plaintiff asked the witnesses to be the witnesses of the abovesaid demands."
4. ' The defendants contested the claim in suit. All the 4 respondents filed a joint written statement.
5. Paras. 7, 8, 9 and 10 of the written statement are directly related to the point around which the controversy has centred and are reproduced below for ready reference :- "Paragraph 7. It is admitted that defendants Nos. 2 to 4 have sold out the property in suit to defendant No, 1 but it is vehemently denied that it was a secret transaction. In fact the sale took place within the knowledge of the plaintiff and he was also consulted an various ancillary matters at the time of affecting sale.
(8) Denied most emphatically as being palpably false and incorrect. No such demand as alleged has ever been made by the plaintiff nor he has ever demonstrated his intention to purchase the S. Nos. As an afterthought and with the sold objective to harass and inconvenience the defendant the plaintiff has filed the present suit.
9. Denied emphatically that the plaintiff did make any second demand before witnesses. Besides plaintiff never talk of purchasing the said property and in fact be could not do it because the right of preemption was not available to him as defendants Nos. 2 to 4 profess Shia faith and law of pre- emption is not applicable on the sales made by them.
10. Denied vehemently. As already stated in the foregoing paragraphs the sellers are Shia by faith and the law of pre-emption is not applicable to them. It was only customary that they had offered the land to the plaintiff prior to sale to the defendant No, 1 otherwise in law they are not bound to sell it to the plaintiff in furtherance of any right of pre-emption."
6. ' The learned Senior Civil Judge, Gambat framed the following issues : "(1) Whether the suit is not maintainable according to law ?
(2) Whether the plaintiff is pre-emptor of the suit land ?
(3) Whether the plaintiff made proper demands ?
(4) Whether the vendors profess Shia faith and law of pre-emption is not applicable on the sale/purchase in question ?
(5) What should the decree be ?
7. ' Evidence was recorded. Both sides examined witnesses in support of their case. Appellant/plaintiff was examined as P. W. 1 and in support he examined Master Abdul Rehman P. W. 2, Moula Bux P. W.
8. 3, and Muhammad Khan P. W.
4. The defendant No, 1 who is the purchaser of the land examined himself and two witnesses. One of these two P. W. 3 Serai Muhammad Ali represented the sellers group. He stated that the sellers were Shias and as such were not obliged to offer the land to the plaintiff. The Shia law does not recognize pre-emption right on the ground of vicinage. In other words there is no "Shifa Jar" under the Shia law. All the three defence witnesses denied the plaintiff's assertion that Talab-e- Mawasibat or Talab-e-Ishhad was made by the plaintiff or for that matter the plaintiff had ever shown any interest in the land although he had full knowledge of sale even before the transaction was finalised in favour of defendant No, 1.
9. ' The learned Senior Civil Judge after hearing the evidence came to the conclusion that the suit was maintainable. Thus Issue No, 1 was decided affirmatively. Issue No, 2 was also decided affirmatively and it was held that the chunks of land are adjoining each other and are irrigated by a common watercourse. It was held "that the plaintiff is the pre-emptor of the suit land". Issue No, 4 was disposed of by the learned Judge in the following manner : "There is word against the word and this issue remains unproved for want of sufficient cause.
10. Findings accordingly."
11. Issue No, 3 related to the demands. It is well known that a preemptor in order to successfully press his pre-emption right must prove that he had discharged the initial burden by making the first mandatory Talab known as Talab-e-Mawasibat and the second obligatory Talab known as Talab- e-Ishbad.
12. ' On the first Talab the findings of the learned Judge are in favour of the plaintiff and the learned Judge has recorded these findings in clear terms. Para. 9 of his judgment runs as under :- "9. Plaintiff has examined P. W, Abdul Rehman who has deposed that he told plaintiff about the transaction in question who immediately expressed that he being pre-emptor of the suit land will purchase the suit land. He has stated that plaintiff immediately alongwith witnesses went to defendant No,
1. Thus it is clear that P. W. Abdul Rehman has fully supported the version of plaintiff so so far first demand. i,e, Talab-e-Mawasibat is concerned. The burden rested on plaintiff to prove that two demands i,e, Talab-e-Mawasibat and Talab-e-Ishhad were made by him according to law in presence of the witnesses. As regards Talabs under Muhammadan law, what is required is that the pre-emptor must assert his claim immediately on getting information of the sale. This is called as Talab-eMawasibat. So in the present case it stands established that Talab-eMawasibat was made by plaintiff according to law."
13. ' Having crossed all the hurdles in his way the plaintiff bumped against a highly technical obstruction which proved to be fatal and has resulted in the dismissal of the suit obliging the plaintiff to file this appeal. The learned Judge has held that the second essential demand known as Talab-eIshhad was no doubt made by the plaintiff but due to certain lapse in making this demand this second (Talab-e-Ishbad) remained ineffective, and as such plaintiff was not entitled to-the relief claimed in the suit.
14. ' Paras. 11 and 12 are germane to the point involved and as the whole controversy rests around this point it is necessary to focus our attention on this part of the judgment.
15. "11. P. W. Muhammad Khan has deposed that in his presence and P. W. Moula Bux, plaintiff told the defendant No, 1, that P. W. *[Here in italics] ' Abdul Rehman has informed him about the purchase of suit land by defendant No, 1 and he further told him that he was pre-emptor of the suit land and asked him (defendant No, 1) to accept the sale price and transfer the suit land in his favour but defendant refused to do so. P. W.
16. Muhammad Khan has stated that plaintiff Hussain Bux asked them to bear the witness to his demand. This is all the evidence adduced by the plaintiff to prove his second demand, i,e, Talab-e- Ishhad.
17. ' After discussing the evidence in the above para. The learned Judge proceeds to evaluate this evidence and feels that it falls short of the requirement of the law. This is how he tackles the issue in para. 12 of the judgment : "12. The second demand must include a declaration of his having already asserted his claim. It should be made in presence of two witnesses expressly called on to bear witness to the performance of Talabs and also in the presence either of the seller or the buyer of the land sold.
18. None of the witnesses produced by plaintiff has deposed that while making Talab-e-Ishhad express reference to Talab-e-Mawasibat was made. It is well-established law that no person is entitled to the right of pre-emption unless he has declared his intention to assert his right immediately on receiving information of the sale and without any delay has affirmed the intention, referring expressly to the fact that the Talab-e-Mawasibat has already been made. This is called Talab-e-Ishhad which is to be made in presence of two witnesses who were called on to bear the witnesses to the said demand. There is absolutely no evidence that reference was made by plaintiff in presence of witnesses at the time of alleged second demand i,e, Talab-e-Ishhad. Thus the evidence of P. Ws. Moula Bux and Muhammad Khan is not helpful to the case of plaintiff so far, second demand i,e, Talab-e-Ishhad is concerned. No evidence whatsoever has been adduced by the plaintiff to the effect that at the time of making second demand a reference was made to the first demand and the pre-emptor's omission to make such reference is fatal to his claim."
19. I am afraid this is not a correct reading of the evidence. In my opinion such a reference was made and the plaintiff while making the Talab-e-Ishhad before the defendant No, 1 in presence of the two witnesses i,e, Muhammad Khan and Moula Bux had made a mention of the first Talab having been made by him. This is what is stated by him in his examination-in-chief and he has not been contradicted on this point. Portion of the statement of plaintiff is reproduced and the relevant part is underlined* by me : ' Abdul Rehman told me that he had gone to the lands where he saw defendant told him that they have purchased the suit land for consideration of Rs, 80,000 from defendants Nos. 2 to 4. On this I expressed before A. Rehman that 1 being the pre-emptor of the suit land has right to purchase it and I will purchase it from the defendants. Immediately along with witnesses Muhammad Khan and Moula Bux alongwith the amount went to the defendant No, 1 and meet with him, in presence of witnesses I asked the defendant No, I that I being pre-emptor of the suit land has right to purchase it and I expressed before him in the morning. A. Rehman told me about the transaction of suit land and I expressed before him that I being pre-emptor of the suit land has pre-emption right to purchase it. I asked the defendant No, 1, to transfer the suit land to me and accept the amount of Rs, 80,000 for the same, as I being pre-emptor of the suit land, I asked the witnesses to be the witnesses of my demand and in presence of them I counted the money."
20. ' Note the sentence "and I expressed before him that in the morning A. Rehman told me about the transaction of suit land and I expressed before him (means Abdul Rehman) that I being pre- emptor of the suit land has pre-emption right to purchase it."
21. ' The plaintiff is obviously narrating the event of the morning and is repeating what he had said to Abdul Rehman in the morning. It is significant that in the earlier sentence there is an assertion of the right when the plaintiff is talking face to face with the defendant while the same sentence is being repeated in the latter part. But this is mere reproduction of what was said to Abdul Rehman in the morning. The word "him" in the latter part stands for Abdul Rehman and not the defendant.
22. This is referable to the Talab-e-Mawasibat.
23. ' This position is in harmony with the text in the plaint. Read para. 9 of the plaint and mark the sentence in capital letters.
"THE PLAINTIFF AFTER MAKING REFERENCE TO THE FIRST DEMAND OF TALAB-E-MAWASIBAT"
24. ' It appears to me that the above material escaped notice of the learned Judge or may be that under the glare of the case-law on the point the factual position was over-shadowed and resulted in adverse findings. I would have closed this appeal in view of my analysis of the facts and the evidence in the case. But as the learned counsel have referred to a few cases, I feel that I should venture to add something more to clear the mist, as far as I can, which hangs in the background on account of the growth of a legal concept starting from 1890 when the Full Bench case was decided by the High Court of Calcutta. Conscious of the limitations and restraints under which I have to survey the legal opinion rendered during the century I proceed to examine the case-law on the subject.
25. Reference may be made to the recent decision of our own Courts in which my brothers have in plain and unambiguous terms reiterated that if an express mention is not made of the 1st demand "Talab-e-Mawasibat",1 at the time of making the second demand, the defect would be so fatal In an unreported judgment in First Appeal No, 1/80 Ajmal Mian, J. To defeat the claim of pre-emption itself dismissed the appeal on the sole ground "that omission to make reference to first demand at the time of making the second demand is fatal to th claim of pre-emption. In another case reported as Jadal v. Abdul Majeed (1), Channa, J. Also held the same view and expressed himself as follows :- "So far as the second occasion on which Talab-e-Ishhad is said to have been made, though it was made on the very same day on which respondent No, 1 came to know of the sale of the property in question, and two witnesses were taken by him to expressly witness
(1) PLD 1978 Kar. 732 the demand, no reference at that time was made to the Talab-eMawasibat earlier made by him in his house. Thus an essential requirement of the Talable-Ishhacl was not fulfilled in the instant case. . . . Q J . . .
26. ' I am therefore of the view that the respondent No, 1 has failed to establish his right of pre-emption in respect of the house in dispute inasmuch as the Talab-e-Ishhad was not duly made as requited by law. I would accordingly, allow this appeal with costs, set aside the judgment and the decree of the learned 1st Appellate Court and restore the judgment and the decree of the learned Civil Judge."
27. ' In this case reliance was placed on a case reported as Muhammad Luqman v. Ameer All (I) and in order to keep the continuity to trace the origin of this view I would also quote from this Dacca case.
28. This is also a Single Judge case and the point involved was the same. Quoting Mullah on Principles of Muhammaden law the learned Judge concluded as follows :- "The view expressed above, finds support on a decision of the Calcutta High Court in the case of Rujjub All Chopedar v. Chundi Churn Bhadra and others. In that case a Full Bench of the Calcutta High Court consisting of Petheram, C. J. Princip. Pigot, O`Kinealy and Ghose, JJ. Held that it was necessary that when performing the Talab-e-lshhad the pre-emptor should declare that he had made the Talab-i-Mowasibat. To the same effect is the decision in the case of Mubarak Hussain v.
29. Kaniz Bano and others. In that case a Division Bench of the Allahabad High Court, consisting of Stanley, C. J. And Sur-Kitt, J. Held that expressed reference to Talab-e-Mowasibat is necessary when second demand, namely, Talab-e-Ishhad is made. This question also came for consideration in the case of Sadiq All v. Abdul Baqi Khan and another. The view expressed was that if the pre- emptor in making the second demand failed to call the attention of the witnesses to the fact that he had already made the first demand, the second demand was not valid. A Division Bench of this Court consisting of Amin Ahmed and Chowdhury, JJ. As their Lordships then were, held in the case of Nazir Ahmed and others v. Muhammad Sheir All and another that inasmuch. As at the time of making the second demand, that is Talab-e-Ishhad before witnesses, no reference was made that the pre-emptor had already made the first demand of Talab-e-Mowasibat, the second demand was not made in accordance with law, and the pre-emptor's omission to make such reference was fatal to his claim.
30. ' In the present case the plaintiffs have neither claimed nor adduced evidence to the effect that at the time of making the second demand a reference was made to the first demand. That being so, I am of opinion that the plaintiffs are not entitled to claim pre-emption and the learned Courts below erred in law in not directing their attention to this question."
31. ' It may be noted that in all the three cases quoted above the learned Judges have based their findings not on reasonings but have pitched their authority on the precedents quoted in the judgments referred to above. As such it is PLD 1969 Dacca 64 ' necessary to investigate whether the view taken in those judgments is inconsistent with the original text relating to this doctrine.
32. ' Before going to the basic case of the Full Bench I would like to make a mention to some other cases also decided by the Allahabad High Court. In Abbasi Begum v. Afzal Hussain (1), two learned Judges of that High Court in a second appeal dealing with this question held as follows :- "It is admitted that when the second demand was made to the vendee no words were used referring to the prior demand which had been made inside the house. This is found by the Judge to be an insufficient compliance with the law. We think that he was right for the reasons set forth in the judgment of the Full Bench of the Calcutta Court in the case of Ruffub Ali Chopedar v. Chundi Chura Bhadra I L R 17 Cal.
543. The decision of that Court is one in which we concur. We are informed that this ruling has been followed in other cases in this Court."
33. ' In another judgment reported in this Volume at page 499 a Single Judge, Aikmanj relying on the above two cases held as follows :- "In my opinion the appeal must succeed. In the case of Nundo Pershad Thakur v. Gopal Thakur I L R 10 Cal. 1008, it was held by Garth, C. J. And Beverley, J. That when a person seeking pre-emption had performed the Talab-e-Mowasibat in the presence of witnesses and as soon as possible on the same day in the presence of the same witnesses demanded his right from the vendor and purchaser, it was unnecessary that he should again state when making his demand that he had declared his right as soon as he heard of the sale, that is, that it was unnecessary for him to make any reference to his immediate demand. The present case is on all fours with that case. But that case was dissented from and overruled by a Full Bench of the Calcutta Court in Rullub Ali v. Chundi Churn Bhadra, I L R 17 Cal. 543, which latter case has been followed by this Court in Akbar Hussain v.
34. Abdul Jalil 1 L R 16 All. 383 and in a recent case Abbasi Begum v. Afzal Husen I L R 20 All.
457. That these latter rulings are correct is, in my opinion, clear from the definition of Talab-e- Ishtishhad given on p. 489 of Baillie's Digest of Mohummadan Law (2nd Edition). By "Talab-e- Ishtihad," says that learned author is meant a person calling upon witnesses to attest his Talab-e- Mowasibat or immediate demand". It appears to me impossible to invoke witnesses to attest the fact that an immediate demand has been made without making some reference to that immediate demand.
35. ' The learned counsel for the respondent argues that that Talab-e-Ishtishhad is merely a rule of evidence according to the Muhammadan Law and is no longer of any validity. Be that as it may, I am bound to follow the decisions of this Court to which I have referred.
36. ' For the above reasons I allow this appeal and, setting aside the decree of the lower appellate Court with costs, restore that of the Court of first instance."
37. ' Before going to the basic case to examine the reasonings in that case I may refer to one more case reported as Mubarak Hussain v. Kaniz Bano (2). In
(1) (1898) 20 All. 457 (2) I L R. 27 All. 163 this short judgment also a Division Bench of that High Court held the view :- "It has so laid down by our brother Aikman in the case of Abid Husen v. Bashir Ahmad I L R 20 All.
38. 499, the headnote to which case runs as follows :-"When in asserting a claim for pre-emption, the making of the Talable-Ishtishhad is required, it is absolutely necessary that at the time cif making this demand reference should be made to the fact of the Talab-e-Mowastibat having been previously made, and this necessity is not removed by the fact that the witnesses to both demands are the same." In his judgment our brother Aikman refers to a Full Bet* ruling of the Calcutta Court in the case of Rullub Ali Chopedar v. Chundi Churn Bhadra I L R 17 Cal. 543, which overruled an earlier judgment . Of that Court in the case of Nundo Pershad Thakur v. Gopal Thakur I L R 10 Cal.
39. 1008. In the latter case it was held that if the witnesses of both demands were the same, it was unnecessary to refer, when making the second demand, to the fact that the first demand had been made. In the Full Bench case it was held that "it is absolutely necessary that at the time of making this demand (i,e, the second demand) reference should be made to the fact that the Talab-e- Mowasibat had been previously made, and this necessity is not removed by the fact that the witnesses to both demands are the same." We can well understand why the law in this respect should be so strict. The second demand is not made for the information of the witnesses,. But for the information of the vendee or vendor, to whom it happens to be made. If the witnesses to both the immediate and second demands be the same, it naturally does seem unnecessary to repeat the same thing to them ; but then at the second demand not only may the same witnesses be present but also a third party, namely, the vendee or vendor must be present, and it is for his information that at the second demand reference is required to be made to the fact that the first and immediate demand had been made. The only authority against this view of the law which has been cited to us is that of Chotu v. Hussain Bakhsh 1893 Weekly Notes 101. To that case our brother Aikman, to whose judgment in the later case we have referred, was a party. In another case Sahibzadi v. Allandiya Khan 1902 Weekly Notes 147 our brother Aikman, with another learned Judge of this Court, was a party to a judgment affirming practically the judgment in the case of Abid Husen v. Bashir Ahmad. So that the weight of authority of this Court is in favour' of the view taken in the last-mentioned case, and the authority of the Calcutta High Court also favours the same view.
40. In view of this preponderance of authority we are not prepared to hold that the view expressed by the lower appellate Court is incorrect. We must therefore, affirming it, dismiss this appeal with costs."
41. ' I may now refer to the basic case which was decided by the Calcutta High Court as early as 1890 and is a converging point for the view that the valuable right of the pre-emptor to have a first option of purchase of the property in which he is either a co-sharer or immediate neighbour should be brushed aside even though he has fully and competently made the Talab-eMowasibat (jumping demand) and has also made Talab e-Ishtishhad by making the demand from the vendor/vendee in the presence of two witnesses, merely because during the second ritual of Talab-e-Ishtishhad he has net made a specific mention of having made the first ritual Talab-e- Mowasibat although admittedly he had competently made Talab-e-Mowasibat.
42. ' To find a judicious rationale in support of this view I have read this Calcutta case again and again.
43. The opinion of this Court in this Full Bench case is anchored not on reason but on a passage from English translation of a Persian translation of Hidayah of Burhanuddin Murghenani an author and commentator of Muslim law of sixth century Hijra (593 H) and Digest of Muhammadan Law by Bailie which itself is primarily a translation of Fatwah-e-Alamgiri. As this case has remained a focal point through the century it is imperative to examine this case in depth. The Full Bench consisted of 5 Judges who were all Englishmen. It is a short judgment. The judgment was rendered on a reference made to the Full Bench to resolve the conflict of opinion by the different benches of that Court. The opinion rendered was as short as it could be and may be quoted in extenso:-It is reported in I L R 17 Cal. 543 : "The question referred for the decision of the Full Bench is, "When the person claiming a right of pre- emption has performed the Talab-e-Mawasibat 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-e-Ishad that he should declare that he has made the Talab-e-Mawasibat, and at the same time should invoke witnesses to attest it ?
44. ' According to Mahomedan law, if the claimant neglects to perform the legal forms necessary to be observed in asserting the right of preemption, his claim is null and void. The ordinary forms are as follows :- He must make an immediate claim or Talab-e-Mawasibat and subsequently an affirmation with witnesses called the Talab-eIshad. The latter consists in the party going upon the lands the right of pre-emption, to which he claims or to the seller or purchaser, and saying that he is a claimant of pre-emption, that he ha's already asserted his claim, and that he continues to do so, and at the same time calling witnesses to the fact of his having made it. One essential portion of these forms is the attesting the immediate demand, and this is not only the view put forward in Baillie's Digest, but also the view expressed in Hamilton's Hedaya and in Macnaghten's Precedents.
45. Moreover, it is the view held by this Court, with the exception of the case of Nundo Pershad Thakur v.
46. Gopal Thakur I L R 10 Cal.
47. 1008. We think the view expressed in that case is not correct, and we answer the question in the affirmative.
48. ' The result, so far as this appeal is concerned is that the appeal will be dismissed with costs."
49. ' It may be pointed out that in this Full Bench opinion reliance has been placed on a passage from translation of Hidayah by Charles Hamilton. Without in the least meaning to run down the labour and efforts of the learned compiler of this work it is worthwhile to quote authoritative information on Hamilton's translation on which the Full Bench case is based and which in its turn has been the basis of decision of all cases that have since been decided. A contemporary author of equal weight and authority namely Baillie in his treatise "Digest of Mohammedan Law" has commented about this work in the following terms :- "The only other work on Mohammedan law, according to the Hanifa Code, which was available at that time to the mere English reader, was Mr. Hamilton's translation of the `Hidayah' of that work Sir William Macnaghton remarked that it is of little utility as a work of reference to indicate the law on any particular point which may be submitted to judicial decision. This may be going too far ; Mr. Hamilton's work being a translation from the Persian of intermediate translation in that language less dependence can be placed upon it than if it had been derived directly from the original in Arabic. Moreover, the English reader may be perplexed by the confusion of test and commentary without the distinction so Carefully marked in the original, and by the frequent references to the opinions of Malik and Shafei, the heads of other sects, who are of no authority with the followers of Abu Hanifa."
50. ' This criticism on Hamilton's translation of Hidayah does not stand uncorroborated. That great jurist Mahmood, J., in his monumental judgment where he recorded a dissenting opinion in a pre- emption case dissenting from all other English colleagues sitting with him on the Full Bench goes deeper to minimise the importance of this work. In Govind Dayal v. Inayatullah the great jurist evaluated this work as follows :- In (1885) 7 All. 775 at page 798 : "In this passage Mittal, J. Referred to the material upon which he based his conclusions and he proceeds to quote passages from those materials. On this point I have to say that those materials appear to me to be in other respects inadequate. They are to be found in the Hidayah, or rather in the translation of Hidayah made by Hamilton about a century ago, under the orders of the Governor, General Warren Hastings. It was not, however, a translation of the original Arabic text, but a Persian translation. For that work gratitude is due to Mr. Hamilton but at the same time I am afraid it has been sometimes source of mistakes by our Courts in the administration of the Muhammadan law."
51. ' As the cases on pre-emption were frequent in those days and the Arabic text of all the original works on the Muslim law was practically inaccessible the learned Judge took it upon himself to translate into Urdu from Arabic all the material on pre-emption in Mohammadan law. He translated Hidayah, Durr-ul-Mukhtar, Sharah-Waqaya, Majmooa-e-Bahrain, Fatawa-e-Qazi Khan, and Aini S.Hahra-e-Qazi. Of these Hidayah and Fatawa-e-Qazi Khan are the works of renowned authors. Others are of latter period and are commentaries of other works. It is not possible for me to enlarge his discussion beyond the field of the present controversy and must contain this discussion within the ,permissible limits by confining myself to the two leading works namely Hidayath and Fatwa-e-Qazi Khan and examine whether there is no escape from the position that a substantive right of pre-emption founded on the Hadith of Holy Prophet (S. A.) should be defeated because the mention of the earlier ritual has not been made at the time of performing another ritual. As the entire case-law has converged on 17 Calcutta the case of Rujjub Chopedar v. Chundi Churn Bhadra which case in its turn is based on the text from Hidayah, I would first deal with Hidayah quoting the relevant passage from Hidayah itself.
52. (The Urdu and English translations are given below) The English translation is from Charles Hamilton.
53. ' The Urdu translation is made by Mahmood, J. It was published by Musleh Press, Delhi sometimes in 1897. A copy of this publication is available with the author. ' The relevant passage is as under : "The second mode of claim to Shiffa is termed the Talb Takreer wa Ishhad, or claim by affirmation and taking to witness, and this also is requisite, because evidence is wanted in order to establish proof before the Magistrate ; and it is probable that the claimant cannot have witnesses to the Talb Mawasibat as that is expressed immediately on intimation being received of the sale. It is therefore necessary afterwards to make the Talab-Ishhad wa Takreer, which is done by the Shafee taking some person to witness,-either against the settler, if the ground sold be still in his possession, or against the purchaser, or upon the spot regarding which the dispute has arisen ; and upon the Sliafee thus taking some person to witness, his right of Shufa is fully established and confirmed. The reason of this is, that both the buyer and seller are opponents to the Shafee in regard to his claim of Shufa ; the one being the possessor, and the other the proprietor of the ground ; evidence on the ground itself is also valid ; because it is that to which the right relates. If the seller have delivered over the ground to the buyer, the taking evidence against him is not sufficient, he being no longer an opponent for having neither the possession nor the property, he is as a stranger. The manner of claim by affirmation and taking to witness is, the claimant saying "Such a person has bought such a house, of which I am the Shafee, I have already claimed by privilege of Shafa, and now again claim it : be therefore witness thereof." (It is reported from Abu Yousaf that it is requisite the name of the thing sold, and its particular boundaries, be specified ; because a claim is not valid unless the thing demanded be precisely known." {{URDU TEXT}} ' Carefully read the words "do not indicate that the author is doing anything more than recommending how this Talati should be made. It does not follow that the pre-emptor should literally use these very words and expressions and that the Talab should be rendered dead or meaningless if all the contents of this recommendatory rather suggestive text was not literally adopted/repeated by the pre-emptor who may be a man of letters or may be a mere labourer or a cultivator not fully articulate in eloquence but nevertheless fully communicative of his anxiety and urge to press his demand for requiring the property which he had a right to claim according to the Shariah. The commentators of Shariah have been careful enough to expressly point out whenever the lapse would result as a frustrating factor to defeat a right. For instance the right in pre-emption is contingent upon Talab-e-Mawasibat "jumping demand" by the pre-emptor. The authors have in categorical terms, and on authority of the Hadith given out that if the demand is not made instantaneously the right is lost. They have even gone to the extent of commenting upon whether a person offering Nafil prayers should continue or should first complete his demand, or if the information is conveyed to him in a letter he should finish this letter or jump out to proclaim that he is a Shafi before reaching the end of the text of the letter. Now, if these authors are in the habit of making such close study and are so precise and accurate in mentioning the consequence of failure to do so then would it be possible to hold that omission to make a mention of the earlier demand during the second demand should defeat this right although Hidayah itself does not say so shall we assume that the author of Hidayah could have overlooked to mention the consequences of the pre-emptor not mentioning the first Talab ? And if the language is not capable of a rigid negative interpretation would it not amount to sacrifice a right over a ritual of totally significant character when it causes no prejudice to anyone nor by any reasoning can be termed to be a part of pith and substance of the right itself. May be that in some cases the vendor or the vendee may not even question the fact that Talab-eMawasibat was actually made. Even in cases where it is contested the vendee would have ample opportunity to raise this plea at the time of the third demand i,e, the Talab-e-Tamlook when the parties would be before the Qazi to assert and rebut their respective contentions.
54. ' The other work relied upon in the Calcutta case is commentary by Baillie. Actually it is an English translation of Fatawa-e-Alamgiri. In Baillie's own words "The present work is founded chiefly on the great Digest of Muhammedan Law prepared by command of the Emperor Aurangzeb Alamgir and known as the Fatwa-e-Alamgiri. It is sufficient to notice in this place that the Fatwa-e-Alamgiri is a collection of the most authoritative Fatwah, or expositions of law, on all points that had been decided up to the time of its preparation."
55. Now a Fatwah is. An enunciation of the principle or doctrine of Shariah in a given situation, sometimes in presence of both parties but usually in the absence of one and at the request of another party to a dispute. A Mufti or Faqih who may be an intellectual giant of the calibre of Abu Hanifa or even a Pesh Imam of a local Mosque answers the question according to his own standard and level of understanding. There is no appeal against this opinion. Another independent opinion may however be obtained which again would depend on the ubderstanding and individual attributes of the individual concerned. Therefore, Fatwah is something different from a judgment rendered by a Court as we know it. A great Judge of our times Mr. Justice Munir in his book from "Jinnah to Zia" opined as follows :- "The law is best explained when it is applied to the facts of a concrete case to produce an equitable decision but these Imams held no official positions but were expounding law in the abstract ; they were working in vacuum. Thus while these Imams were engaged in pronouncing the law in the abstract, Muslim armies were engaged in conquering the world."
56. ' With great respect to the. Learned scholar it is difficult to subscribe to the view expressed by him in the above passage, but this opinion is being quoted only to highlight the distinction between a Fatwa and a judgment of the Courts in the present system.
57. I have already produced the Urdu translation of the Hidayah and have endeavoured to show that from a plain reading of the phrase in Hidayah it cannot be spelt out that omission to mention the Talab-eMawasibat or failure to quote the survey numbers or failure to expressly mention the exact location of the property or failure to address the witnesses in a particular form would render the demand ineffective. Indeed there is weighty opinion to suggest that even the presence of witnesses is not necessary. And we know it well that particulars of the property involved are seldom mentioned although the text lays more emphasis on this than on the mentioning of Talab-e- Mawasibat. These controversies fall beyond the scope of the present discussion and I need not involve myself in those. Reverting to the point I would now refer to Fatwa-eQazi Khan (592 Hijra).
58. Fatwah-e-Qazi Khan is a contemporary work of Hidayah and is acknowledged to be the work of great weight and authority. There are English translations by Al-Haaj Mohammadullah Jang but I would prefer to quote the Urdu translation rendered by Mr. Justice Mehmood, alongwith the original Arabic text. This book was published by Muslehul-Mutabel, Delhi in 1897 and a copy is available with the author : {{URDU TEXT}} It will be seen that the learned author like Hidayah has suggested how the Talab-e-Ishhad should be made. It is significant that in this text the author does not mention that the Talab-e-Ishhad should specifically mention the Talab-e-Mawasibat. On the other hand emphasis is laid on mentioning full details of the property and the category of the right which is being invoked by the pre-emptor. In every day practice suits are decreed even if the locational details are not mentioned and the nature of the right of Shafi at the time of Talab-e-Ishhad is not stated.
59. ' All the books written and published on Mohammadan law in this subcontinent; whether it is Mohammadan law by such distinguished authors as Ameer Ali and Tayabji or commentaries on Muhammadan Law by such scholars as D. F. Mullah and Saxena have leaned on the case-law for their opinions. While reading these texts one gasps for the ventilating breeze from original sources. I would only quote that renowned author Ameer Ali. Dealing with the Talab-e-Ishhad the learned author comments as under :- ' The Courts in India have held that at the time of making this second demand the pre-emptor should distinctly state that be has already made the Talab-e-Mawasibat."
60. And for this opinion he relies on the case of Rujjub Ali Chopedar v. Chundi Churn Bhadra and the case of Abbasi Begum discussed by me earlier.
61. ' I am not at liberty to interpret the sayings of the Holy Prophet (S. A.) in a sense other than that adopted by the recognized authorities on Muhammadan jurisprudence. But I will be loathe to toe the line unless such a saying exists or any such saying has been interpreted by a recognized authority. To the best of my knowledge there is no saying on Talab-e-Ishhad although there is one on Talab-e-Mawasibat which has been quoted by Saxena in his book Muslim law : "The right of Shuffa is established in him who prefers the claim without delay."
62. So far as Talab-e-Ishhad is concerned it is in the nature of a notice to the defendant in the modern sense. And that is the reason why the Talab itself becomes unnecessary if the vendee happens to be present at the time when the Talab-e-Mawasibat is made.
63. ' In this view of the matter I cannot see how a substantive right conferred upon a "Shafi" by the Prophet (S. A.) can be killed unless there is another Hadith to subject this right to further burdens.
64. And if it is true that there is no saying of the Holy Prophet (S. A.) in support of Talab-e-Ishhad then the question of its interpretation does not arise. In such a situation different commentators would, according to the exigencies of the situation and the social order to which they belong be free to suggest how the Talab-e-Ishhad which is nothing but notice to the vendor/vendee following Talab-e-Mawasibat and proceeding Talab-e-Tamalluk should be made. And this is the reason why the language used by the two original authors-Hidaya and Qazi Khan not only varies but Qazi Khan does not even mention of the first demand during the second.
65. ' These are the old works. Commanding highest respect and may be called the earliest sources.
66. It should not be overlooked that times have changed, means of communications have improved and things which were supposed to be essential at that time are completely rendered meaningless in the present age. Therefore, the concept and methodology of making the Talab particularly Talab-e-Ishhad and Talab-e-Tamalluk should and have actually undergone a complete metamorphosis. ' What was done in those days by marching the two witnesses and reaching either to the other steps of a vendor o vendee whoever happened to be nearer and repeat the ritual by repeating certain phrases and then turning to the two witnesses and addressing them have now become absolete and meaningless.
67. ' In this connection it is also important to codify the Mohammedan law and "Majallah" was compiled and published to be followed in all Courts. The relevant section in the "Majallah" is as follows :- {{URDU TEXT}} ' The latest is the draft of law of pre-emption prepared by the Council of Islamic Ideology which in course of time may appear on the Statute Book. The relevant sections are reproduced below :- "S. 13(3). Where a pre-emptor has made Talab-Mawasibat under clause (2), he shall immediately thereafter as soon as possible but not later than two weeks from the date of notice under Article 34 or knowledge whichever may be earlier, make Talab-e-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due to the vendee confirming his intention to exercise the right of pre-emption."
68. Neither in the Majallah nor in our own Draft of the law there is such a requirement that the Talab-e- Ishhad should mention the Talab-e-Mawa J sibat and if not done so then claim should be dismissed.
69. ' To sum up the discussion the following points are made out :-
(1) That the right of Shufa is not one of those rights which are men tioned in the Holy Qur'an. The right is created in a Shafi by Hadit of the Holy Prophet (S. A.) and has become a part of Islamic jurisprudence.
(2) For enforcing of this right a person claiming Shufa has to make three demands or Talabs (a)
70. Talab-e-Mawasibat which is based on the Hadith of the Holy Prophet (S. A.), (b) T al ab - e -Taqeer also called Talab-e-Ishhad and (c) Talab-e-Tamalluk or Talab-e-Khusamat adjudication of the right before a Qazi. This Talab is now replaced by the litigation in Court. So far as the second Talab- e-Taqeer I concerned, it is in nature of notice to the vendor or vendee as the case may be; the Shaffi communicating his intention to claim the right and putting his adversary on notice that if the right is no conceded and the property is not re-transferred to him, he would enforce this right through a Court or a Qazi. The mode and procedural details of making this Talab were formulated by different commentators of Muhammedan law in the early times and suggestion language was prescribed by different commentators. There has been difference of opinion whether this demand should be addressed I presence of witnesses or without any witnesses, whether the demand should be made to the vendor or vendee or to whoever is nearer, what words should be used by the Shafi etc., etc. Suffice it to say that there is no Hadith regarding this demand and the details of making the demand have been worked out by the different authors at different times according to their own attributes and surroundings in which they lived.
(3) As far the mention of the first Talab i. e. Talab-e-Mawasibat during the second Talab i. e. Talab- e-Taqreer is concerned, there is no Hadith of the Holy Prophet (S. A.) to impart it a mandatory effect. The idea cropped up later on when commentators attempted to prescribe details of how this demand should be made. Two commentators of the earliest times worth mentioning are Qazi Khan the author of Fatwah-e-Qazi Khan and Burhanuddin Murgbanani the author of Hidayah. Qazi Khan does not at all make a reference to the Talab-e-Mawasibat in his suggestive text. Allama Burhanuddin Murghanani in his work Hidayah does make a reference to the first Talab when the second Talab should be made. But by no stretch of imagination it can be said that the suggestive text was intended to be a compulsive force behind the demand itself or the suggestion in the text was a mandatory element to sustain the demand. The author of Hidayah himself does not prescribe any adverse consequences for the Shafi if the text suggested by him is not adopted verbatim or any part of suggestion or recommendatory text is left out.
(4) The mass of the case-law accumulated during the century for non-suiting the litigant if the mention of Talab-e-Mawasibat is not made during the Talab-e-Tacireer is based on the Calcutta case of Rajjub Ali Chopedar mentioned earlier. The judgment in this case adopts the text of translations of Hidayah by Charles Hamilton and translations of Fatawah-e-Alamgiri by Baillie as its authority. None of the two works claim sanctity of compulsive force or the authority of any Hadith or even inference from any other provision mandatory in nature.
(5) The Majallah Ahkam codified under the orders of the Turkish Sultan in 1293 Hijri which ranks at least at par if not higher that Fatwa-e-Alamgiri, does not require that Talab-e-Mawasibat should be expressly mentioned at the time of Talab-e-Taqreer.
(6) The thinking of the Council of Islamic Ideology is reflected in the proposed Draft of law of pre- emption. In this also there is no such requirement. Indeed the whole concept of Talab-e-Taqreer has changed in the proposed Draft of law of pre-emption.
71. For the aforesaid reasons in my humble opinion omission on the part of a Shafi to mention Talab- e-Mawasibat at the time of making Talab-eIshhad cannot be fatal to the right which he had acquired under the Muhammadan law and which is a substantive right. This appeal is, therefore, allowed with costs and the judgment and decree of the Court below are set aside. The suit is decreed in terms of the prayer in the plaint.