B.P Sinha, J.:— This is an appeal by the defendant 1 from the decision of the learned Subordinate Judge of Begusarai, dated the 28th of February, 1947, decreeing the plaintiff's suit for preemption in respect of certain properties, which along with others, were the subject-matter a sale-deed dated the 18th November, 1943, executed by Mt. Jugeshwari Kuar alias Jageshwari Kuar, widow of Ganga Pd. Singh and others.

2. The plaintiff-respondent alleged that on the 2nd of January, 1944, in the forenoon he learnt from Jadunath Singh (P.W 8) that the defendants second and third parties had sold the properties entered in Sen. B of the plaint along with other properties to the first defendant; that the plaintiff at once completed the formality of ‘Talab-e-mowasbat’ in the presence of Jagdambi Prasad Singh (P.W 2) Narain Pd. Singh and several other persons; that thereafter he, along with the said Jagadambi and others, went to mauza Majhaul, Tauzi No. 1130 and completed the formality of Talab-e-Ishteshhad; that from there the plaintiff with his witnesses Jadunath Singh (P.W 8) and Bindeshwari Singh (P.W 8) went to the residence of the first defendant at Matihani on the 3rd of January, 1944 and again performed the ceremony of “Talab-e-Ishtishhad’ and the same day along with those witnesses, the plaintiff went to the place of the defendants second and third parties and there also performed the ceremony of ‘Talab-e-Ishtishhad’; that the plaintiff believed that the first defendant had purchased the properties comprised in the sale deed, aforesaid, for a consideration of Rs. 6,000/- only, but had dishonestly and fraudulently got the amount of Rs. 25,000/- mentioned as the consideration money and, after making a show of payment of Rs. 21,000/- before the Sub-Registrar in cash, took back Rs. 19,000 from the vendors, so that the sum of Rs. 6,000/- only was the real consideration that passed between the parties to the sale deed; that though the parties are Hindus, by the custom and usage of the Province, the plaintiff had a right of pre-emption in respect of some of the properties sold; that the properties comprised in the sale deed are set out in Sec. E of the plaint, out of which the right of pre-emption was claimed only in respect of those set out in Sch. B of the plaint, the price where of the plaintiff assessed at Rs. 4200/-. The plaintiff, therefore, claimed a decree for pre-emption in respect of the disputed properties entered in Sch. B of the plaint. The suit was contested by the first defendant only, and apart from the formal pleas in bar of the suit, he contended that the real purchasers of the property by virtue of the sale deed impugned in this case were Babu Lachhmi Prasad Singh and the other members of his family and that the defendant was a mere name-lender; that the plaintiff and other members of his family had full know ledge and information as regards the negotiation, agreement of sale and execution of the sale deed in favour of Babu Lachhmi Prasad Singh and others in the name of this defendant; that the plaintiff's allegations about his performing the formalities of ‘Talab-e-mowasbat’ and ‘Talab-e-Ishtishhad’ were entirely wrong and unfounded; that the witnesses named in the plaint as the persons in whose presence those ceremonies were performed were the creatures, relatives and friends of the plaintiff; that Rs. 4,000/- had been paid to the defendant second party on the 15th of November, 1943, when the deed of agreement was executed, and the remaining consideration money amounting to Rs. 21,000/- had been paid in cash before the Sub-Registrar at the time of registration; that the plaintiff's allegation that the consideration fixed for the sale was only Rs. 6,000/- was entirely without foundation; that when the negotiation for the sale of the properties owned and possessed by the defendant second party started, the plaintiff was also one of the intending purchasers, but he was out-bid by the actual purchasers, aforesaid, with the result that the deed of agreement and eventually the sale-deed were executed in favour of this defendant as benamidar for the said Babu Lachhmi Prasad Singh and others; that the sale deed covered the entire eight annas five ‘gandas’ and odd share in Tauzi No. 1130 of Mauza Majhaul and not only four annas five ‘gandas’, as wrongly alleged in the plaint; that as a matter of fact the plaintiff and the members of his family were all along aware of the negotiation for sale and of the ultimate execution of the sale deed in question; that it was discovered that after the registration of the sale deed a forgery had been perpetrated in respect of the extent of the share in Tauzi No. 1130, as a result of conspiracy between the plaintiff and the defendants second and third parties; that after the forgery aforesaid had been committed in the Registration Office, the plaintiff got a sale deed executed by the defendant second party in favour of his brother-in-law Singheshwar Singh. It was finally contended that the plaintiff had deliberately under-valued his plaint by falsely alleging that the properties in respect of which the right of pre-emption was sought to be exercised were valued at only Rs. 4,200/- and that as a matter of fact, the properties were worth about Rs. 25,000/-.

3. The defendant's written statement was filed on the 7th of September, 1944. On the 29th of August, 1945, an application for amendment of the plaint was filed by the plaintiff. By this application, the plaintiff sought the addition of one alternative relief, which was allowed by the Court by its order dated the 3rd January, 1947. It should be noted that the plaintiff did not seek to amend any of the material allegations in the plaint, but only obtained an order for the addition of an alternative relief. This order of amendment of the plaint has been seriously challenged by learned counsel for the appellant in this Court as will presently appear. A number of issues were raised at the trial. The learned Subordinate Judge held that there was no defect in frame of the suit, that it was not had for defect of parties that the suit was not barred by estoppel and acquiescence; that the sale deed in question was tampered with by somebody after it had been registered on the 23rd of November, 1943, while the document was in the custody of the Registration Office by substituting “four annas” for “eight annas” so that though eight annas and odd share of Tauzi No. 1130 had actually been conveyed by the sale deed, it was made to appear that only four annas and odd had been so conveyed; that the real purchasers were Lachhmi Singh and others and that the first defendant was a mere ‘farzidar’; that the real consideration for the sale deed was Rs. 25,000/- and not 6,000/- as alleged by the plaintiff; that the ceremonies of ‘Talab-e-mowasbat’ and ‘Talab-e-Ishtishhad had been duly performed by the plaintiff. The Court below, therefore, granted a decree for pre-emption in respect of four items of properties, the most important of which according to the parties, is the first item, namely, eight annas and odd share in Tauzi No. 1130. The Court directed that the plaintiff should deposit in Court, to the credit of the first defendant, a sum of Rs. 20,000/- by the 30th June, 1947, in default of which the suit shall stand dismissed with costs. But if the plaintiff made the deposit aforesaid, his suit would stand decreed with costs against the first defendant. A question has also been raised at the trial, though no specific issue had been raised, as to whether only the principal village Majhaul, had been conveyed, as claimed by the plaintiff, or that village, along with its dependencies, had been conveyed, as claimed by the defendant. The Court below decided this controversy in favour of the plaintiff.

4. The learned Counsel for the appellant has contended: (1) That the order of the Court below allowing the amendment of the plaint by addition of relief 1(a) to the plaint was wrong and highly prejudicial to the defendant, and that at any rate, it was no real amendment of the plaint, and, therefore, the suit was bad, being in respect of only a portion of the properties conveyed by the sale deed in question; (2) that the ceremonies required under the Law of Pre-emption had not been performed at all, and the evidence in support of the same was unreliable and that at any rate, the ceremonies said to have been performed were not in strict compliance with the requirements of the law; (3) that the ‘dakhili’ villages along with the main village Majhaul, had really been conveyed by the deed impugned and that being so, the suit was bad as it was in respect of a portion of the properties conveyed, and (4) that the plaintiff and the real purchasers, as found by the learned Subordinate Judge, being residents of the same village, were really competing for the purchase of the properties, and that the plaintiff was cognizant of all the developments beginning from the negotiation stage and ending with the execution of the sale deed in question.

5. It is not necessary to trace the history of the title to the property in question. It is enough to point out that such a question is foreign to the scope of suit for pre-emption. Furthermore, it was not contested at the bar on either side that the second defendant was the owner of the property which she was competent to convey. Learned counsel for the respondent has not also questioned the finding of the trial Court that the sale price was really 25,000/- rupees, which was actually paid by the real purchasers, namely Lachhmi Prasad Singh and others, who happened to be related to the first defendant. He has also not challenged the finding of the Court below that there was a tampering with the sale deed changing eight annas into four annas in respect of the first item of the property sold. The Court below was not in a position to find out as to who was responsible for this apparent forgery. We have looked into the original document, and there is no doubt that originally the entire eight annas and odd share in that village was comprised in the sale deed and a dishonest attempt was made, apparently in the interest of the vendor and full advantage was taken of that forgery by the plaintiff by taking a sale deed in respect of the alleged remaining four annas share in that village in the name of his wife's brother, Singeheshwar Singh. There is no doubt that the other suit for pre-emption by the plaintiff as against his wife's brother Singeheshwar was a mere conclusive suit, to put up a show that Singheshwar was the real purchaser. It has not been seriously contended that really Singeheshwar was the purchaser of the property and, as will presently appear, the second defendant had nothing to convey as she purported to do by the deed of sale executed in favour of Singheshwar on the 24th of January, 1944. It is convenient, therefore, at this stage to discuss the question of whether only the principal village Majhaul was sold by the deed in question in this suit or the dakhili villages also. It is common ground that apart from the village, there are four ‘dakhili’ village appertaining to this estate bearing tauzi No. 1130. These dakhili villages have different khewat nos. and thana numbers as recited in the judgment of the Court below. The most important thing to remember in this connection is that the description of the property sold under item No. 1 is the whole and entire eight annas five gandas and odd out of sixteen annas takhta, partitioned by Collectorate, bearing tauzi No. 1130 and the Sadar Jama of Rs. 61/12/0 original with dependencies. There are no words of exception in respect of the Dakhili villages. What has been excluded from the operation of the sale, is land let out permanently with one Dinanath Prasad, covered by survey plots 4037 and 4038. Hence on a proper construction of the plain words of the deed, it would appear that the entire estate paying a revenue of Rs. 61/12/- bearing tauzi No. 1130 was conveyed, that is to say, whatever interest the vendor had in that village. But the learned Subordinate Judge has come to the contrary conclusion by remarking that the words ‘asli mai dakhili’ occurring at the end of the paragraph describing the first item of the property sold was only a set formula used by the scribe without attaching any special significance to those words. In my opinion, that is an entirely erroneous way of construing a document of title. The learned Subordinate Judge has further made reference to the agreement (Exhibit A) to show that those critical words were not there. Again, in my opinion, the learned Subordinate Judge has misdirected himself. What was intended to be conveyed and what was actually conveyed must be determined with reference to the words used in the sale deed itself and those words being plain and unambiguous, no extraneous consideration can be admissible to construe those words. The learned Subordinate Judge has also remarked that while describing the Tauzi Number 1130 only thana number 191 and khewat number 18 are given and not the separate thana numbers and khewat numbers of the dakhili villages. But it must be remembered that after giving the description of the principal village the correct tauzi number, Sadar Jama Khewat Number and thana number, the critical words “asli and dakhili” happened to be there. As the dakhili villages are not specifically named in the deed, it was not necessary to give their separate khewat numbers or their separate thana numbers. But as already indicated, there are no words of limitation cutting down the extent of the entire estate represented by tauzi no. 1130. It is manifest that what was intended to be sold was the entire estate with the principal village and its dependencies. Before us no attempt was made by learned Counsel for the respondent to support this finding of the learned Subordinate Judge and, in my opinion, it is perfectly plain that the entire estate was intended to be conveyed including the dakhili villages. As to whether the non-inclusion of the dakhili villages in the schedule to the plaint is or is not fatal to the suit is quite a different matter and will be discussed at its proper place.

6. The real question in controversy between the parties or the merits of the case is whether or not the plaintiff performed the necessary ceremonies in connection with the exercise of his right of pre-emption. The plaintiff has stated in the plaint and in his evidence that for the first time he came to know of the execution of the sale deed on the 2nd of January, 1944, from Jadunath Singh (Plaintiff's witness no. 8) and immediately performed the ceremonies of Talab-e-mowasbat and Talab-e-Ishtishhad at the several properties in question as also at the house of the first defendant and that of the second defendant. Hence, on the plaintiff's case, it was Jadunath who set the ball rolling. (After considering the evidence His Lordship continued:) In my pinion, the evidence of Gajadhar and Satya the defendants to the effect that the plaintiff was competing with Satya's family in the matter of the purchase of the properties in question, is more acceptable than the plaintiff's case and the plaintiff's evidence that he came to know for the first time on the 2nd of January, 1944, about the alleged sale. Hence, it would appear that the whole basis for the plaintiff's claim that he performed the ceremonies of Talab-e-mowasibat and Talab-e-Ishtishhad on the 2nd and 3rd of January, 1944, is without substance.

7. Let us examine the evidence bearing on the performance of the ceremonies. Though the plaint mentions the name of the several witnesses in whose presence the ceremonies aforesaid, were performed, at several places, the exact words used; by the plaintiff while performing those ceremonies are not there. At the trial and even by the defendant's written statement it was brought home to the plaintiff that there were several controversies between the parties as regards the exact extent of the interest conveyed by the deed impugned. It was seriously alleged by the plaintiff that only four annas and odd interest had been conveyed in tauzi no. 1130, the main property in dispute in this case. He also contended that only the main village Majhaul, and not the dakhili villages had been conveyed. Hence, in order to obviate those difficulties every vague formula was evolved and the plaintiff and his witnesses said that while pep-forming the ceremony of Talab-e-Ishtishhad the plaintiff uttered that whatever properties had been purchased by Gajadhar from the second defendant were the subject-matter of the ceremony. It had got to be an omnibus formula which could apply to any sale deed without reference to the items of the properties sold. The plaintiff claims to have performed the ceremonies at several places apparently with a view to showing that he was out to perform the ceremonies on lands of differ-rent items of property besides performing those ceremonies at the respective houses of the defendants 1 and 2. But if the plaintiff's case is true that he came to know of the sale for the first time on the 2nd of January, 1944, when Jadunath did not inform him about the details of the subject matter of the sale deed, it is a little difficult to appreciate as to how the plaintiff performed the ceremonies at the several places. It is also a little difficult to believe that the plaintiff would remember to use the words “Talab-e-mowasbat and Talab-e-Ishtishhad” at the spur of the moment without any consultation with a lawyer as to the ceremonies necessary to be performed. It is true that more than thirty years ago the plaintiff had unsuccessfully fought out a case of pre-emption, but that hardly could enable him to remember the necessary formulae in connection with the ceremonies. All the witnesses examined by the plaintiff in support of his claim of having performed the ceremonies of Talab-e-mowasbat and Talab-e-Lshti-shhad parrot like repeated practically the same words including the word “Talab-e-mowasbat”. In my opinion, the plaintiff's witnesses are all tutored ones who have been prepared to repeat the exact words even though they had no previous occasion of knowing those words which are of very uncommon use. Plaintiff's witness No. 2 has stated that Jadunath told the plaintiff that the second defendant had sold her property in Majhaul to the first defendant. If that is so, it is a little difficult to understand how they went to Buzurgabad or to the other items of property to perform the ceremonies if they ever did so. Either the plaintiff was aware of the contents of the sale deed before the 2nd of January, 1944, or he did not perform the ceremonies at those several places. This witness (P.W 2) has spoken about specific dates, namely, the 1st of January, and the 2nd of January, 1944. But he had to admit in his cross-examination that he had no written note about those dates. He was further questioned as regards matters in which he was personally interested and he pleaded want of recollection. It does not appear therefore, that he had a particularly good memory so as to remember the critical date, the 2nd of January, 1944. The same criticism applies with equal force to the evidence of P.Ws 3, 4, 5, and 7. The witnesses examined by the plaintiff in support of his having performed the ceremonies in connection with the right of pre-emption are not reliable. I would therefore, hold that the plaintiff has failed to prove that he came to know of the sale in question for the first time on the 2nd of January, 1944, or that he performed the ceremonies on that date.

8. Apart from those considerations, the evidence taken at its face value does not, in my opinion, fulfil the requirements of the law. The following observations in the judgment of Mr. Justice Chatterjee, who delivered the judgment of the Division Bench of this Court in the case of ‘Medni Proshad v. Suresh Chandra’, 21 Pat 799 at pages 805 and 806, summarised the legal position.

“In the Hedaya (Hamilton's translation, Grady's edition, page 550) it is stated: ‘The right of Shafia is but a feeble right, as it is the disseizing another of his property merely in order to prevent apprehended inconveniences Mr. Ameer Ali in his treatise on Mohammadan Law (4th edition, Vol. 1 at page 724) says ‘as the right of pre-emption is strictissimi juris (strict rule of law), failure to perform the ‘demands’ in accordance with the requirements of law would defeat the claim’. Again at page 726 he states. The law requires that the performance of the ceremonies must be strictly established’. The ceremonies referred to here are the talab-i-mowasbat and the Talab-e-istishhad.

In the Hedaya (Hamilton's translation, Grady's edition, page 551) Talab-i-Ishtishad is spoken of as a “Claim by affirmation and taking to witness' and then follows the statement; ‘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 Talab-i-Mowasbat as that is expressed immediately on intimation being received of the sale. It is, therefore, necessary to make the Talab-i-shadwa Takreer, which is done by the Shafee taking some person to witness, either against the seller, 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 Shafee thus taking some person to witness his right of Shaffa is fully established and confirmed.’ Then at the end of the same paragraph the manner in which the claimant should make the demand is indicated in the following illustration; ‘Such a person has bought such a house, of which I am the Shafee; I have already claimed my prievilege of Shaffa and now again claim it; be therefore witness thereof’ Similar illustrations are given in Fatawa-i-Alamgiri and Durul-Mukhtar to show how the second demand is to be made, and there also words like “Bear ye to this” are used. In Ameer Ali's Mohammadan Law (4th edition, volume I page 725) it is stated that in the presence of the witnesses the pre-emptor must say to the following effect. “Such a person bought such a property (sufficiently indicating the same) of which I am the Shafee; I have already claimed my right of Shaffa and now again claim it, be ye therefore witness thereof.”

9. It would appear that it is essential to the performance of the ceremonies connected with pre-emption that the pre-emptor while performing the ceremony of Talab-i-ishtishhad should specify the property in respect of which he is proclaiming his right of pre-emption. Simply his saying that he was demanding pre-emption of whatever properties have been purchased by the defendant will not be enough compliance with the requirements of the law. On this ground also, in my opinion, it must be held that the plaintiff has failed to prove that the words used by him at the time of making the second demand of Talab-i-Istishhad were sufficient to draw the attention of the witnesses to the specific property in respect of which he was demanding his right of pre-emption. On this ground alone, therefore, the suit is liable to be dismissed.

10. It remains to consider the first question-raised by the learned Counsel for the appellant, namely, whether the amendment allowed by the Court below had been properly allowed and whether the amendment really amounted to an amendment of the plaint. It was contended by the learned Counsel for the appellant that the amendment was only in respect of the relief sought by the plaintiff. It did not seek to make any amendment in the material facts constituting the plaintiff's cause of action and that, therefore, the material facts alleged in the plaint did not entitle the plaintiff to the relief sought. It was contended that paragraph 3 of the plaint read with schedule B showed the properties in respect of which pre-emption was sought. That first item in schedule B mentioned only four annas five gandas, and odd and tauzi no. 1130. Paragraph 3 read with Schedule B were not amended. Hence the suit, so far as tauzi No. 1130 was concerned, continued even after the amendment to relate to only four annas and odd of tauzi No. 1130. Hence the main-amendment by way of addition of Cl. 1(a) in the relief portion of the plaint in substance was no-amendment which could entitle the plaintiff to-relief in respect of the entire eight annas and odd share which has been found by the Court below to have been conveyed by the sale deed in question. It was also contended that if the suit were treated as relating to eight annas and odd of Tauzi No. 1130, the defendant had been deprived of a valuable right of pleading limitation as regards the four annas share in tauzi No. 1130 as the amendment was sought on the 29th of August, 1945, that is to say, more than one year after the registration of the sale deed. Reliance was placed on behalf of the appellant on the following decisions ‘Weldon v. Near, (1887) 19 Q.B.D 394 : ‘Bhagwanji Morarji Gokuldas v. Alembic Chemical Works Co. Ltd.’, 75 Ind App 147; ‘Janardan Kishore v. Shib Prasad Ram’, 43 Cal 95; ‘Kali Das v. Draupadi Sundari Dassi’, 22 Cal WN 104; ‘Upendra Narain v. Janaki Nath’, 22 Cal WN 611 and ‘Gyanendra Nath v. Paresh Nath’, 26 Cal WN 73. On behalf of the respondent reliance was placed upon two decisions of their Lordships of the Judicial Committee, in the case of ‘Mahummud Zahoor Ali Khan v. Mt. Thakooranee Rutta Kuer’, 11 Moo Ind App 468 and in the case of ‘Charan Das v. Amir Khan’, 47 Ind App 255 in support of the contention that in special circumstances even where the proposed amendment would deprive the defendant of the plea of limitation, it was open to the Courts to grant leave to amend. Though there is a good deal of substance in the contention raised on behalf of the appellant, I would not rest my judgment on this point alone as contended streneously on behalf of the appellant.

11. Similarly there is a good deal of substance in the appellant's contention that the suit related to only a portion of the property conveyed to the contesting defendant both by reason of the fact that the dakhili villages of tauzi No. 1130 had not been included in the schedule to the plaint as-also by reason of four annas of that property not being the subject-matter of the suit, as originally framed. This plea, strictly speaking is not available to the defendant, as he did not specifically raise the question of maintainability of the suit on these-accounts.

12. For the reasons stated above, I would allow this appeal, set aside the decision of the learned Subordinate Judge, and dismiss the suit with costs here and in the Court below.

13. Ramaswami, J.:— I agree.

R.G.D

14. Appeal allowed.