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Sadiq Ali v. Abdul Baqi Khan
Factual and Procedural Background
These three second appeals (Nos. 1371, 1372 and 1373 of 1919) arise from three pre-emption suits instituted by Abdul Baqi Khan against Sadiq Ali and others concerning shares in a house originally purchased by Azmatullah and his son Abdullah (alias Hingan). The relevant sales and litigation chronology as presented in the opinion is:
- Ghulam Muhammad acquired shares from several siblings and obtained a partition decree in 1909.
- In 1915, Abdul Karim Khan and his sister Halim-un-nissa sued to recover their shares against Musammat Kariman and others; Abdul Baqi defended, pleading adverse possession. The Munsif decreed the claim on 7 August 1915; on appeal that decree was set aside on res judicata grounds.
- Abdul Karim and his wife Musammat Sakina Bibi executed two sale-deeds on 22 December 1917 in favour of Sadiq Ali for their separate shares.
- On 15 March 1918 Anwar Ali sued to recover possession by asserting a right of pre-emption against Abdul Karim, Sakina Bibi and Sadiq Ali. On 14 May 1918 Anwar Ali and Sadiq Ali compromised, whereby the sale of 22 December 1917 was allowed to stand and Anwar Ali agreed to convey his share to Sadiq Ali; that compromise was embodied in a decree dated 20 August 1918.
- On 7 September 1918 Abdul Baqi instituted two pre-emption suits against Sadiq Ali: one based on Sakina Bibi's transfer and one based on the transfer of Anwar Ali under the compromise/decree. On 16 December 1918 Abdul Baqi instituted a third suit against Sadiq Ali in respect of Abdul Karim's transfer of 22 December 1917.
- One suit (Anwar Ali’s share) was filed in the Subordinate Judge's court and the other two in the Munsif's court; the two Munsif suits were transferred to the Subordinate Judge. Evidence for all parties in the three suits was recorded in Anwar Ali's case, and one judgment governed all three suits.
- The learned Subordinate Judge dismissed all three pre-emption claims: for Abdul Karim and Sakina Bibi’s transfers he found the two demands required under Muhammadan law had not been made; for Anwar Ali’s transfer he held that because the transfer arose by decree/compromise, no right of pre-emption could be asserted.
- On first appeals the lower appellate court reversed the Subordinate Judge, found the two demands were made (both first demand and second/affirmatory demand), and decreed the pre-emption claims in all three suits. Sadiq Ali then preferred these three second appeals to this Court.
Legal Issues Presented
- Whether, on the evidence, the first demand (talab-i-mawasibat) required by Muhammadan law had been made by the pre-emptor.
- Whether, on the evidence, the second or affirmatory demand (talab-i-istishhad) required by Muhammadan law was validly made — in particular whether the pre-emptor both made the demand in the presence of his witnesses and called their attention to the earlier first demand so as to satisfy the requirements of Muhammadan law.
- Whether the rule that two demands may be combined (or otherwise) under certain circumstances applies where neither the vendor nor the vendee was present at the time of the demand and the first demand was not made on the property.
- Whether a right of pre-emption can be asserted in respect of a transfer effected by a court decree or by a compromise embodied in a decree.
- Whether, by reason of vicinage (neighbourhood/co-sharership), Sadiq Ali — having acquired title on 22 December 1917 — had a superior right of pre-emption in respect of Anwar Ali’s subsequently transferred share (27 August 1918), defeating Abdul Baqi’s claim.
Arguments of the Parties
Appellant (Sadiq Ali) — objections to the lower appellate court’s findings
- The District Judge misread and misquoted the evidence of Rajjab Beg and therefore was not justified in holding that the first demand was made by the plaintiff pre-emptor.
- Even if Rajjab Beg reported the matter, on Rajjab Beg’s evidence the report had no value because no sale had actually taken place at the time the matter was reported to the plaintiff pre-emptor.
- The second (affirmatory) demand as given in the plaintiff’s evidence was invalid under Muhammadan law; learned counsel relied on case law to support the contention that the second demand was defective.
Respondent (Abdul Baqi — the pre-emptor)
- The lower appellate court’s finding should be read as accepting that at the time of the second demand the plaintiff had called the attention of his witnesses to the prior first demand; reliance was placed on the proposition that the talab-i-istishhad made in the presence of the witnesses in whose presence the immediate demand had been made suffices — authority invoked included Chotu and Ors v. Husain Bakhsh and Muhammad Usman v. Muhammad Abdul Ghafur.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Chotu and Ors v. Husain Bakhsh (1893 A.W.N. 101) | The proposition cited: that the talab-i-istishhad (affirmatory demand) made in the presence of the witnesses in whose presence the immediate (first) demand had been made may suffice to comply with Muhammadan law's requirements. | The Court considered the authority but concluded the facts of the present case did not bring it into play: there was no clear finding that the plaintiff had called his witnesses' attention to the earlier demand and, on the Court's assessment of the evidence, the plaintiff’s uncorroborated statement could not be believed. |
| Muhammad Usman v. Muhammad Abdul Ghafur (1911) I.L.R. 34 All. 1 | That the two demands (first and second) may be combined if the vendor and the vendee are present at the time the demand is made or the demand is made on the property sold. | The Court held this authority did not directly touch the question in the present case because neither the vendor nor the vendee was present when the demands were made nor was the first demand made on the property; the Court therefore distinguished it and found it inapplicable. |
| Mubarak Husain v. Kaniz Bano (1904) I.L.R. 27 All. 160 | Noted as a later decision dissenting from Chotu and Ors v. Husain Bakhsh. | The Court referred to it to show that Chotu had been dissented from by later judges; this was used to indicate that Chotu was not an authoritative uncontested rule applicable to the facts here. |
| Sarjug Singh v. Jagmohan Singh (1919) 51 Indian Cas. 40 | Referenced as a decision in another High Court on the same point regarding the requirements for the two demands under Muhammadan law. | The Court cited it as an additional authority decided in another High Court on the same issue, supporting the proposition that Chotu was not universally followed; it was used as contextual support in choosing not to apply Chotu to the present facts. |
| Rujjub Ali Chopedar v. Chundi Churn (1890) I.L.R. 17 Calc. 543 | Referenced as another decision in a High Court addressing the same point about demands under Muhammadan law. | The Court cited it alongside Sarjug Singh as further High Court authority on the topic; it contributed to the Court's view that the combination rule or Chotu's rule did not control the outcome in the present factual situation. |
Court's Reasoning and Analysis
The Court proceeded by examining the lower appellate court's findings of fact and the evidence itself, and by applying the requirements of Muhammadan law governing pre-emption demands and the relevant authorities cited by the parties.
- On the first demand (talab-i-mawasibat): the appellant argued the lower appellate judge misread the evidence of Rajjab Beg. After hearing the evidence read, the Court concluded it would not disturb the lower appellate court's factual interpretation of Rajjab Beg's statement. The Court treated the finding that the first demand was made as a factual finding not open to interference.
- On the second (affirmatory) demand (talab-i-istishhad): the lower appellate court's reasoning was examined closely. The appellate judge had expressly recorded that the witnesses did not state they were told at the second demand that a prior first demand had been made, even though the plaintiff himself said he had invoked the witnesses after the second demand. The present Court held that the language of the lower appellate court did not mean it had accepted the plaintiff's uncorroborated account against his witnesses' statements. Confronted with an absence of a clear subordinate-court finding on this critical point, the Court elected not to remand but instead heard the evidence itself.
- After hearing the plaintiff's evidence in extenso, the Court disbelieved the plaintiff's uncorroborated statement and held that the second demand deposed to by the plaintiff and his witnesses was an invalid demand under Muhammadan law. This factual finding disposed of two of the three appeals.
- The Court considered the respondent's argument that the requirements were nonetheless satisfied by a talab-i-istishhad made in the presence of the witnesses in whose presence the immediate demand had been made, relying on Chotu and related authorities. The Court analysed precedents: it noted that Chotu had been dissented from in subsequent decisions (eg. Mubarak Husain), and that Muhammad Usman did not directly address the precise question because its combination rule required the vendor or vendee to be present or the demand to be made on the property. In the present case neither condition existed, so Muhammad Usman was inapplicable. Weighed together, the precedents did not support validating the disputed second demand on the facts before the Court.
- On the appeal relating to Anwar Ali’s transfer: the Court declined to decide whether a pre-emptive right can ever arise from a transfer effected by a decree, because it found an independent factual and legal reason to dispose of that appeal. By the Court's earlier decision allowing Sadiq Ali to retain title to the shares purchased on 22 December 1917, Sadiq Ali had become a co-sharer of Anwar Ali by purchase prior to the transfer of Anwar Ali's share on 27 August 1918. Because Abdul Baqi's right of pre-emption was based upon vicinage, Sadiq Ali — being a nearer co-sharer as of the earlier date — had a superior pre-emptive right to that of Abdul Baqi. Therefore Abdul Baqi’s claim in respect of Anwar Ali’s share also failed.
Holding and Implications
FINAL HOLDING: The Court allowed all three second appeals — Nos. 1371, 1372 and 1373 of 1919 — and set aside the decrees of the court below.
Direct consequences: The decrees in favour of the plaintiff pre-emptor below were set aside and the appeals of Sadiq Ali were allowed. Costs were awarded to Sadiq Ali for all the courts.
Implications regarding precedent: The opinion applied existing authorities and factual analysis to the present case; it distinguished and discussed authorities (notably Chotu and Muhammad Usman) but did not purport to lay down a new general rule of law. The direct effect is the reversal of the lower court decrees and the vindication of Sadiq Ali's title and superior pre-emptive right (by vicinage) in the facts of this case.
1. The three second appeals, Nos. 1371, 1372 and 1373, arise out of three preemption suits instituted by Abdul Baqi Khan against Sadiq Ali and others, in the year 1918. Two of them were instituted in the court: of the Munsif and the third in that of the Subordinate Judge.
2. In order to understand the pleadings in the case, it is advisable to give a pedigree of the parties to the three appeals.
AZMATULLAH
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3. Musammat Sakina Bibi was married 1o Abdul Karim Khan. Some time ago, a house was purchased by Azmatullah and his son Abdullah alias Hingan, in equal shares. Some years afterwards, Sadiq Ali, son of Hashmat Ali, sold his interest in the house to Ghulam Muhammad. The latter also acquired the shares of his three sisters other than Musammat Kariman. In 1909 Ghulam Muhammad sued for partition against the other members of the family, whose shares he had not purchased, and obtained a decree. In 1915 Abdul Karim Khan and his sister, Halim-un-nissa, brought a suit for the recovery of their shares against Musammat Kariman and others. The chief defence to the suit was put forward by Abdul Baqi who was also a defendant in the case. He resisted the suit by pleading adverse possession. The claim was decreed by the learned Munsif on the 7th of August, 1915. On appeal, the decree of the first court was set aside on the plea that the claim was barred by the principle of res judicata. Thereupon Abdul Karim filed a second appeal to this Court which was admitted in November, 1915, and the case was remanded by thin Court, on the 15th of November, 1918, for trial on the merits. While the second appeal was pending in this Court, Abdul Karim and his wife, Musammat Sakina Bibi, executed, on the 22nd of December, 1917, two sale-deeds, in respect of their separate shares in the house mentioned above, in favour of Sadiq Ali. On the 15th of March, 1918, Anwar Ali sued to recover possession of their shares on the ground of pre-emption. The claim was brought against the vendors, Abdul Karim and Sakina Bibi, as also against Sadiq Ali, the vendee. On the 14th of May, 1918, the vendee and Anwar Ali the pre-emptor entered into a compromise, by which not only the sale-deed of the 22nd of December, 1917, was allowed to remain but Anwar Ali agreed to convey his own share also to Sadiq Ali. On the 20th of August, 1918, a decree was passed by the learned Munsif, in the suit of Anwar Ali, in terms of the compromise filed. On the 7th of September, 1918, Abdul Baqi instituted two suits on the basis of pre-emption against Sadiq Ali, namely, one in respect of the transfer made by Sakina Bibi and the second in respect of the transfer of the share of Anwar Ali under the compromise of the 14th of May, 1918, which was incorporated into the decree of the 20th of August, 1918. On the 16th of December, 1918, a third suit was instituted by Abdul Baqi against Sadiq Ali in respect of the transfer made by Abdul Karim on the 22nd of December, 1917, in favour of Sadiq Ali. Of these three suits, the suit relating to the transfer of Anwar Ali was instituted in the court of the Subordinate Judge of Cawnpore. The other two suits were filed in the court of the Munsif and were transferred to the file of the Subordinate Judge. Sadiq Ali resisted all the three suits on various grounds. The evidence for all the parties in the three suits was recorded in Anwar Ali's case and one judgment governed all the three suits. The learned Subordinate Judge, after a careful consideration of all the evidence in the case, came to the conclusion that the plaintiff's claim in all the three suits should fail. He was of that opinion, in respect of the transfers of Abdul Karim and Sakina Bibi, on the ground that the two demands required by the Muhammadan law had never been made. In the suit of Anwar Ali he was of opinion that as the transfer was by means of a decree, no right of pre-emption could be asserted.
4. Abdul Baqi preferred three appeals from the decree of the learned Subordinate Judge. The lower appellate court disagreed with the first court on the evidence and came to the conclusion that the two demands required under the Muhammadan law were made. The learned Judge of the lower appellate court was definitely of opinion that the first demand of the talab-i-mawasibat was made as soon as the plaintiff pre-emptor heard of the sales of Abdul Karim and Sakina Bibi. As to the second demand, he was also of opinion that it was made on the spot where the property transferred is situate. As to the transfer by Anwar Ali, the learned Judge was of opinion that the transfer was not, properly speaking, by a decree of a court, but, in any case, in the circumstances, the plaintiff pre-emptor had the right of pre-emption. The decrees of the first' court were accordingly set aside and the claim of the plaintiff pre-emptor was decreed in all the three suits.
5. Sadiq Ali has preferred the three appeals before us. We take up first the appeals that relate to the transfer made by Abdul Karim and his wife Sakina Bibi, on the 22nd of December, 1917. Three objections are urged on behalf of the appellant to the findings of the lower appellate court. It is urged, on behalf of the appellant, that the learned District Judge misread and misquoted the evidence of Rajjab Beg, and was not, therefore, justified in disagreeing with the first court and holding that the first demand was made by the plaintiff pre-emptor. The second objection is that, on the evidence of Rajjab Beg himself, the demand, if made, was of no value as no sale had taken place at the time the matter was reported by Rajjab' Beg to the plaintiff pre-emptor. The third objection is that the second demand, on tha evidence for the plaintiff pre-emptor, was an invalid demand under the Muhammadan law. The learned Counsel for the appellant has cited case law in support of his second and third objections. We think it sufficient to remark with regard to the first objection that, after hearing the evidence of Rajjab Beg read, we are not prepared to agree with the contention of the learned Counsel for the appellant that the lower appellate court has misread or misquoted the statement of Rajjab Beg. The learned Judge of the lower appellate court was quite justified in interpreting the evidence of Rajjab Beg as he has done and his finding on that point is a finding of fact which we are not permitted to disturb. We do not think that there is much force in the second objection also. It also depends upon the interpretation of the evidence of Rajjab Beg. The learned Judge of the lower appellate court has construed the statement of Rajjab Beg to mean that he reported to the plaintiff pre-emptor that a sale of the shares of Abdul Karim and Sakina had taken place. The plaintiff pre-emptor was justified on that evidence, to make the first demand. It would serve no useful purpose, in view of our finding on the third objection, to discuss the case law as to when should the first demand be made, that is, whether the first demand should be made when the sale is completed under the provisions of Act IV of 1882, or when the sale, according to the intention of the parties, has been completed. We think that the third objection of the appellant must prevail. The learned District Judge has not come to a clear finding on the question whether at the time of making the second demand the plaintiff pre-emptor called the attention of his witnesses to the fact that he had already made the first demand. The finding of the lower appellate court upon this point is in the following words:
As regards the affirmatory demand it was urged on behalf of the respondent that it was irregular, that the witnesses who had accompanied the plaintiff appellant to the premises were not called upon to bear witness to the fact that the immediate demand had already been made. This is true as far as the evidence of the witnesses is concerned, though the plaintiff himself states that the witnesses were invoked after the second demand on the premises. Even assuming that there was no special invocation, the -requirements of Muhammadan law were sufficiently complied with when the talab-i-istishhad was made in the presence of the witnesses in whose presence the immediate demand had been made: Chotu and Ors. v. Husain Bakhsh (1893) A.W.N. 101.
6. The learned Counsel for the respondent pre-emptor asks this Court to consider this finding as a finding that at the time of the second demand the plaintiff had called the attention of his witnesses to the fact that he had made the first demand.
7. We are unable to accede to this contention. The language of the learned Judge just quoted above would not bear any such interpretation. After reciting that the witnesses had not stated that at the second demand their attention was called by the plaintiff to the first demand, the learned Judge goes on to say that the plaintiff states that he had done so. The learned fudge stops there and goes on to the consideration of the case from another point of view, taking it for granted that the plaintiff had not called the attention of his witnesses to having made the first demand. We are, therefore, of opinion that the learned Judge; of the lower appellate court did not hold that lie believed the evidence of the plaintiff pre-emptor, not only uncorroborated but against the statements of his own witnesses. There were only two courses open to us, either to remand the ease to the court below to get a definite finding on the question raised, or to hear the evidence ourselves and record a finding. We have adopted the latter course. We have heard the evidence for the plaintiff pre-emptor read to us in extenso and criticized. We have no hesitation in holding that the plain-trill's statement uncorroborated by any of his witnesses cannot be believed and we do not believe it. We, therefore, hold that the second demand deposed to by the plaintiff and his witnesses was an invalid demand under the Muhammadan law. This finding would, at first sight, dispose of the two appeals, Nos. 1372 and 18715, but the contention on behalf of the plaintiff pre-emptor is that, even assuming the omission at the second demand referred to above, the requirements of the Muhammadan law are sufficiently complied with when the ialab-i-istishhad is made in the presence of the witnesses in whose presence the first demand was made. In support of this contention, reliance is placed on the cases of Chotu and Ors. v. Husain Bakhsh Weekly Notes 1893 p. 101 and Muhammad Usman v. Muhammad Abdul Ghafur (1911) I.L.R. 34 All. 1. The first case was considered by several learned Judges of this Court subsequent to 1893 and was dissented from; vide the case of Mubarak Husain v. Kaniz Bano (1904) I.L.R. 27 All. 160. We would also refer to the cases decided in other High Courts on the same point, namely, those of Sarjug Singh v. Jagmohan Singh (1919) 51 Indian cases 40 and Rujjub Ali Chopedar v. Chundi Churn (1890) I.L.R. 17 Calc. 543. The case of Muhammad Usman v. Muhammad Abdul Ghafur (1911) I.L.R. 34 All. 1 does not really touch upon the question under discussion. In that case it was decided that the two demands may be combined together if the vendor and the vendee are present at the time the demand is made or the demand is made on the property sold. In the present case it is not pretended that when either of the two demands was made the vendor or the vendee was present or that the first demand was made on the property. We, therefore, hold that the claim of the pre-emptor fails. We allow the appeals of Sadiq Ali in respect of the transfer made by Abdul Karim and Sakina Bibi i.e., we allow appeals Nos. 1372 and 1373.
8. The appeal No. 1371, as we have already stated above, related to the transfer made by Anwar Ali. We need not discuss the question whether any right of pre-emption accrued to Abdul Baqi because the transfer was in terms of a compromise, which compromise was embodied in the decree. Sadiq Ali, according to our decision in appeals Nos. 1372 and 1373, had acquired a good title on the 22nd of December, 1917, in the house in question. He thus became a co-sharer of Anwar Ali by virtue of his purchase of the 22nd of December, 1917. The share of Anwar Ali was not transferred till the 27th of August, 1918. Abdul Baqi's right of pre-emption is based upon vicinage. Sadiq Ali had, on the 27th of August, 1918, a better and a superior right of pre-emption to chat of Abdul Baqi. The claim of the latter, therefore, with regard to the share of Anwar Ali, also fails.
9. We allow appeal No. 1371 also.
10. The result is we allow all the three appeals, Nos. 1371, 1372 and 1373 of 1919, set aside the decrees of the court below with costs to Sadiq Ali of all the courts.
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