Chatterji, J.:— These two appeals, of which no. 670 is by the defendants 1 and 2 and no. 897 by the plaintiffs, arise out of a pre-emption suit. Defendants 3 and 4 (called the defendants second party) are the vendors, and defendants 1 and 2 (called the defendants first party) are the vendees. The vended property is one anna share in mauza Hussainipur, tauzi no. 398, district Darbhanga. The plaintiffs claim pre-emption on the ground that they are co-sharers of Mauza Hussainipur, tauzi no. 398, and as such they are shafi-i-shariks.

The parties are Hindus, but it is not disputed that according to the prevailing custom in Bihar the law of pre-emption is applicable to them.

The defence is that defendants 1 and 2 are themselves co-sharers and as such they have got equal right with the plaintiffs and that the necessary demands for pre-emption were not made by the plaintiffs in accordance with the requirements of the law. The claim of defendants 1 and 2 as co-sharers is based on the allegation that they are co-sharers of some other tauzis which together, with the disputed tauzi no. 398 have some shamilat lands.

With regard to the performance of the requisite demands, the plaintiffs gave evidence to the following effect, as found by the Court of appeal below: Immediately on hearing of the sale plaintiff no. 1 Ramdhari Tewari, since deceased, and his son plaintiff no. 2 Suresh made the first demand talab-i-mowasibat. Then they proceeded to the house of defendants 3 and 4, accompanied by Bhikhari Pandey P.W 7, and there they made the second demand talab-i-ishhad, invoking Bhikhari as a witness. Next they went along with Bhikhari to defendant no. 1 and repeated the second demand talab-i-ishhad in the presence of Bhikari P.W 7 and Rameshwar Choudhury P.W 8, both of whom were asked to bear witness to it, Rameshwar being in the company of defendant no. 1 at the time. Next they along with Bhikhari went to the village Hussainipur where also they repeated the demand talab-i-ishhad in the presence of Bhikhari and Ramkhelawan P.W 9. The latter happened to be present there. According to Suresh's evidence he and his father cited Ramkhelawan as a witness on the occasion. The plaintiffs also deputed an agent to Begusarai where defendant no. 2 is a pleader, and there the agent in the presence of defendant no. 2 made the demand talab-i-ishhad.

The learned Munsif found that defendants 1 and 2 are not co-sharers of the disputed property and can have, therefore, no right of pre-emption. He found that talab-i-mowasibat was duly performed. As regards the talab-i-ishhad, he found that the demand made in the house of defendants nos. 3 and 4 was not valid, because it was not made in the presence of two witnesses as required by law, but the demands made in the house of defendant no. 1 and in village Hussainipur were duly performed. He, however, disbelieved the evidence that the demand was also made at Begusarai in the presence of defendant no. 2. On these findings he decreed the plaintiffs' claim for preemption.

On appeal by defendants 1 and 2 the learned Additional District Judge affirmed the Munsif's findings that the talab-i-mowasibat was duly performed; that the talab-i-ishhad was also duly performed in the house of defendant no. 1; and that no talab-i-ishhad was made in the presence of defendant no. 2. He, however, held that there was no valid talab-i-ishhad in village Hussainipur, because the plaintiff Suresh P.W 4 had said that of the two witnesses present at the time, namely, Bhikhari P.W 7 and Ramkhelawan P.W 9, only the latter was cited and not the former. Before him the question regarding the right of defendants 1 and 2 as co-sharers does not appear to have been raised. On the finding that talab-i-ishhad was duly performed in the house of defendant no. 1, he held that it was operative with respect to the share of defendant no. 1 alone which he considered to be six pies. Accordingly he allowed the appeal in part in the following terms:—

“The appeal is accordingly allowed in part and the decree of the learned Munsif is modified by declaring the plaintiff's title by preemption to six pies out of 1 anna share of the property in suit belonging to the defendant no. 1. Rs. 1,250 out of the amount deposited by the plaintiffs into court on 14th December, 1980 will be paid to the defendant no. 1 and the balance will be refunded to the plaintiffs on their respective applications. The defendant no. 1 shall deliver possession of the six pies share to the plaintiffs whose title thereto shall be deemed to have accrued from the date of the payment. In case the defendant no. 1 does not deliver possession the plaintiffs shall be at liberty to recover it through court. The possession, which will be delivered to the plaintiffs, will be joint possession with the defendant no. 2, the plaintiffs' right to get mesne profits be also declared and the amount thereof may be ascertained hereafter on their application. With respect to the remaining 6 pies share of the defendant no. 2, the suit will stand dismissed.”

Being dissatisfied with this decision the plaintiff and defendants 1 and 2 have filed these second appeals.

I shall first deal with the plaintiffs' appeal no. 897 of 1940. Mr. Sushil Madhab Mullick on behalf of the appellants contends that the District Judge's finding that there was no valid talab-i-ishhad in village Hussainipur is erroneous in law. The finding of the District Judge, so far as the evidence is concerned, is this:

“As regards the last demand, which is said to have been performed in the village, Suresh has stated that in the village also, he and his father uttered the same words thrice, asserting their right of pre-emption in the presence of Bhikhari Pande and Ramkhelawan (P.W 9). Both Bhikhari and Ramkhelawan have corroborated Suresh, but one important thing, which is to be noticed in the evidence of the latter, is that he and his father cited only Ramkhelawan as a witness.”

Mr. Mullick does not dispute this finding of fact. What he contends is that the conclusion of law drawn by the District Judge from this finding is wrong. The view taken by the learned Judge is that the mere presence of at least two witnesses when talab-i-ishhad is made is not sufficient, but they must be specifically called upon to bear witness to the demand. In support of this view he relies chiefly on the decision of this Court in Sarjug Singh v. Jagmohan Singh in which it was held that “Under the Muhammadan law not only is it necessary that the talab-i-istishhad should be made in the presence of witnesses but that they should be asked to bear testimony that the demand has been duly made”. Mr. Mullick argues that this decision cannot be regarded as an authority, because the point did not really arise for decision in that case and the above statement of the law was merely an obiter. It is pointed out that in spite of the above observation this Court affirmed the decree for preemption that was passed by the lower appellate Court on the finding that the demands were duly performed.

Mr. Mullick relies on the decision of the Allahabad High Court in Ahmad Hakim v. Muhammad Hakimatullah and Imam-ud-din v. Mtihammad Rais-ul-Islam. In both these decisions Sulaiman, J. (as he then was) was a party, and it was held that. “In making the talab-i-istishhad or second demand, it is not absolutely necessary for the pre-emptor to use words like ‘Be be witness to this’ addressed to the witnesses, or otherwise to specifically invoke them to be witnesses”. There is an earlier decision of the same High Court to the same effect, Chhattu v. Husaini Buksh which was followed in Imam-ud-din's case.

Mr. Hasan Jan on behalf of the respondents, on the other hand, relies on another decision of the Allahabad High Court, Ganga Prasad v. Ajodhya Prashad and also on several decisions of the Calcutta High Court, namely, Issur Chunder Shaha v. Mirza Nisar Hossein, Goluck Ram Deb v. Brindaban Deb, Rujjab Ali Chopedar v. Chundi Churn Bhadra, Abdul Rahim v. Maidhar Gazi and Hamitulla v. Karim Bux. All these decisions are to the effect that one of the formalities necessary for talab-i-ishhad is the invocation of witnesses without which the demand would be invalid. Mr. Hasan Jan also relies on the decision of this Court in Sarjug Singh's case which followed the Full Bench decision of the Calcutta High Court in Rujjub Ali's case.

There is thus a conflict of authorities on the point. It is, therefore, necessary to examine the position carefully.

In the Hedaya (Hamilton's translation, Grady's edition, page 550) it is stated: “The right of Shaffa 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 Muhammadan Law (4th edition, Vol. I, 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 the 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-mowasibat and the talab-i-ishhad.

In the Hedaya (Hamilton's translation, Grady's edition, page 551) talab-i-ishhad 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-Mowasibat, as that is expressed immediately on intimation being received of the sale. It is, therefore, necessary afterwards to make the Talab-Ish-had we 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 privilege of Shaffa, and now again claim it: be therefore witness thereof”. Similar illustrations are given in Fatawai-Alamgiri and Durrulmukhtar to show how the second demand is to be made, and there also words like “Bear ye witness to this” are used. In Ameer Ali's Muhammadan 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.”.

In Durrul-Mukhtar (B.M Dayal's reprint, page 387) it is stated that the second demand “is known as invoking of witnesses”. According to Ameer Ali's Muhammadan Law (4th edition, volume I, page 724) “talab-i-istishhad” means “Demand by invocation of witnesses”. Baillie in his Digest of Muhammadan Law (1865 edition, volume I, page 483) uses the term “talab-i-ishhad” as meaning “demand with invocation of witnesses”. In Mulla's Muhammadan Law (11th edition at page 195) “talab-i-ishhad” is stated to mean “Demand with invocation of witnesses”.

If the expression “talab-i-ishhad” means “Demand by invocation of witnesses”, the necessary implication is that the demand cannot be dissociated from invocation of witnesses. In other words, invocation of witnesses is an essential and inseparable element of talab-i-ishhad. It is for this reason that we find the words “Be ye therefore witness thereof” or similar words in the illustrations given in the Hedaya, Fatwai-Alamgiri and Durrul-Mukhtar and also in Ameer Ali's Muhammadan Law. If the making of the demand in the presence of witnesses, without invoking them, is considered sufficient, the use of the words “Be ye witness thereof” or similar words which amount to invocation of witnesses would be quite unnecessary and would not have found place in the illustrations in all the aforesaid books. Talab-i-ishhad is itself a formality, and the illustrations show how the formality is to be observed. The formality would lose much of its force and effect if the demand were to be made in the presence of witnesses who were not called upon to bear witness to it. That invocation of witnesses is an absolutely essential part of the formality will be clear from the following passage in Durrul-Mukhtar, volume II (B.M Dayal's reprint at page 395): “And the right is extinguished also by pre-emptor's not invoking witness at the premises or in the presence of the vendor or vendee whilst he was capable of doing so”.

It is true that talab-i-ishhad can be done by means of a letter or a messenger, as stated in Ameer Ali's Muhammadan Law (4th edition, volume I, page 726) and Baillie's Digest of Muhammadan Law (1865 edition, volume I, page 483). But the contexts show that it is only an exception in the case of a person who is unable to make the demand personally. The exception cannot supersede the general rule.

Baillie in his Digest of Muhammadan Law (same volume at page 483) states: “By talab-i-ishhad or demand with invocation of witnesses (also styled tukreer, as before mentioned), is meant a person calling on witnesses to attest his tulub moowathubut, or immediate demand. The invocation of witnesses is not required to give validity to that demand, but only in order that the pre-emptor may be provided with proof, in case the purchaser should deny the demand, saying, ‘you did not demand your right when you heard of the sale, nay, you ??? your right’; while the pre-emptor says, or ??? other hand, ‘I did demand it,’ when, the word ??? with the purchaser, the onus probandi would be cast on the other”. The observation that “The invocation of witnesses is not required to give validity to that demand”, in my opinion, refers to the “immediate demand”, as the context shows, because the just preceding passage speaks of attesting the “immediate demand”, while the next succeeding passage refers to proof of that demand, if it is denied by the purchaser. But assuming that the observation was intended to refer to the second demand, I find myself unable, for reasons already given, to endorse that view.

In the above quotation from the Hedaya (Hamilton's translation, Grady's edition, page 551) the statement that “this (the second demand) also is requisite; because evidence is wanted to establish proof before the magistrate” or that “Upon the Shafee thus taking some person to witness, his right of Shaffa is fully established and confirmed”, does not militate against the view I take. These statements show that the second demand is necessary in order to afford proof of the first and that on performance of the second demand the right of Shaffa is perfected. But they do not show how the second demand is to be made. For one thing, they do not show that this demand must specifically refer to the fact of the first demand having been made. But it is well-settled that such reference is absolutely necessary. For the form of the second demand, therefore, one must look to the illustration that follows at the end of the paragraph (page 551).

I shall now turn to the decisions cited on both sides. The more important of the cases relied upon by Mr. Mullick is Irnam-ud-din v. Rais-ul-Islam, decided by Sulaiman and King, JJ. The facts in that case were these: The plaintiff who claimed preemption heard of the sale from one Banwari Lal and made his first demand then and there. He then took Banwari Lal with him to the vendee who was on the premises, and made the second demand to the vendee in the presence of Banwari Lal and a servant of the vendee who was present there at the time. In making the second demand plaintiff referred to the first demand having been made by him promptly, but “he did not charge them (the witnesses) to bear witness to the demand”. The lower Courts dismissed the suit, holding that the omission to ask the witnesses to bear testimony to the demand was fatal. On appeal the decision was reversed. Their Lordships said “What is necessary is that in order to have proof that the second demand was duly made there ought to be at least two witnesses available to support the pre-emptor. Their mere presence on the scene, if they were inattentive and did not hear the demand being made, so as to be unable to give evidence in support of it, would of course be, insufficient; but so long as they heard the demand, being made and can bear testimony to it, there seems to be no defect in the demand. To hold otherwise would be to reduce the law to an absurd technicality”. Their Lordships further said “We are of opinion that it was not absolutely necessary for the pre-emptor to use words like ‘Be ye witness to this’ addressed to the witnesses at the time of the second demand; but that it must be fully established that there were at least two witnesses present on the occasion who heard the demand and can bear witness to the fact when it is denied by the vendee.” Sulaiman, J., that eminent Judge, being a party to this decision, it is entitled to great weight. But with all respect, I must observe that the proposition seems to have been too broadly stated. In my opinion, the proposition, if accepted, would have the effect of greatly impairing the solemnity which the law is supposed to attach to the demands. Suppose, a pre-emptor after making the immediate demand goes to the land sold to perform the second demand. He does not take any witness with him, but he finds some persons who happen to be present on or near the land; and in their presence and hearing, but without invoking them, he performs the second demand. Does this sort of demand amount to a solemn act such as the law contemplates? I think, not. Demand in the mere presence and hearing of the witnesses can hardly be said to be “demand by invocation of witnesses”.

The next case relied upon by Mr. Mullick is that of Ahmad Hakim which was decided by Lindsay and Sulaiman, JJ. In that case the plaintiff made the first demand in the presence of two witnesses and asked them to accompany him to the vendees in order that the second demand might be made in their presence. They both stated that they heard the Second demand being made and their attention was attracted to it. Their Lordships held that the omission on the part of the plaintiff to ask the witnesses in express terms to bear testimony was not fatal. The witnesses were in fact called to bear testimony to the demand, and when it was made, their attention was drawn to it. This was tantamount to invocation of the witnesses. That case is, therefore, distinguishable on its facts.

Of the cases relied upon by Mr. Hasan Jan, the most important is that of Rujjub Ali, decided by a Full Bench. The facts in that case were these: The plaintiff on hearing of the sale performed the ceremony of talab-i-mowasibat in the presence of witnesses, but not in the presence either of the seller or of the purchaser, or on the land itself. He then proceeded with these witnesses to the house of the vendor, where the purchaser was also present, and there he performed the ceremony of talab-i-ishhad. But he did not at the same time declare that he had performed the talab-i-mowasibat, nor did he invoke witnesses to attest his immediate demand. The question referred to the Full Bench was “When a person claiming a right of pre-emption has performed the talab-i-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 that, when performing the talab-i-ishhad, he should declare that he has made the talab-i-mawasibat, and at the same time should invoke witnesses to attest it?” The Full Bench consisting of Sir Comer Petheram, C.J, Prinsep, Pigot, O'Kinealy and Ghose, JJ., answered the question in the affirmative. Their Lordships said “one essential portion of these forms (meaning the talab-i-mawasibat and talab-i-ishhad) is the attesting the immediate demand, and that is not only the view put forward in Baillie's Digest, but also in Hamilton's Hedaya and in Macnaghten's Precedents”. It is true that in this case the second demand was defective on another ground, namely, that there was no reference to the immediate demand having been made. But their Lordships were considering what was necessary to make the second demand valid.

The next important case cited by Mr. Hasan Jan is that of Abdul Rahim, decided by Cuming and Mukherji, JJ. In that case their Lordships said “Amongst the formalities necessary for the talab-i-istish-had, however, is that of invocation of witnesses. If this has been done in the first demand, no second demand, according to the proposition above-mentioned, would be necessary. The right is strictissimi juris and failure to perform the demands in accordance with the requirements of the Muhammadan Law would defeat the plaintiff's claim. This invoking of witnesses, as far as may be gathered from the authorities, is no mere matter of form; it imparts to the demand a solemnity, clothed in which, the demand becomes not a casual one, but on the other hand, assumes the nature of a serious transaction”.

The other decisions of the Calcutta High Court relied upon by Mr. Hasan Jan are to the effect that it is essential to the proper performance of talab-i-ishhad that witnesses should be formally called upon to bear testimony to the demand.

In Sarjug Singh's case, decided by this Court, Mullick, J. who gave the judgment (Jwala Prasad, J. concurring) dealt with the point as follows: “It was contended before us by the learned Vakil for the appellants that it is necessary under the Muhammadan Law that not only this demand should be made in the presence of witnesses but that they should be asked to bear testimony to the declaration that the demand had been duly made. This is in conformity with the views expressed by the text book writers and has been affirmed by their Lordships of the Calcutta High Court in the Full Bench decision in Rujjub Ali Chopedar v. Chundi Churn Bhadra. But the appeal was dismissed on the finding of the lower appellate Court that the plaintiff, did call upon the witnesses to bear testimony to the fact that he had performed the previous ceremony. This decision, therefore, cannot be regarded as an authority binding on us. However, the, fact remains that Mullick, J. followed the Full Bench decision of the Calcutta High Court in Rujjub Ali's case.

Mr. Hasan Jan also relies on an earlier case of the Allahabad High Court, Ganga Prasad v. Ajudhya Prasad, decided by Banerji and Richards, JJ. In that case the plaintiff had neither taken the witnesses with him to the spot nor did he ask them to be witnesses to the demand. The witnesses simply happened to be present at the time when he made the second demand. It was held that the second demand was not performed in the manner required by the Muhammadan Law. That case is no doubt distinguishable from the facts before us, but it is directly in conflict with the proposition laid down in. Imam-ud-diris case.

In this divergent state of the authorities, I feel inclined to follow the decisions of the Calcutta, High Court and hold that invocation of witnesses is an essential part of the ceremony of talab-i-ishhad which without it will not be valid. I may observe here that in Imam-ud-din's case, which was decided in May 1930, there is no reference to Rujjub Ali's case decided in 1890, or to Abdul Rahim's case, decided and reported in 1928.

Now, in the present case it has been found by both the Courts below that Ramkhelawan P.W 9 was cited as a witness. As regards Bhikhari P.W 7, the trial Court found that he was in fact taken to village Hussainipur for the purpose of bearing testimony to the demand. But there is no finding of the appellate Court on the point. If Bhikhari was taken to the spot for the purpose of bearing testimony to the demand, and in his presence Ramkhelawan was invoked as a witness, I think the invocation may be taken to be sufficient for both of them. For a proper determination of the appeal a finding of the lower appellate Court on the point is necessary.

I would accordingly remand the case to the lower appellate Court for recording a finding as to whether Bhikhari P.W 7 was taken to the village Hussainipur for the purpose of bearing testimony to the demand talab-i-ishhad.

Now I come to defendant's appeal no. 670 of 1940 (by defendants I mean defendants 1 and 2). The first point taken on their behalf by Mr. Hasan Jan is that they are also shafi-i-shariks, being co-sharers of the disputed property, and as such they have equal right with the plaintiffs. This contention was negatived by the trial Court, but it does not appear to have been raised in the lower appellate Court. However, as the facts found by the trial Court are not in dispute, the question raised may be entertained in second appeal. The facts are that by a Collectorate partition of the parent tauzi no. 385 seven tauzis including the disputed tauzi no. 398 were carved out. There are, however, some shamilat lands, in khewats nos. 8 to 11, common to all these tauzis. The defendants are admittedly co-sharers of some of the other tauzis and as such they are jointly interested in the shamilat khewats. Their claim as shafi-i-sharik is based on the fact that they are co-sharers of the shamilat lands. It is argued that the disputed property, that is, one anna share in tauzi no. 398 includes the proportionate share in shamilat lands, and as the defendants are co-sharers of the shamilat lands, they must be deemed to be co-sharers of the disputed property. This argument is wholly untenable. After partition the different tauzis formed became separate units. The proprietors of one tauzi have no interest in the remaining ones. The shamilat lands may be the joint property of the proprietors of all the tauzis, but their proprietary interests in the different tauzis are separate and distinct. The point raised is covered by the decision of this Court in Keshab Singh…Plaintiff v. Bansi Singh…Defendant .. In that case on partition of a tauzi separate tauzis were formed, but certain brahmottar and fakirana holdings and two occupancy holdings as also a tank were kept joint. On the sale of one of the tauzis, the owner of another tauzi claimed a right of pre-emption as a sharik by reason of the existence of the undivided holdings. This claim was negatived by this Court.

The second point taken by Mr. Hasan Jan is that the decree for mesne profits passed by the, lower appellate Court is entirely wrong. Order XX, rule 14 of the Civil Procedure Code which deals with the form in which a pre-emption decree is to be passed, provides that the plaintiff's title to the property shall be deemed to accrue from the date of the payment by him into Court of the purchase money. Till then the original purchaser is entitled to retain possession. The plaintiffs are, therefore, not entitled to mesne profits. Mr. Mullick on behalf of the respondents concedes that the decree of the lower appellate Court in this respect is wrong.

The last point raised by Mr. Hasan Jan is that the decree for pre-emption passed by the lower appellate Court with respect to half share of the disputed property is wrong in law. It is argued that there cannot be partial pre-emption. It is unnecessary to deal with this point at this stage, because if at the final hearing after receipt of the finding of the lower appellate Court which is being called for, it is held that there was valid talab-i-ishhad in the village Hussainipur, pre-emption of the entire share will have to be allowed.

Let the record be sent to the lower appellate Court for recording the finding which must be submitted within two months.

Rowland, J.:— I concur in, the order proposed while reserving my opinion as to whether the view of law taken in Imam-ud-din v. Mohammad Raisul Islam is to be preferred to that expressed by Mullick, J. in Sarjug Singh's case.

K.D

Case remanded.