Ladhi Bibi vs Masaddar Ali Chaudhury

This appeal arises out of a preemption suit.

[2] The land in suit is included in pattas 34, 54, 107 and 117. Defendant 4 sold the lands in dispute to defendants 13 by a sale deed which was registered on 30th July 1943. Plaintiffrespondents preempted the transaction on the ground that they were cosharers and having performed the necessary formalities enjoined by Muhammadan law they were entitle! to a decree for preemption. The suit was resisted by the vendees. The trial Court dismissed the suit. On appeal the learned District Judge, Cachar, found that plaintiff 1 alone was entitled to preempt. (The other plaintiffs were nonsuited and they have not appealed.) He further found that plain* tiff was not a cosharer in patta 117 and, therefore, could not ask for a decree as far as landsin patta 117 were concerned. Finding further that vendees were not cosharers in patta 34, he granted plaintiff a decree for all suit lands of patta 34. As regards pattas 54 and 107, plaintiff was granted a decree for half of the lands in suit on the ground that both plaintiff 1 and the three vendees had equal rights being cosharers in the two pattas. The decree was granted on payment of Bs, 2,823. It has been argued on behalf of the defendants that plaintiff 1 was not a cosharer and in any case he should not succeed as necessary formalities entitling him to institute a suit for preemption were not observed by him. It is also contended that he could not be granted a decree for half of lands in pattas 54 and 107 in any case.

[3] The first question that arises for determination in this case ia whether plaintiff 1 was a cosharer in the three pattas, viz., 34, 64 and 107. The learned counsel for defendants has pointed out that though the plaintiff is shown as a co. sharer in the pattas, the lands of these pattaa were actually partitioned and the suit lands were allotted to defendant 4, who was the exclusive owner of these lands at the time of sale. It is not denied that suit lands are only portions of the pattas. It is admitted that though these lands have actually been partitioned, the liability for the payment of the land revenue of the pattas in question is still joint. It cannot, therefore, be held on the basis of the partition relied on by the learned counsel that there wag a perfect partition within the meaning of 8. 96, Assam Land and Revenue Regulation. According to this section ''Perfect Partition" means a division of a revenue, paying estate into two or more such estates, each separately liable for the revenue assessed thereon. "Imperfect Partition" means the division of a revenuepaying estate into two or more portions jointly liable for the revenue assessed on the entire estate. According to the definitions given in S. 96, the alleged partition is imperfect. The lands appertaining to the pattas may have been partitioned and defendant 4 may have been holding them in severally but he never applied that these lands be declared a separate estate. They have not so far been separately assessed to Government revenue. The partition, therefore, has not affected the joint liability for the payment of the revenue assessed on the pattas in question. For the purposes of preemption under Muhammadan law, the plaintiff, defendant 4 and all other persons who are jointly responsible for the payment of the revenue will all be treated as co sharers,

[4] The question now before us was considered by their Lordships of the Privy Council in Jadulal Sahu v. Janki Kcer, 39 Oal. 915 : (39 I. A. 101 P. 0.). It was urged before their Lordships that the claim to coparcenary on which the plaintiff''s right of preemption was based arose out of the fact that the vendor and preemptor were jointly liable for the payment of the Government revenue assessed on the villages in the mabal but this joint liability alone was not sufficient as a basis for a right of pre emption under the Muhammadan law. The argument did not find favour with their Lordships. They observed as follows :

"The argument seems to proceed on a misconception of the land system of India. A mabal is a unit of property : it may consist of one village or of several villages : it may be owned by one or several proprietors who may have an interest in all or some of the villages comprised in the estate. Their joint liability for the �Government revenue arises from the fact that they own undivided interests in the property; and that joint liability does not cease in the case of any co sharer until his particular share has been partitioned by the Revenue authorities, when the share so partitioned becomes ft separate unit of property."

[s] It is obvious that their Lordships held that the joint liability for the payment of Government revenue was the test of the coparcenary contemplated by the Mnhammadan law. According to that test, plaintiff, defendant 4 and all others who were jointly liable would be cosharers. Mere partition of property between cosharers would not effect the preemptive right under Muhammadan law of a person who is jointly liable for payment of the revenue.

[6] The view of the law enunciated by their Lordships of the Privy Council in the above case was followed in SaidudDin v. Latifunmssa Bibi, 44 ALL. 114 : (A. I. K (9) 1922 ALL. 391). In applying this view to the facts before them, the learned Judges of the Allahabad High Court) observed that

"there are many cases of imperfect partition, where the interests of the cosharers in the mahal are divided completely from one another and that all that remains joint is the liability for the Government revenue. Still it is this liability which has been laid down by the Privy Council as a test of the coparcenary contemplated by the Muhammadan law."

[7] This case leaves no room for doubt that the imperfect partition on which the learned counsel for the defendant relies is not sufficient for holding that plaintiff is not a co sharer for purposes of preemption under the Muhammadan law. His contention, therefore, cannot prevail.

[8] As regards Talabs under Muhammadan law, what is required is that the preemptor must assert his claim immediately on getting information of the sale. This is called "TalabIMuatbibat." He is also to confirm this assertion as soon as practicable by making a second demand called "TalabIShhad" for preemption. The second demand must include a declaration of his having already asserted his claim. It should also be made in the presence of two witnesses expressly called upon to bear witness to it and also in the presence either of the seller or of the buyer or on the land sold.

[9] Plaintiff deposed in Court that on 13th Srawan (last) he was in the Bar library when Rahman All went to him and informed him that defendant 4 had sold the lands to defendants 13. He became restless and shouted that he was the Safi and these words he repeated three times. Then he ran to the SubRegistrar''s office and after the registration of the saledeed was completed and defendants 14 (vendor and vendees) were coming out, he asserted his claim and expressed his willingness to pay the sale money. This be did while yet he was inside the SubRegistrar''s office. On coming out he found defendants near the Mohorrer of the SubRagiatrar''s Office. He again confirmed his first assertion and repeated his willingness to pay the sale money and invoked the witnesses present to hear it Two witnesses of plaintiffs 2 and 3 have deposed that outside SubRegistrar''s office plain, tiff made the second Talab and stated at the time that he bad asserted his right and made a demand inside the office also.

[10] The second demand was made in the presence of the witnesses and also the vendor and the vendees. The learned District Judge has relied on this evidence and has held that both the demands were made by plaintiff 1 in accordance with the requirements of the Muhamanadan law.

[H] We have been taken through the evidence. We do not find that this finding is erroneous. In any case it cannot be urged that the finding in this case has been vitiated by any error of law or procedure. The question involved is one of fact. The evidence produced on the point has been Relieved and we see no justification for disturbing it on second appeal.

[12] In this connection the contention put forward by the learned counsel for the defendants was that according to the plaint, the first demand was made on 30th June and not on 30th July. The document was actually registered on Both July and therefore, the first demand wag made before the sale was complete. This should be taken as premature and therefore any other demand that was made would not be the second demand in the case. The argument is based on a misapprehension. In the plaint no doubt the plaintiff stated that the document of sale was registered on 30th June and be made his first demand that day. This appears to be a clerical slip. Actually the document was registered on 30th July and the evidence led at the trial all is to the effect that it was on 30th July that both the demands were made by the plaintiff. The question of invalidity of the demand does not arise in these circumstances. The learned counsel again made a halfhearted attempt to show that even on 30th July the first demand came before the sale was complete There is no basis for this argument. The plaintiff''s statement is clear and it is to the effect that the first demand was made after the document had been registered. This contention, therefore, has got no force.

[13] Vendees are not cosharers in patta No. 34. Plaintiff, therefore, is entitled to preempt the lands of this patta to the exclusion of the vendees. As regards lands of pattas NOS. 54 and 107, plaintiff has been given a decree for half. But this is not according to law. Plaintiff and the three vendees are all cosharers in the land. Their rights are equal and according to Muhammadan law, they will be entitled to share the land equally between themselves. This view, of the law admits of no doubt and Amir Hasan v. Bahim Baksh. 19 ALL. 466 : (1897 A. W. N. H8) is a clear authority that supports it. In these circumstances plaintiff would be entitled to 1/4th of lands sold from pattas NOS. 54 and 107.

[14] As a result of this finding the decree of the lower appellate Court will be modified to this extent that instead of one half of the lauds sold from pattas 54 and 107, plaintiff shall get a decree for 1/4th only. The preemption money that he has to pay will be proportionately reduced. The total area of the laud decreed will thus be 10B 10K, 133/4th and the amount payable by the plaintiff will be reduced to Rs. 256680. Parties shall bear their own costs in this appeal.