Sonaji and another vs Narhar

Reddy, J.—This is a second appeal arising out of the plaintiff''s suit for pre-emption. The plaintiff filed a suit against the defendant Ranganath on the allegations that plaintiff''s house abuts on to the said property on the north side; that defendants 2 and 3 sold the suit land without the knowledge of the plaintiff to the 1st defendant Ranganath on 27th Farwardi, 1353 Fasli by a registered sale deed; that fearing the exercise of the right of pre-emption by the plaintiff the sale consideration was fictitiously increased by Rs. 175/-; that the 1st defendant is in possession of the suit property; that the plaintiff came to know of the same on 3rd Thir, 1353 Fasli when the 1st defendant was constructing a window in the suit house and that he promptly made the first demand and the second demand (talab-i-nowasibat and talab-i-ishhad of Taqreer) and asked the 1st defendant-appellant to receive the sale consideration and give him the house. The 1st defendant refused to do so. In view of this the plaintiff-respondent prayed that his suit enforcing the right of pre-emption be decreed and the land and house be ordered to be delivered to him on receipt of the sale consideration.

The defendant Ranganath denied that the sale amount inserted in the sale deed was increased and alleged that the transaction pertaining to the sale of the suit property was concluded on 10th Azur. 1352 Fasli on which date he paid a sum of Rs. 325/- to the vendors and obtained possession of the same immediately, the balance of I. G. Rs. 100/- having been paid before the Registrar on 27th Farwardi, 1353 Fasli when the registered sale deed was executed in his favour by the said 2nd and 3rd. defendants. The defendant further alleged that the plaintiff had full knowledge of the sale and the date when he got into possession of the property, and consequently the suit filed by him on 19-5-1354 Fasli was clearly barred by limitation, inasmuch as it has been filed one year after he had the knowledge both of the transaction as well of his entering into possession of the said property; and that the plaintiff neither made the first and second demands as required by law, nor had he any right, to enforce the right of pre-emption. For these reasons the 1st defendant prayed that the suit be dismissed.

Both the courts below have held that the 1st defendant did not prove that the plaintiff had knowledge of the sale on 10th Azur, 1352 Fasli nor was 1st defendant in possession of the suit property as an owner on the date as alleged. In these circumstances they held following ''16 Deccan L R 246'' that time for limitation would commence to run from the date of the registered sale deed, i.e., 27th Farwardi 1353 Fasli from which date the suit is within time and that the 1st and the second demands (talab-i-mowasibat and talab-i-ishhad) were proved by Ramjee, P. W. 3. There has been a difference of opinion in the findings of both the courts as to the amount paid by the 1st defendant to 2nd and 3rd defendants, the trial court holding that the 1st defendant only paid a sum of I. G. Rs. 250/-, while the 1st appellate court held that he paid I. G. Rs. 425/-.

In this second appeal the respondent is absent. Appellant''s advocate urges two legal points, viz., (1) that the talab-i-mowasibat (first demand) is not effective in that the demand as required by law has not been made and (2) that the talab-i-ishhad was not made before two witnesses which was necessary under the law governing pre-emption.

With respect to the first point, it may be observed generally that before any person can be entitled to a right of pre-emption he should declare his intention to exercise his right immediately on receiving the information of the sale, which is talab-i-mowasibat and with the least possible delay confirm his intention before witnesses by referring expressly to the fact that the talab-i-mowasibat had been made and he has made a formal demand either in the presence of buyer or the seller if he is in possession or on the premises, which are the subject of the sale. This demand is known as talab-i-ishhad. This rule is subject to the exception that where the talab-i-mowasibat is made in the presence of seller if he is in possession of the suit property, the purchaser or on the suit property itself, there is no necessity for the talab-i-ishad separately, as one demand before witnesses is considered to be equal to two demands. This being so, it is clear that though no special words or formula is necessary either for making the talab-i-mowasibat or talab-i-ishhad. the claim which a pre-emptor asserts should be unequivocal.

It has been held by a Full Bench of the Hyderabad High Court, to which my Lord the Chief Justice was a party, in the case of ''Kondeba v. Bhawani'', 34 D L R 315, that the language used for the talab-i-mowasibat should be such that the person to whom it is addressed should be able to understand it as an unequivocal demand for preemption. By the pre-emptor merely saying that ''I will pay the money and the land may be given'', it cannot be ascertained that he intended to make an unequivocal demand to pre-empt the land. There appears to have been a divergence of view in the above Full Bench case on the question whether in certain circumstances instead of two demands only one demand would be sufficient for the exercise of the right of pre-emption. My Lord the Chief Justice ha3 held the view that there should be two distinct demands as opposed to the view of Abu Syed Mirza and Abdul Aziz JJ. In this case, however, that question does not fall for decision on the facts of the case.

I shall now consider the second contention of the appellant''6 counsel, namely, that under the Muslim Law the talab-i-ishhad or where both the talab-i-mowasibat and Ishhad is exercised as one Talab and deemed sufficient in certain cases, should be made in the presence of at least two witnesses. In the ease of Imaviuddin v. Md. Rais-ul-Islam, 52 ALL. 1005, a Bench of the Allahabad High Court consisting of Sulaiman and King JJ., held at p. 1010 that though the Mohammadan Law of Evidence has been superseded by the Indian Evidence Act and no particular number of witnesses are now required for the proof of the fact (s. 134) the presence at the time of talab-i-Ishhad of at least two witnesses who can bear testimony should be satisfactorily proved. Following this authority and 4 Bengal Law Reports p. 471, Shripatrao J. also held in the case of Kishenlal v. Ramu, 36 reccan L. R. 182 that the proof of the presence of at least two witnesses is required although no particular number of witnesses is required to prove this fact.

In neither of the above referred cases, do I find any reason given for the proposition that the presence of two witnesses after the coming into force of the Indian Evidence Act or the Hyderabad Evidence Act is a condition precedent to the validity of talab-i-ishhad. The cases referred to in note (L) of s. 186 of Mulla''s 12th Edition p. 205 as supporting the view that the talab-i-ishhad should be made at least before two witnesses, do not, in my view, support this contention. In the case of Jadoo Singh v. Raj Coomar Baboo, 13 W. R. 177-4 Beng. L. R. A. C. 171, he question that fell for decision was whether it was necessary for talab-i-mowasibat to be made in the presence of witnesses and whether it should be made in any particular form, or whether at the time of talab-i-ishhad it was necessary to state that talab-i-mowasibat was made before invoking witnesses. On a question of fact, however, it was decided that there was nothing in the deposition of the witnesses who had been examined to show that they were called upon to witness the performance of talab-i-ishhad.

Kemp J., who agreed with the conclusions of Beyley J., stated with respect to talab-i-ishhad as follows:

With reference to the second and more important requirement of the Mohammadan Law, via., the talab-i-ishhad I am clearly of the opinion that the Mohammadan Law requires strict adherence to rules, however technical they may be. The plaintiff has not complied with those rules either in substance or in form. He did not state to the vendor, to the vendee, or on the land sold, that he was the shuffee, that he had already claimed his privilege of shuffa by malting the tullub-i-mowasibut, and that he again claimed it, calling upon others to be witness thereof.

The Court did not in that case consider how many witnesses are required to prove that fact. The case of Ramdular v. Jhwmach Lal, 17 W. R. 265 (Macpherson and Glover JJ.) was a case where though there were more than one witness to the talab-i-ishhad only one witness had been called. The decision, however, did not turn on the point whether it was obligatory for two witnesses to be present. In Ramdular v. Jhumack Lal, 8 Beng. L. R. 455, the point at issue was whether the invocation before the witnesses was in compliance with the strict rules of Mohammadan Law and it was held that the invocation before witnesses was proved. No question arose as to the minimum number of witnesses required before whom the invocation should be made.

All the cases referred to above were cases which were decided before the enforcement of the Indian Evidence Act 1 of 1872, which provided under s. 134 that no particular number of witnesses was required in any case for the proof of any fact. The law of evidence prior to the Indian Evidence Act was in a nebulous state and there was some legislation relating to the competency and compellability of witnesses. Sir George Rankin in his ''Background to Indian Law'' p. 112 observed that the Regulations of each of the three Presidencies had provided some rules regarding evidence and there was in certain parts customary law upon the subject, but neither the English Law of Evidence, nor the Hindu Law or Mohammadan Law were as such binding on the Company''s Courts. Although the Company''s Courts followed, though no doubt, mostly English Law, yet there was nothing to stop them from adopting the rules of customary law wherever they were found to accord to conditions prevalent in the country.

It appears to be that the necessary and important ingredient for the validity of talab-i-ishhad is that the pre-emptor should procure evidence and prove the fact that he has made the demand in exercise of his right of pre-emption. How this has to be proved is governed by the Muslim Law relating to proof. It will therefore be necessary to examine what the Muslim writers and Texts lay down in this regard. In the 2nd Edn. of Hamilton''s Hedaya p. 551 col. (1) para, 1, the requirements of talab-i-ishhad are stated in the following words :

The second mode of claim of shaffa is termed the Talb Takreer wa ish-had, or claim by affirmation and taking two witnesses; 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 Talb-Ish-had wa 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 Shaffee thus talcing some person to witness, his right of Shaffa is fully established and confirmed. The reason of this is, that both the buyer and seller are opponents to the Shaffee in regard to his claim of Shaffa; the one being the possessor, and the other the proprietor of the ground;- and the taking 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 a stranger.

There is no mention of the number of witnesses required but on the other hand the underlined words (here in italics) in the above passage being in singular would indicate that everyone witness might be sufficient.

The Advocate for the appellant, however, submits with reference to the Arabic text of Ainul Hidaya, vol. 2, p. 20, that the word used is "Fashhadoo"; that according to the grammar Mizan-o-sarf p. 16, in Arabic the word "Fashhad" indicates one witness, "Fashhada" for two witnesses and "Fashhadoo" for more than two witnesses. In Durrul Mukhtar, vol. 4, p. 126 (Kitabul Shafa-Chapter on Pre-emption) also the word "Fashhadoo" is used in dealing with talab-i-ishhad. Even according to this contention it does not appear that for talab-i -isbhad a minimum of two witnesses is required, as urged by him, in that the use of the word "Fashhadoo" would indicate the requirement of more than two witnesses. In other texts such as Macnaghten''s ''Principles and Precedents of Muslim Law'' 2nd Edn. (1860) p. 183, and Baillie''s Digest of Mohammadan Law (1865) p. 483, when, it is stated that by talab-i-isbhad or demand with invocation of witnesses is meant a person calling on witnesses to attest bis talab-i-mowasibat, or immediate demand, they are mainly directing their minds by the use of plural to the requirements of the proof under Mohamrnadan Law, as I will show presently.

The question naturally arises whether the requirements of the Mohammadan Law for the presence of witnesses is a procedural or substantive law; if substantive law it will have to be adhered to, if procedural it will be governed by the provisions of the Evidence Act:

"Hubstantive law," as observed by Salmond, "defines the remedy and the right, while the law of procedure defines the modes and conditions of the application of the one to the other" (Vide Salmond on Jurisprudence, 8th Edn. p. 497).

Although the distinction between substantive law and procedural law can easily be envisaged in theory, in practice, however, it is somewhat difficult to ascertain in certain cases what really pertains to substantive law and what will be deemed to affect procedure. The test will be whether the evidential fact which could properly belong to the category of procedural law, is in fact practically equivalent to a constituent element in the title of the right to be proved. Their Lordships of the Privy Council in Sabir Hussin v. Farzand Husan, 173 Ind. cas. 1 when dealing with certain questions of dower and marriage observed thus at p. 5 :

It remains, therefore, to consider the distinction drawn by the learned Judges in the present case between ''substantive rule of the Shia Law relating to marriage'' and what is variously called a ''canon of interpretation," a ''rule of construction'' and a ''rule of evidence''. Even where Muhammadan Law applies to the subject matter, the Courts in British India are governed by their own method and procedure and do not apply those rules of the Muhammadan Law which Mahmood J. in the case of Jafri Begum v. Amir Muhammad, 7 AH. 822 : 1885 All. W. N. 248 (F. B.) described as ''provisions which go only to the remedy, ad litis ordinationem, being matters purely of procedure as to array of parties, production of evidence, res judicata, and review of judgment, etc.

The question is whether the requirement of any number of witnesses is a question which is rightly within the purview of Muslim Law of Evidence or has it become part of the substantive law affecting the validity of the Talab-i-ishhad. By the due performance of Talab-i-ishhad is meant the calling on witnesses to attest the demand on the premises or from the parties and the fact that the right has been asserted. In the translation of Fatava Alamgiri by Mohammadulla in his book on Muslim Law of Pre-emption at p. 121 para. 56, the following passage relating to the above matter is relevant :

The invocation of witnesses is not required to give validity to the demand but only to provide the pre-emptor with proof, should the vendee deny the demand saying ''you did not demand your right, when you heard of the sale and nay yon''abandoned your right and rose from the meeting.

While on the other hand the pre-emptor asserts, ''I did demand'' and since under the law the word of the vendee may be trusted, it is necessary to call witnesses to attest the Talab-i-ishhad in order to give validity to the Talab-i-mowasibat. Hence it is required that the Talab-i-ishhad should be made before the vendee or vendor or on the subject of the sale and the person claiming the right of pre-emption should say in the presence of one or other

such and such a person has purchased the mansion (specifying its boundaries) and 1 am its pre-emptor, and have demanded pre-emption and now demand it, bear ye witness to this.

A similar statement also appears in the other texts such as Ruddul Mukhtar, Nihaya and Fatave Khazi Khan. From the underlined (here in italics) words, it will be seen that the basic requirement of the Talab-i-ishhad is to provide for the proof of the assertion of the Talab-i-mowasibat and the invocation of the witnesses was required because under the Muslim Law the word of the vendee would be trusted. It is for this reason that the invocation of witnesses at the time of the assertion of the right of Talab-i-mowasibat was required anticipating the denial by the vendee. The view was taken in the Full Bench of our High Court in 34 Deccan L. R. 315, as also in Imanuddin v. Md. Raisul, 52 ALL. 1005 that there is no necessity to invoke witnesses by any special formula ''be ar ye witness'' or some such words for the purposes of Talab-i-ishhad; it follows, therefore, that what is essentially required for the valid performance of a Talab-i-ishhad is, the repetition of the Talab-i-mowasibat which need not be made and invariably cannot be made before witnesses, and that it should be made before a witness or witnesses which would facilitate proof of the fact that the Talab was made. The manner in which this fact could be proved is provided for by the Muslim Law of Evidence. In Shajfh-e-Viquaya, vol. 3, Kitabushshahadat (Chapter on Evidence), p. 58 it is stated that:

Allah Vo Tala has ordained that in cases whether of property or otherwise such as relating to sale, mortgage, pledge, pre-emption, murder, marriage,Tailak (divorce)etc., one should procure two male witnesses and if two males are not present then one male and two females of his choice, and upon this basis it has been laid down that two male witnesses or one male and two females are required to prove the above matters.

From the foregoing it appears that the basis of talab-i-ishhad is to provide proof at the trial before the Khazi, namely, when the pre-emptor makes his third demand for the enforcement of his right to establish the fact that he made the talab-i-mowasibat. Wherever the Muslim Law has been applied to Muslims or others as in the case of pre-emption it has been modified considerably and as far as procedure which includes the mode of proof is concerned, it has been superseded by the Evidence Act.

When enacting s. 109, Hyderabad Evidence Act (corresponding to S. 134, Indian Evidence Act) which recognised (unlike the Indian Evidence Act) the necessity of preserving the rule of procedure under the Mohammadan Law for the proof of certain matters, it was specifically enacted that no particular number of witnesses shall be required for the proof of any fact except in the case of murder, nikha, divorce, mehar, tarka and khula, in which at least two witnesses would be necessary.

Applying the well-known principle of ''expressio unius personae vel rei est exclusio alterius'' (the express mention of one person or thing is the exclusion of another) it would appear that the deliberate omission from this sect ion to provide for the proof by means of at least two witnesses for the enforcement of a right of pre-emption while providing for other matters in which two witnesses were required under the Muslim Law is, in my view, significant in that the Legislature did not consider it necessary to require at least two witnesses for the proof of a pre-emptive right. In the case of Nasir Ali v. Abid Ali, the Judicial Committee in 35 Deccan L. R. 12 have clearly laid down that in any matter pertaining to proof the Courts are bound by the provisions of the Hyderabad Evidence Act and not by the rules of Hindu or Mohammadan Law. In that case their Lordships refused to apply the rule of Mohammadan Law that in a case where a person alleges that he is son of a particular woman he should also show that that woman did in fact at any time become pregnant.

From the above discussion it appears clear that the insistence on making the talab-i-ishhad in the presence of at least two witnesses, which under the general Muslim Law of Evidence, was only necessary to prove its performance was a matter governing procedure which has been replaced by the enactment of s. 109, Hyderabad Evidence Act. It is not, in my view, necessary for the performance of a valid talab-i-ishhad that it should be made before at least two witnesses, or any number of witnesses, but it would suffice if it can be proved that the Ishhad was made before a witness or witnesses for purposes of proving that fact. Now it will have been seen whether the Talab-i-Mowsibat was validly performed.

Having gone through the judgments of the two Courts below, I find that they have not dealt with the evidence relating to the talab-i-mowasibat and talab-i-ishhad, although with respect to the former they have merely stated that the demand was made in the presence of Ramjee, P. W. 3. It is, therefore, necessary to look into the evidence of P. W. 3 Ramjee, who states that Narahari''s house is contiguous with the suit property in the north. One day when the defendant Ranganath was constructing a window in the wall of his house, Narahari plaintiff asked defendant 1 why he was doing it, whereupon he informed the plaintiff that he had purchased the house. The plaintiff then said to defendant 1 that he should take whatever amount was paid by him for it and give him the house, and when defendant 1 replied that he had not purchased the house for giving it, the plaintiff turned to the witness, P. W. 3, and said:

See, Ranganath is refusing to give the house in your presence, you should be witness of this and should give evidence when required.

The plaintiff himself has not gone into the witness box to give evidence as to what happened immediately after he noticed that the defendant was constructing a window or in what words he made the first demand (talab-i-mowasibat) or who were all the witnesses present at the time of the talab-i-ishhad. In the absence of the plaintiff''s evidence, the only fact that is proved and attempted to be proved from the evidence of P. W. 3, is that be (plaintiff) merely offered the money which the defendant had paid in return for his getting the house. It will thus be seen that the plaintiff has not proved the valid performance of the Talabs for the exercise of his right of pre-emption, as laid down in 34 Deccan L. R. 315 (F.B.). In the result the appeal is allowed with costs and the plaintiff''s suit is dismissed.

Naik, C.J.

I agree.