Full Judgment
Aikman, J.
1. This is an appeal by the defendant vendee in a suit for pre-emption which was based on the Muhammadan law. The Court of First Instance found that the plaintiff pre-emptor had failed to prove that he had performed the necessary ceremony talab-i-mawasibat or making immediate assertion of his rights as soon as he heard of the sale. That Court further found that the plaintiff when making the talab-i-ishtishhad; or demand with invocation of witnesses did not say that he had made the immediate demand. On these grounds the plaintiff's suit was dismissed. The plaintiff appealed. The learned Subordinate Judge found that the plaintiff had proved that he had made an immediate demand. This demand was not made in the presence either of the seller or of the purchaser or on the premises, and therefore the demand with invocation of witnesses was necessary. The learned Subordinate Judge found that, as the same witnesses were present at the time when the immediate demand was made and at the time when the talab-i-ishtishhad was made, it was unnecessary for the pre-emptor to repeat the immediate demand. He therefore reversed the decision of the Munsif and gave the plaintiff a decree. I may point out that, as there were various other pleas raised by the defendant vendee, it was improper for the Lower Appellate Court to decree the plaintiff's suit merely on the ground that the defendant's plea as to non-fulfilment of the necessary requirements of Muhammadan law had failed. The defendant comes here in second appeal.
2. In my opinion the appeal must succeed. In the case of Nundo Pershad Thakur v. Gopal Thakur I.L.R. 10 Cal. 1008, it was held by Garth, C.J., and Beverley, J., that when a person seeking pre-emption had performed the talab-i-mawasibat in the presence of witnesses and as soon as possible on the same day in the presence of the same witnesses demanded his right from the vendor and purchaser, it was unnecessary that he should again state when making his demand that he had declared his right as soon as he heard of the sale, that is, that it was unnecessary for him to make any reference to his immediate demand. The present case is on all fours with that case. But that case was dissented from and overruled by a Full Bench of the Calcutta Court in Rujjub Ali Chopedar v. Chundi Churn Bhadra I.L.R. 17 Cal. 543, which latter case has been followed by this Court in Akbar Husain v. Abdul Jalil I.L.R. 16 All. 383, and in a recent case Abbasi Begam v. Afzal Husen I.L.R. 20 All. 457. That these latter rulings are correct is, in my opinion, clear from the definition of talab-i-ishtishhad given on p. 489 of Baillie's Digest of Moohummudan Law (2nd edition). By talab-i-ishtishkad,' says that learned author, is meant a person calling upon witnesses to attest his taiab-i-mawasibot or immediate demand. ' It appears to me impossible to invoke witnesses to attest the fact that an immediate demand has been made without making some reference to that immediate demand.
3. The learned Counsel for the respondent argues that the talab-i-ishtishhad is merely a rule of evidence according to the Muhammadan law and is no longer of any validity. Be that as it may, I am bound to follow the decisions of this Court to which I have referred.
4. For the above reasons I allow this appeal, and, setting aside the decree of the Lower Appellate Court with costs, restore that of the Court of First Instance. The appellant will have his costs of this appeal.