P L D 1964 Dacca 640 (PLP)

In Hedaya, Second Edition, page 550, it is observed "Claims to Shaffa are of three kinds ; the first of these is termed talbe‑mawasibat, or immediate claim, where the Shafee prefers his claim the moment he is apprised of the sale being concluded, and this it is necessary that he should do, insomuch that if he make any delay his right is thereby invalidated, for the right of Shaffa is but of a feeble nature, as has been already observed, and the Prophet, moreover, has said the established in him who prefers his claim without delay. If the Shafee receive a letter which, either in the beginning or the middle, apprises him of the circumstances of his Shaffa, and he read it on to the end, his right of Shaffa is thereby invalidated. Many of our modern doctors accord in this opinion, and it is in one place recorded as the doctrine of Muhammad,"

8. In Baillie's Digest of Muhammadan Law, Part I, Second Edition, at page 487, there is the following observation in which the law on the point is stated :‑ "The right of pre‑emption is founded on contract and neighbourhood, is confirmed by tulub, or demand, and ish‑had, or invocation, and is perfected by taking possession. The demand is of three kinds, tulub‑moowathubut, or immediate demand, tulub tukreer, or confirmatory demand, also styled tulub‑ish had, or demand with invocation, and tulub tumleek, or demand of possession also styled tulub khusoomut, or demand by litigation. By tulub‑moowathubut is meant, that when a person who is entitled to pre‑emption has heard of a sale, he ought to claim his right immediately on the instant (whether there is any one by him or not), and when he remains silent without claiming the right, it is lost."

9. The cases reported in I L R 1 All. 283, I L R 1 Cal. 383 and 39 I A 101 also support the view that talabe‑mowasibat should be made as soon as the fact of sale is known to the claimant otherwise the right is lost. In the case of Alt Muhammad v. Taj Muhammad (I L R 1 All. 283), it has been stated: ‑ "The right of pre‑emption is not a strong right and it appears to us that anyone claiming it should be held bound by the conditions of the Muhammadan Law, and should promptly assert his right of pre‑emption by the immediate demand. It is not surely the duty of the Courts to enlarge the conditions under which so inconvenient and sometimes oppressive right can be asserted." The facts in the case of Jarfan Khan v. Jabbar Mia (I L R 10 Cal. 383), were that the plaintiff on hearing of the sale from his wife entered his house, opened his chest, took money, called the witnesses, proceeded to the premises that is subject of the sale and made the demand for pre‑emption. It was held that plaintiff was not entitled to pre‑emption as he did not make the demand or perform the ceremony of talabe‑mowasibat immediately upon hearing of the sale.

10. In the case of Jadu Lai Sahu and others v. Maharaji Janki Koer and others (391 A 101), the following observation was made by their Lordships of the Privy Council:‑

"The Mussalman Law insists that the first formality technically called the immediate demand should be observed by the pre‑emptor or someone on his behalf immediately on receipt of the news of the sale otherwise the right of pre emption falls to the ground."

11. In the present case, plaintiff did not make the immediate demand, that is, he did not perform the ceremony of talabe‑mowasibat immediately on coming to know of the sale in Q the Registration office, but he went to the land at the distance of 2 miles and there made the claim. As the talabe‑mowasibat was not made instantly on coming to know of the sale, the right of pre‑emption was lost.

12. It has been further contended by the learned Advocate on behalf of the appellant that there was also delay in making the first demand as well as second demand, because, he made these demands on the 8th Aswar, 1364 B. S. corresponding to 23‑6‑1957, while he came to know of the registration of the kabala on 22‑6‑1957. The plaintiff and his witnesses deposed that they came to know of the kabala on the 8th Aswar, 1364 B. S. which corresponds to 23‑6‑1957. According to the learned Subordinate Judge, both the talabs were made on the date of the registra tion of the kabala that is on 22‑6‑1957 corresponding to 7th Aswar, 1364 B. S. and that through mistake 8th Aswar was confused as the date of registration and that for this reason, plaintiff and his witnesses deposed that demands were made on the 8th Aswar, 1364 B. S.

13. Mr. Amirul Islam Chowdhury, on behalf of the res pondent has taken the position here that demands were made actually on the 8th Aswar, 1364 B. S. corresponding to 23‑6‑1957. But this cannot improve the position of the plaintiff as the fact remains that ralabe‑mowasibal was not made instantly at the registration office on hearing of the sale.

14. Mr. Chowdhury has further contended in reply that the question of delay in making talabe‑mowasibat cannot arise at all in this case, as plaintiff made it on the 8th April 1957, on coming to know of the sale and on seeing defendant No. 1, scattering paddy seeds in the land. It is admitted that the kabala was not registered at that time. According to the provisions of section 53 of the Transfer of Property Act (Act IV of 1882) a sale of the property of the value of Rs. 100 and upwards is not complete unless made by a registered document. According to Muhammadan Law, a sale is an exchange of property for property with the mutual consent of the parties. The exchange consists in payment of price by the vendee to the vendor and delivery of possession by the vendor to the vendee.

15. The learned Advocate on behalf of the respondent has contended that the question whether a sale is complete or not is to be determined by the principles of Muhammadan Law, and that if a complete sale is effected under that law, as where the price is paid and possession is delivered, the right of pre‑emption will arise, although the sale may not be complete under the Transfer of Property Act. In support of this contention, reference has been made to the case of Naresh Chandra Dutta v. Gireesh Chandra Das (I L R 62 Cal. 979). In that case the following observations have been made as to the point of time when a sale can be taken to have been effective: . there may be three points of time at one or other of which the sale can possibly be taken to have been effected; the first is the point of time at which a part of the con sideration money having been paid the vendor put the vendee in possession, the second, when the transfer became operative under section 54 of the Transfer of Property Act; and the third any other point of time at which the parties may have intended the sale to be effected." But in that case regarding the third of these contingencies there was no indication in the pleadings. But in the present case it is clearly stated in paragraph 2 of the plaint that the sale was complete on 22‑6‑1957. Paragraph 2 of the plaint runs as follows: "

2. It has recently come to the notice that defendant No. 2 sold the land of the following description secretly to defendant No. 1 for Rs. 200 on the 29th Falgoon, 1363 B. S. corres ponding to 13‑3‑57, without the knowledge of the plaintiff. The sale deed was presented in the office of the local Sub- Registrar on the 14th March, 1957 and was found registered on the 22nd June, 1957 in the name of defendant No. 1 vide Deed No. 3957, Pages 181‑182 Column

31. In the circum stances the land in question has, therefore, been legally transferred to defendant No. 1 by defendant No. 2 on the 22nd June, 1957." After making the case in the plaint that the sale was complete on 22‑6‑1957, plaintiff at this stage of hearing the second appeal, cannot resile from that position and assert that the sale was complete on 8‑4‑1957. In the lower appellate Court also, it was the case of the plaintiff that the sale was not complete on 8‑4‑1957. The present suit is against the vendor and the vendee. So the sale can be regarded as complete only after registration of the kabala on 22‑6‑1957. This view is supported by the case of Nares Chandra Datta v. Gireesh Chandra Das already referred to by Mr. Chowdhury. It has been laid down in that case that the point of time at which the transfer of immovable property valued at Rs. 100 and upwards is to be effective under section 54 of the Transfer of Property Act as regards third parties, is when the deed of transfer can be said to have been registered, although before that date the vendor on receipt of a portion of the con sideration had put the vendee in possession of the property.

16. The right of pre‑emption can arise only after a valid and complete sale. In the Hedaya, 2nd Edition, page 550, it is stated: "The privilege of Shaffa is established after the sale ; . , . " It is also stated in the same page that talabe‑mowasibat is to be made the moment the claimant " . . . . . is apprised of the sale being concluded . . . ."

17. In Mulla's Muhammadan Law 13th Edition, page 214, the following observation appears :‑ "The right of pre‑emption arises only out of a valid, complete and bona fide sale."

18. The talabe‑mowasibat is of no effect if it be made before) the completion of the sale. For all these reasons, talabe‑mowasibat made on 8‑3‑1954, cannot be regarded as valid.

19. Mr. Chowdhury has also contended that the finding as to the promptness of the demand is a finding of fact which can not be interfered in second appeal. He has referred to the same case of Naresh Chandra Datta v. Gireesh Chandra Das in support of this contention. But the facts of that case are not similar to the facts of the case before us. In that case, the Munsif decreed the suit holding that the first demand was made promptly. On appeal, the learned Subordinate Judge held that the first demand was not made promptly and dismissed the suit. The High Court in second appeal held that as the element of promptness was found against the plaintiff, which was a finding of fact, the suit was rightly dismissed. In the present case the trial Court held that talabs were not made at all. The lower appellate Court held that the talabs were made promptly. But the finding of the learned Subordinate Judge that talabs were made promptly is not based on evidence. Plaintiff did not make the talabs‑mowasibat instantly on coming to know of the sale. A finding of fact by the lower appellate Court based on no evidence is not binding is second appeal. The learned Advocate for the appellant has also contended that the suit was liable to be dismissed as the plaintiff did not make the claim for pre- emption with regard to the entire kabala lands. A suit for pre‑emption must include the whole interest comprised in the transfer to the buyer. The law on the point has been thus stated in the following paragraph of Mulla's Muhammadan Law 13th Edition, page 226:‑

"Where the property is sold to a single buyer, a person claiming to pre‑empt must pre‑empt the whole interest com prised in the transfer to the buyer. A suit which does not ask for pre‑emption of the whole of such interest is defective, and should not be entertained." The plaint in the present case indicates that the claim was for the entire kabala lands. The learned Subordinate Judge on discussion of the evidence found that plaintiff claimed for pre emption with regard to the entire properties. Plaintiff stated once in his evidence that his claim was with regard to the entire lands, but he again stated that it was with regard to a portion of the lands. The Munsif held that the claim was for portion of the lands.

20. The learned Advocate on behalf of the appellant has referred to the case of K. M. Perera v. H, G. Martin Dias ((1958) 10 D L R (P C) 1), in support of the contention that the finding of fact arrived at by the trial Court cannot be disturbed by the first appellate Court. It has been laid down in that case that it is only on arrest occasions and in circumstances where the appellate Court is convinced by the plainest considerations, that it would be justified in finding that a trial Judge had formed a wrong opinion. But when the appellate Court is so convinced, is entitled and indeed bound to give effect to its conviction. The above mentioned case does not state that the first appellate Court can in no case interfere with the findings of fact arrived at by the trial Court. In this case, the learned Subordinate Judge camel to the finding that the claim for pre‑emption was with regard to entire kabala lands. At there is evidence for this finding, he could disagree with the view of the trial Court that this claim for pre‑emption was with regard to a portion of the kabala lands. This, however, will not affect the result of the appeal which is to be allowed for the reasons already stated by me. The appeal is allowed with costs. The judgment and decree passed by the learned Subordinate Judge are set aside. The judgment and decree passed by the learned Munsif are restored. S. Q. Appeal allowed.