The demands for pre-emption must adhere to the strict requirements of the Mahomedan law, and the failure to properly represent a party can render a contract inconclusive.

JUDGMENT

Mukerji, J. - The plaintiffs are the appellants in this appeal. They instituted the suit which has given rise to this appeal for recovery of possession on declaration of their right of pre-emption in respect of a 4 annas share in a tank with its banks. The entire tank with its banks at one time belonged to the plaintiffs who in Sravan 1325 sold a 6 annas share of the same to defendant 1. There was a condition in the sale-deed, which, translated literally, runs:

Be it mentioned that if any necessity arises for you (i.e., vendees) to sell the tank and its banks, you shall not be entitled to sell the same anywhere else : on receipt of proper price you will give the same to us (i.e., the vendors); and also if any necessity arises for us to sell them instead of selling them elsewhere we shall sell them to you on receiving proper price.

2. The plaintiffs' case was that in violation of this stipulation defendant 1 sold a 4 annas out of the share purchased by him to defendants 2 to 6, and coming to know of it they made the necessary demands, namely, the talab-i-mowasibat and the talab-i-ishtishhad and then instituted the suit.

3. Defendants 3, 4 and 5 contested the suit. Their allegations were that defendant 6 was a minor and was not properly represented, that there was no contract for re-sale such as was alleged on behalf of the plaintiff, that the defendants were bona fide purchasers and that the formalities requisite for the demands for pre-emption were not observed.

4. The minority of defendant 6 was proved and he not being properly represented the Munsif, holding that the requisite demands had been made by the plaintiffs, gave them a decree for 5/6ths share in the property, namely, the 4 annas share of the tank and its banks. He dismissed the suit as against defendant 6. The Subordinate Judge on appeal has dismissed the entire suit.

5. The plaintiff's first contention relates to the sufficiency of the demands. The position, so far as this matter is concerned, is this : The Subordinate Judge found the talab-i-ishtishhad was invalid inasmuch as it was not proved that when this demand was made there was a reference to the talab-i-mowasibat, and that under the law an express reference to the same is necessary. As regards the talab-i-mowasibat he was of opinion that of the three witnesses, 2, 3 and 4, who were called on behalf of the plaintiff on his point, the first did not really prove it and the last one could not be relied on and that the second witness proved that one of the plaintiffs only offered Rs. 100; and did nothing else. An examination of the evidence of this witness, however, reveals a good deal more than what the Subordinate Judge has referred to in this way. He seems to have missed the point which is apparent on the face of the evidence of this witness, that the demand was made on the banks of the tank and immediately as the plaintiffs came to know of the fact that defendant 1 had sold to the other defendants. On this point the argument that has been advanced on behalf of the appellants is that in the circumstances disclosed there was no necessity for a second demand, and reliance was placed on their behalf in this respect on the following passage in Mr. Ameer Ali's Muhammadan Law, Edn. 4, Vol. 2 p. 727:

But the talab-i-ishtishhad may be combined with the talab-i-mowasibat, e.g., if at the time of the talab-i-mowasibat, the pre-emptor had the opportunity of invoking witnesses in the presence of the seller or the purchaser or on the premises to attest the immediate demand, it would suffice for both demands, and there ?would be no necessity for the second.

6. This proposition has received judicial recognition in the case of Nundo Pershad Thakur v. Gopal Thakur [1884] 10 Cal. 1008 in which Garth, C.J., Beverley, J., concurring, quoted in support of it Futawa Alamgiri, (V 268) and said:

The talab-i-ishtishhad is only necessary if at the time of making the talab-i-mowasibat or immediate demand there was no opportunity of