JUDGMENT Sulaiman, J.
1. This is a plaintiff's appeal arising out of a suit for pre-emption under the Mahomedan law. The main plea raised by the defendants which has prevailed with the Courts below is that according to the plaintiff's own evidence the second demand was not performed according to law.
2. It appears that the plaintiff heard of the sale from one Banwari Lal and made his first demand there and then. He then took Banwarilal with him to the vendee who was on the premises and made the second demand to the vendee in the presence of Banwari Lal. and a servant of the vendee who was present there at the time. The plaintiff had not brought this witness with him as he had brought Banwarilal. The plaintiff's statement shows that although in making the second demand he referred to the first demand having been made by him promptly, he did not charse them (the witnesses) to bear witness to the demand.
3. The plaintiff hag coma up in appeal to this Court and on his behalf it is contended that the omission to ask the witnesses to bear witness was not fatal. We reserved our judgment in order to consider some of the original authorities.
4. The Mahometan law of pre-emption, like every other branch consisted of both substantive and adjective laws. So far as the rules of evidence and procedure go they have been superseded in India. But unfortunately in some cases the distinction has not been kept well in mind with the result that the Mahomedan law of pre-emption has in some respects become highly technical.
5. In the chapter on pre-emption, in Durrul-Mukhtat, Vol. 4, when illustrating how the second demand is to be made the words "Be ye witness thereof" are no doubt quoted, but it is nowhere expressly stated that these words are indispensable. On the other hand, when dealing with the third demand, which is made before the Kazi, that is the suit it self, it is clearly mentioned that the Kazi should inquire from the pre-emptor as to his having made the first demand and then to enquire with regard to the second demand, how it was made in whose presence istishhad was made and whether he in whose presence it was made was nearer than the other.
6. At that place it is not expressly mentioned that the Kazi should inquire whether he had definitely asked the witnesses to bear testimony. It is also noteworthy that in the same chapter it is stated at two places that the second demand can be made "by means of writing a letter or sending a messenger.' Is is obvious that in the case of a letter there may not be an invocation of the witnesses in the sense of asking them expressly to bear witness. Similarly in Fatawai Alamgiri, Vol. 4, Ch. 3, which deals with pre-emption although those words are mentioned when illustrating how the second demand is to be made they are not repeated in the passage mentioning how at the time of third demand the Kazi is to make inquiries from the pre-emptor; there all that he is required to ask is:
How did he make the second demand, whom he did appoint witnessess and whether in whose presence he appointed witnesses, was nearer than the other.
7. It is further expressly mentioned that the taking of witnesses is necessary for the purpose of strengthening the claim. In the Hedayah, Vol. 6, on Pre-emption which in Hamilton's English translation is shown as Book 58, Oh. 2, the passages are translated as follows:
It is therefore necessary afterwards to make the talabe istishhad or takreer which is done by the shaft 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 the shaft thus taking some person to witness his right of shafa which i3 fully established and affirmed.
8. It is there pointed out that the second demand is requisite 'because evidence is wanted in order to establish proof before the Magistrate." The illustration is in the following words:
Such a person has bought such a house of which I am the shafi, I have already claimed by privilege to shafa, and now again claim it; be therefore witness thereof.
9. Neither in the translation nor in the original is there any passage which clearly states that the omission to use the words "Be therefore witness thereof" would be fatal.
10. Baillie in his Digest of Mahomedan law, Vol. 1, Book 7, Oh. 2, p. 489, has noted that the invocation of witnesses is not required to give validity to the second demand but only in order that the pre-emptor may be provided with proof in case the purchaser should deny the demand. He has also noted on the strength of Darrul Mukhtar that the second demand may be made by a letter or messenger. In illustrating how the second demand is to be made "Be ye witness to this" are noted. But when dealing with the third demand before the Kazi at p. 492 he also stated that the Kazi ought to inquire in the following: words:
When this has been explained he is to ask him about the talabe takreer or confirmatory demand, how it was and before whom he made the demand and whether he was nearer or more remote 'than another in the manner already mentioned.
11. Bailie has not stated that the omission of the words "Be ye witness to this" would be fatal.
12. Mr. Ameer Ali in his Mahomedan law. Vol. 1 (Edn. 4, p. 725) also quotes the method in which the second demand is to be made and he notes on p. 726 that the talabe istishhad may in certain circumstances be made by means of a letter or through a messenger. On the same page he has also stated:
It has been sometimes held that the demand must be in the form given in the Hednyah. but that does not seem to be the correct view of the law; what the latter requires is that the demand must be to that effect and no more.
13. In lswar Chandra Saha v. Mirza Nisar Hussain [1864] W.R. 351 Civ it was held that where after having performed the first demand the pra-emptor expressed his desire to purchase and offered money in the presence of the witnesses but had not called upon these persons to be witnesses to his acts there was no valid istishhad. No authority was quoted for the basis of that decision and probably the learned Judges had nothing before them except Macnaghten's Precedents. The case of lswar Chandra Saha v. Mirza Nisar Hussain [1864] W.R. 351 Civ appears to have been followed in its general terms in some other cases to be found in the Bengal Law Reports and the Weekly Reporter.
14. The first case in which the point arose in this High Court is that of Chhotu v. Huzain Bakhsh [1893] A.W.N. 101. Edge, C. J., and Aikrnan, J., distinctly laid down that where the two demands were made and although on the occasion of talabe is tishhad there was no specific invocation of witnesses yet the witnesses had been provided for the purpose of accompanying the pre-emptor and were present on the occasion of the making of the demand, there was a sufficient invocation in substantial compliance with the requirements of the Mahomedan law. That case was a clear authority for the proposition that it was not absolutely necessary to address the witnesses saying : "Be ye witness to this."
15. In Muhammad Yunus Khan v. Muhammad Yusuf [1897] 19 All. 334 the passage in Bailie's Mahomed an Law that invocation of witnesses is not required to give validity to that demand, but only in order that the pre-emptor may be provided with proof in case the purchaser should deny the demand was quoted with approval and made the basis of the decision.
16. The point arose again in Ganga Pra-sad v. Ajudhia Prasad [1905] 28 All. 24 in which another Bench considered that the mere fact that the demands were made in the presence of witnesses taken to the spot, without being asked to be witnesses to the demand, was insufficient. Reliance was placed on the passage in the Hedayah and the case of lswar Chandia Saha. Unfortunately the attention of the learned Judges was not drawn to the previous case of Chhotu v. Husain Baksh nor were any other authorities cited.
17. The next case of this High Court is that of Ahmad Hakim v. Muhammad Hikamatullah A.I.R. 1927 All. 289, in which it was held that where the plaintiff bad made the first demand in the presence of the witnesses and had asked them to accompany him to the vendee, and made the second demand in their presence, their attention being drawn to it, "the mere omission to ask them in express terms to bear testimony would not be fatal." Although on the facts Ganga Prasad's case was distinguished, it is quite clear that if that were considered to be an authority for the proposition that it was absolutely necessary that the witnesses should be specifically called upon to bear witness to the second demand being made, that case was not followed. Ahmad Hakim's case A.I.R. 1927 All. 289 is certainly an authority for the view laid down in Chhotu's case that the specific invocation of witnesses calling upon them to be witnesses to the demand was not an absolutely necessary and indispensable requisite.
18. It seams to matter little whether the witnesses are brought by the pre-emptor from his house or are picked up on the way or chosen from those present with the vendee. What is necessary is that in order to have proof that the second demand was duly made there ought to be at least two witnesses available to support the pre-emptor. Their mere presence on the scene, if they were inattentive and did not hear the demand being made, so as to be unable to give evidence in support of it, would of course be insufficient; but so long as they heard the demand being made and can bear testimony to it, there seems to be no defect in the demand. To hold otherwise would be to reduce the law to an absurd technicality.
19. Following the rule laid down in Chhotu's case and Ahmad Hakim's case, we are of opinion that it was not absolutely necessary for the pre-emptor to use words like "Be ye witness to this," addressed to the witnesses at the time of the second demand; but that it must be fully established that there were at least two witnesses present on the occasion who heard the demand and can bear witness to the fact when it is denied by the vendee. The Mahomedan law of evidence has been superseded by the Evidence Act and no particular number of witnesses are now required for the proof of the fact: Section 134. Although therefore it is not absolutely necessary to produce both these witnesses, the fact that there were such witnesses who can bear testimony must however be satisfactorily proved.
20. Before disposing of the appeal we accordingly send down the following issue for a finding on the evidence that is already on the record:
Was the second demand made in the presence of two witnesses (other than the pre-emptor and the vendee) who heard the demand being made so as to be able to bear witness to it?
21. The Court below should return its finding within two months. On return of the finding the usual ten days will be allowed for objections.