JUDGMENT
1. This is a defendants' appeal arising out of a suit for pre-emption of a house situated in the City of Benares. It appears that one Lachhman Parsad originally owned a house which stood on the site on which the present house stands. On his death he was either succeeded by his two daughters or two daughters' sons, Chandraman Prasad and Bishunath Prasad, who were then minors. Sital Prasad, father of Chandraman, appears to have acted as their guardian. On the 8th of January 1901 Sital Prasad executed a usufructuary mortgage-deed of the house left by Lachhman Prasad in favour of the defendants for a sum of Rs. 125. The mortgage deed provided that the mortgagee would be entitled to demolish the house which then stood and re-build it and that the mortgagor would not be allowed to redeem the house without the payment of the costs of the new construction. Ever since 1901 the defendants had been in possession of this house and spent nearly Rs. 4,000 in building a new house on the old site. On Chandraman and Bishunath attaining majority they seem to have put forward some claim to this house and in order to settle this matter the defendants obtained two sale-deeds, one dated the 13th of June 1916 from Sital Prasad and Chandraman Prasad for a sum of Rs. 400 and another, dated the 7th of July 1916 from Bishunath Parshad of half the house for Rs. 125. The present suit was brought to pre-empt the first sale-deed. On behalf of the defendants the plaintiff's right to pre-empt, as well as the fact of his having made the necessary demands, were denied. It was further pleaded that the sale deed of the house had been taken with the advice of the plaintiff and that the plaintiff was actually estopped from bringing this claim. It was also pleaded that, inasmuch as the defendant had become a so sharer by virtue of the second sale-deed, dated the 7th of July 1916, he had a preferential right of claim over the plaintiff and the suit should be dismissed. The Court of first instance, holding that the plaintiff had actively assisted the defendant in taking the sale-deed in dispute and was estopped from putting forward his claim for pre emption, and, also holding that the plaintiff had failed to prove that he had made the demands in accordance with law, dismissed the suit. The plaintiff appealed from the decree of the first Court and the lower Appellate Court set aside that decree and decreed the suit. The defendants have some in second appeal to this Court and on their behalf the decrees of the learned Subordinate Judge is challenged. The learned Subordinate Judge, on the question of the performance of the demands, has set aside the finding of the first Court and recorded a finding that he had no reason to disbelieve the plaintiff's witnesses and has held that the plaintiff-appellant had proved the fact of his having made the: two demands. He has also hold that it is not open to the defendants to base their right under the second sale-deed, and that even if it were that deed confers no title on them.
2. So far as the question of fact is concerned, we are bound to accept the finding that the plaintiff did make the demands as he said he did, however perverse it may be, though we are constrained to say that, in our opinion, the finding arrived at by the learned Subordinate Judge, in view of the circumstance mentioned by the first Court, was perverse. There if, however, this difficulty in the way of the plaintiff. His ease was that, some ten or eleven months after the execution of the sale-dead, when he was sitting in his baithak and attending to his son who was lying ill on a bed he learnt of the sale from one Tulsi by means of questions and answers reduced to writing, and on hearing of it he used the following expression:-- "I have a right of pre-emption, how will Mangru and Mahngi take it?" This was all that he did on the occasion that he first heard of the sale. His case was that, subsequently, he went to the house in question and made the second demand as required by law. In our opinion, the expression used by the plaintiff does not amount to a valid first demand as required by law. All that the words used by him mean is, that he had a right of pre emption in that house and if he exercised that right it would be impossible for the defendants to retain that house. This amounted simply to a statement of fact that he had a right of pre-emption in that house. That he had a right is now found to be correct. But a person may have the right and yet not exercise it. A mere statement that he has a right cannot amount to a demand of pre emption, unless, perhaps, there be other circumstances which, coupled with that statement, may justify the inference that a demand was made. As was held in the case of Muhammad Abdul Rahman Khan v. Muhammad Khan 10 Ind. Cas. 770 : 8 A.L.J. 270, "To say I am the pre-emptor and my right extends to the land" is not sufficient to constitute a talab i-muasibut within the meaning of the Muhammadan Law. Also see Baillie's Muhammadan Law, Volume I, page 487 and Ameer Ali's Muhammadan Law, Volume I, page 724, 4th Edition. The point for our consideration is, whether the words which he used constituted the talab i muasibat either in express terms or by implication. Apart from the expression used by him, there are no other circumstances from which we can gather that, at the time when he says he made that statement, he intended to make an immediate demand for pre-emption. The subsequent demand might be valid but if the first demand was defective his suit is bound to fail. In our opinion, in this case the plaintiff has failed to prove that he made the first demand as required by strict Muhammadan Law. It is true that his claim was based on a custom of preemption but even under this custom the rules of Muhammadan Law were applicable and, therefore, the case is governed strictly by Muhammadan Law. In this view of the case this appeal succeeds. It is not, therefore, necessary to decide the other points. We accordingly allow the appeal, set aside the decree of the lower Appellate Court and restore that of the Court of first instance with costs throughout including in this Court-fees on the higher scale.