JUDGMENT Sulaiman, J.
1. This is a plaintiff's appeal arising out of a suit for pre-emption under the Mahomedan law. On 25th October 1922 the plaintiff's sister Mt. Rabia Begam executed a dead of exchange in favour of the defendant Haji Mohammad Saleh Khan in which shares in 12 villages were transferred to him in return for a bigger share in another village transferred by him to her. There was another deed of exchange dated 5th December 1922 between Haji Saleh Khan and Haji Yusuf Khan. Two suits for pre-emption were instituted by the plaintiff in respect of these two transactions. In these deeds of exchange there was a condition for the annulment of the transaction at the option of either party. The plaintiff alleged that he had made demands as required by the Mahomedan law, and that he was entitled to pre-empt half of these properties because he was a cosharer on the same footing as the transferees. He also alleged that the real consideration was Rs. 12,000 and not Rs. 20,000. The claims were resisted by the defendants on the ground that the deeds of exchange on account of the reservation clause were not pre-emptible under the Mahomedan law, it was further pleaded that the demands required by the Mahomedan law had not been performed under that law, and lastly it was alleged that the consideration entered in the deeds was genuine.
2. The learned Subordinate Judge has dismissed the claim holding that the conditional transfer was not pre-emptible, and has also held that the demands were not proved to have been duly performed.
3. With regard to the question of the performance of the demands, there is one point in favour of the plaintiff and that is that before even the deed of exchange was executed when he heard of the intention to exchange he had sent notice by means of a registered post-card, dated 6th September 1922 to his sister warning her not to transfer her share and informing her that in case it was transferred he would pre-empt the transfer. The plaintiff however did not go into the witness box, and relied on the evidence of his general attorney and two witnesses. The defendant went into the witness box and denied the performance of the second demand made to him. The plaintiff had 'attempted to show two second demands one made to the transferee and the other at the property. As we are convinced that the suit must fail on the question of law, it is unnecessary to consider the oral evidence at length.
4. The deeds of exchange contained the following covenants:
From this date the parties became the permanent owners in possession of their respective rights in the property exchanged on this condition that both the parties shall have powers to cancel the exchange at their will during their lifetime and to enter into possession of their respective properties, as they had been before the execution of the deed of exchange, Whenever they feel any deviation, loss, inconvenience or difficulty in the arrangement which has been made for the facility of management of the property exclusively held by them, or find that the object for which this exchange and arrangement has been made is not fulfilled the parties shall abide by this condition. This condition should not be binding upon their heirs and representatives.
5. It is quite clear that the deeds of exchange reserve an option to both the parties to annul the transaction and get back the properties transferred in their lifetime. This therefore amounted to a conditional sale and not an out and out absolute sale which would completely extinguish the rights of the transferor. In Vol. 3, Ch. 38, p. 559 of Hamilton's Translation of the Hedaya, the rule of law is stated in the following words:
It cannot take place with respect to a property sold under a condition of option. If a man sell his house under a condition of option the privilege of shaffa cannot take place with respect to that house, the power reserved by the seller being an impediment to the extinction of his right of property : but when he relinquishes that power, the impediment ceases, and' the privilege of shaffa takes place, provided the shaffi prefer his claim immediately. This is approved.
6. Under the Mahomedan law so far as the rights of pre-emption go sales and exchanges are treated on the same footing. It therefore follows that even a conditional exchange with a reservation entitling either party to take back the property would not give rise to a right of pre-emption.
7. As laid down in the Full Bench case of Began v. Muhammad Yaqub [1894] 16 All. 344 the Muhammadan law is to be applied in considering whether or not a right of pre-emption arises. The present claim being under the Mahomedan law, it is quite clear that under that law it was not a complete transfer extinguishing the rights of the parties and giving a right of pre-emption. We accordingly agree with the view taken by the Court below that no suit for pre-emption can be maintained.
8. The learned advocate for the appellant has argued that Haji Yusuf Khan has since died and the option has therefore-come to an end. He has alleged that the plaintiff should therefore be given a. decree as the transfer has already become absolute. We cannot accept this contention. On the date when the demands are alleged to have been made the claim was premature and no right of pre-emption had accrued to the plaintiff. If at a subsequent stage a right of pre-emption accrues there are to be fresh demands and a fresh claim for preemption. This follows from the last sentence in the passage quoted from the Hedaya.
9. In this view of the matter, we consider it unnecessary to go into the evidence regarding the true consideration. Both the appeals are dismissed with, costs.