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Calcutta High Court
Jadunundan Singh vs Dulput Singh And Ors. on 21 March, 1884
Equivalent citations: (1884) ILR 10 Cal 581
Author: Mitter
Bench: Mitter, Maclean


Mitter, J.

1. We think that this appeal must fail. The lower Appellate Court has dismissed the plaintiff’s suit on the ground that the plaintiff had failed to prove that the second talub, i.e., the talub by invocation of witnesses, was properly made in accordance with the provisions of the Mahomedan law. The defect pointed out by the lower Appellate Court was that the pre-emptor did not invoke witnesses to bear testimony to the fact that he claimed the property as pre-emptor. In this second appeal, it is contended before us, that it was not necessary according to Mahomedan law, because on the evidence regarding the first talub, which has been believed by the Appellate Court, it was shown that the performance of the first talub was accompanied by the necessary invocation of witnesses, and in support of this contention, the case of Koromali v. Amir All 3 C.L.R. 166 has been cited. The decision, as reported in the Calcutta Law Reports, seems to a certain extent to support this contention, but if the decision of the lower Appellate Court upon this point, which was confirmed by this Court, be taken into consideration, it would appear that what was laid down is (and this is also in accordance with the Mahomedan law), that if the first talub be made in the presence of either the seller or the purchaser, or be made at the premises sold, and then invocation of witnesses takes place, a second talub by invocation of witnesses would be unnecessary. That is laid down in page 484 of “Baillie’s Mahomedan Law.” At page 483, Edition of 1865, he says: “To give validity to the talub-ish-had, it is required that it be made in the presence of the purchaser, or seller, or at the premises which are the subject of sale.” This shows that it is essential that this talub should be made in the presence of the purchaser, or the seller, or at the premises which are the subject of sale. And then at page 484 he says: “The talub-i-mowashibat, or immediate demand, is first necessary; then the talub-ish-had, or demand with invocation, if, at the time of making the former, there was no opportunity of invoking witnesses, as, for instance, when the pre-emptor, at the time of hearing of the sale, was absent from the seller, the purchaser, and the premises. But if he heard it in the presence of any of these, and had called on witnesses, to attest the immediate demand, it would suffice for both demands, and there would be no necessity for the other.” That being so, we think that the contention raised before us on behalf of the appellant fails; because in this case it is not shown that the first talub was made in the presence of either the seller, or the purchaser, or at the premises which constituted the subject of the sale. The appeal will be dismissed with costs.

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