Mt. Sarwari Begam vs Mt. Razia Khatun And Ors. on 16 November, 1928

Allahabad High Court
Mt. Sarwari Begam vs Mt. Razia Khatun And Ors. on 16 November, 1928
Equivalent citations: AIR 1929 All 158


1. This is a defendant’s appeal arising out of a suit for pre-emption under the Mahomedan law. Four items of properties were sold under the sale-deed. The plaintiff’s evidence was that she made the two preliminary:,demands in respect of the properties sold but the vendee refused to give the properties to her. At the time of the institution of the suit she left out one item and half of another item on the allegation that she herself was their owner and she asked for a declaration to that effect. The first Court dismissed her claim for preemption on the ground that it was not proved that the demands necessary under the Mahomedan law were made. He granted her a decree as regards the portion claimed by her as her own property. The lower appellate Court has upheld the finding that she was the owner of that portion of the properties which had been excluded from the suit and has further held that she made the two necessary demands. So far as the finding that the demands were actually made is concerned, that is a finding of fact and must be accepted.

2. The learned advocate for the appellant, however, urges that inasmuch, as the preliminary demands had been made in respect of all the four items the plaintiff was bound to sue for preemption to all these items and was not entitled to confine her claim to a portion only. The learned District Judge has pointed out that when the plaintiff came to know of the sale she could not wait, indefinitely to ascertain which houses belonged to her before making the immediate demand. She also made the second demand at an early date. It was before the institution of the suit that she came into full possession of the facts and; was therefore justified in confining her claim for pre-emption to two of the items only, and asking for a declaration as regards the remainder. It is contended before us that such a course is not permissible. No authority is cited in support of this contention. We are unable to accede to this argument. If such a contention were to prevail the result would be that a pre-emptor who subsequently becomes aware of the fact that her own property has been fraudulently included in the sale-deed cannot claim it as her own before instituting a suit and must offer to pay its price unnecessarily. We do not think that there is anything to prevent the plaintiff from not including in, the plaint the properties which really belonged to her. Even if she had made demands in respect of a larger number of properties and later on came to know that she had no right to pre-empt some of them she could undoubtedly exclude them from her suit.

3. The result therefore is that this appeal is dismissed under Order 41, Rule 11, Civil P.C.

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