JUDGMENT
Knox and Blair, JJ.
1. This is an appeal from an order of remand passed under Section 562 of the Code of Civil Procedure. The plaintiff, who is respondent before us, is seeking to enforce a right of pre-emption which he claims under the Muhammadan law. The Court of First Instance found that the plaintiff had not performed certain rites and ceremonies which that Court considered necessary before he could enforce the right of pre-emption claimed. It therefore dismissed the suit. On the matter going into appeal, the Appellate Court dissented from the view taken by the Court of First Instance, considered that all the essential requisites under the Muhammadan law had been complied with, and remanded the case under the order which is complained of in this appeal for determination upon the merits.
2. In appeal before us, it is now contended that the order of remand is bad on two grounds, the first being that the talab-i-ishtishhad was in the present case made to the vendee, who had not, at the time when the demand was made, obtained possession of the land over which the respondent seeks to enforce his pre-emptive rights; the second is that the demand is bad, inasmuch as it was not made by the pre-emptor himself, but by an agent. The main authority for the former of these contentions is based upon the argument that the procedure in such matters laid down by the Durrul Mukhtar, which appears to be of a more liberal and lax nature, differs from the stringent rule laid down upon the same subject in the Hidayah, and it is urged that where these two are at variance, the Hidayah is the authority which should be followed by us. We have not before us the passage from the Hidayah, but we were referred to a note (g) to be found in the Tagore Law Lectures, 1873, at page 522, in which it is given as a quotation from the Fatawa-i-Alamgiri, vol. 5, p. 267. That passage is as follows: “It is therefore necessary afterwards to make the talab-i-ishtishhad wataqrir, which is done by the Shafi taking some person to witness either against the seller, if the ground sold be still in his possession, or against the purohaser or upon the spot regarding which the dispute has arisen,” and we were also referred to the precedent Chamroo Pasban v. Puhlwan Rai 16 W.R. 3, as an authority for the proposition that the talab-i-ishtishhad to be valid must be made in the presence of the vendor or vendee who may be at the time when the demand is made in possession of the premises, the subject-matter if the pre-emption. The case cited is not a very full and clear authority. The learned Judges who decided it had before them a case in which no demand had been made either in the presence of the vendor or vendee, and their attention was not directly brought to bear upon the question whether the demand in order to be valid could only be made before the parson in possession at the time of demand. This is really all the authority upon which this contention rests. We have, on the other hand, a chain of decisions beginning with a case of Jhootee Singh v. Komul Roy 10 W.R. 119, if not earlier, and extending down to the case of Janger Mohamed v. Mohamed Arjad I.L.R. 5 Cal. 509. There are cases between, viz.: Goluck Ram Deb v. Brindabun Deb 14 W.R. 365 and Shaikh Dayemoollah v. Kirtee Chunder Surmah 18 W.R. 530. The Calcutta Court in these cases has throughout laid down that the demand talab-i-ishtishhad must be made in the presence of the vendor or purchaser, or upon the premises and in the presence of witnesses. In the case in 10 Weekly Reporter, the learned Judges were certainly not disposed to make any relaxation, and fully bore in mind the fact that the right of pre-emption was one in which they should not be disposed to relax any of the rules by which the Muhammadans themselves found it necessary to confine its operation. In Janger Mohamed v. Mohamed Arjad, the precedent of Chamroo Pasban v. Puhlwan Roy was quoted, and the learned Judges considered it to amount to nothing further than that the demand must be made either before the vendor or the purchaser or on the premises; in other words, the matter deemed essential was that the affirmation should be made in the presence of witnesses and before the vendor or purchaser who might be deemed to be in possession of the lands. The fact of the purchase would seem to be considered a giving, at any rate, a constructive possession for such purposes, and we see no reason to rule otherwise.
3. As regards the second point, the main authority cited to us is a passage from Macnaghten’s Principles and Precedents upon Muhammadan Law, Edition 1890, p. 183 where it is said that the party claiming must make the demand, and, it is added, be may also depute an agent, provided he is at a considerable distance and cannot afford personal attendance, and, if unable to depute an agent, he may communicate with the seller or purchaser by letter. Along with this, which after all does not appear to be of higher authority than an answer made, as the practice then was, by a person considered an authority in Muhammadan law to a question put by Judges, we were referred to the case of Syed Wajid Ali Khan v. Lala Hanuman Prasad 4 B.L.R. A.C.J. 139. In that case a Subordinate Judge had expressed an opinion that the ceremony of talab-i-ishtishhad could only be performed by the pre-emptor in person and could not be done through an agent. The learned Judges who decided that case-remarked that they were not referred to any authority for this dictum, and the law is otherwise enunciated in Muhammadan law books. The restriction that the demand should be made by the pre-emptor in person depends upon his ability to perform it, and the question of ability would seem to be one-lightly dealt with, the preference being given to the rule which prevails in. Muhammadan law as elsewhere, that an agent can do what a principal can do, except where prohibited by law or where his power is restrained. In the case of Mussamat Ojheoonissa Begum v. Sheikh Rustum Ali W.R. 1864 p. 219, the Judges held that unless there was a clear provision in the law that the claimant must go to the spot or to the seller or to the purchaser, his act could be done by a duly constituted agent. As in that case, so in this, we think that the evidence shows that the needful ceremonies of Muhammadan law have been complied with to all intents and purposes, and that the learned Judge was right in so considering and in making the order of remand. The appeal is therefore dismissed with costs.
