GHULAM JILANI And 3 Others vs GHULAM MUHAMMAD And 7 Other

SHAFIUR RAHMAN, J: --Leave to appeal was granted to the plaintiffs to examine whether the decision of the High Court of Sindh in Hussain Bux v. Mir Muhammad and 3 others PLD 1985 Kar. 161 correctly laid down the law as it was contrary to what the High Court of Sin& had itself been holding in its earlier decisions.

2. The appellants who are the plaintiffs are four brothers owning property adjacent to the one sold in Mahal Karez Ibrahimzai Mauza Sirki Tappa Saddar, Kansi, Quetta, and on the ground of contiguity of land they claimed a superior right of pre-emption. The admitted facts were that only one of the brothers (appellant No.2) had made the Tatab-e-Mowasibat and Talab-e-Ishhad and that even the power of attorney which he obtained from the other brothers was after he had made these Talabs. The suit was contested. The satisfaction of Talabs was one of the issues on which the parties were at-variance. The trial Court dismissed the claim of the appellants on 31-5-1984 holding as hereunder:----- "In circumstances the requirements of law for the demand of pre--emption are not clear. I have produced the law of demand for pre--emption above. Talab- e-Mowasibat i.e. Jumping demand is not clear from the above evidence and Talab-e-Ishhad is also not complete as it should have been there in the presence of the buyer or the seller or on the premises which is the subject-matter of sale and the same should have been in the presence of at least 2 witnesses but from the evidence of the plaintiffs I am not convinced, nor I see any such witness making such Talabs in accordance with laws as such I decide this issue in negative."

3. On appeal, the Additional District Judge affirmed the judgment holding as hereunder:-- "The learned counsel has conceded that the appellant Ghulam Haider in his statement has admitted that no demand was made to respondents Nos.7 and 8. He simply said that as the suit was filed therefore, there was no need to place the demands to the new purchaser. He has no reply as to why all the appellants did not make demands separately or why Ghulam Haider did not say that he placed the demands as attorney of the other appellants, when it was mandatory according to Mohammadan Law."

4. The High Court dismissed the revision petition holding as hereunder:-- "From the testimony of petitioners' attorney it appears that Talab-e--Mowasibat was made by him near Quetta Tehsil on the same date when mutation entries in respect of transaction of sale in favour of respondent No.6 were effected. From his statement it also transpires, that after making Talab-e-Mowasibat, two sets of witnesses were sent by him to respondent No.6 at two separate occasions."

It was concluded that Talab-e-Ishhad was not made in the manner required. Besides, the High Court did not follow the decision in Hussain Bux case PLD 1985 Kar. 161 and differed with that view and found the pre-emptors' case not established under the law.

5. After going through the facts of this case, and hearing the learned counsel for the parties we have come to the conclusion that it may not be necessary to deal exhaustively and finally with the specific question on which leave to appeal has been granted. This is additionally so, because we find that in this case Talab-e-Ishhad was deficient in another respect as well. Talab-e-Ishhad is required, by law, to be made either in the presence of the buyer or the seller or on the premises which are the subject of sale. This very requirement remained unestablished by the appellants including the attorney. The demand having been made before two witnesses who were sent to the purchaser, as claimed without establishing that the demand was made in the presence of the buyer or the seller or on the premises which are the subject of sale.

6. As regards the requirements of established Hanafi Law on the sub--continent, we find that the law has been consistently interpreted in Abid Husen v. Bashir Ahmad 1890 ILR 20 All. 499, Abbasi Begum v. Afzal Husen and another 1890 ILR 20 All. 457, Rujjub Ali Chopedar v. Chundi Churn Bhadra and others 1890 ILR 17 Cal. 543 and Nundo Pershad Thakur v. Gopal Thakur ILR 10 Cal. 1008 as requiring Talab-e-Ishhad to confirm Talab-e-Mowasibat. This requirement finds reproduction in the statutory form now in the N: W.F.P. Pre--emption Act, 1987 (Act X of 1987), section 13(3) thereof providing as hereunder:-- "Where a pre-emptor has made Talab-e-Mawathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under section 34, or knowledge, whichever may be earlier, make Talab-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due to the vendee, confirming his intention to exercise the right of pre-emption: Provided that in areas where due to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make Talab-e-Ishhad in the presence of two truthful witnesses."

In the Punjab Pre-emption Act IX of 1991 also, subsection (3) of section 13 makes mention of `confirmation' as a requirement of Talb-e-Ishhad.

7. It is to be noticed that these laws were framed by the Legislature in response to the decision of the Shariat Appellate Bench of the Supreme Court of Pakistan under Chapter 3-A of the Constitution of Government of N: W.F.P. Through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 challenging the then existing statutory Pre-emption law on the ground of being repugnant to the injunctions of Islam.

8. The word "confirmation" used in both these re-enacted laws has the meaning, as per Oxford English Dictionary (Volume I) "an action of ratifying, corroborating or verifying". In Black's Law Dictionary "confirmation" is defined "a contract or written memorandum thereof, by which that which was infirm, difficult to proof, void, imperfect, or subject to be avoided is ratified, rendered valid and binding, made firm and unavoidable". The use of the word "confirmation" necessarily refers to the earlier act and approval or reaffirmation of it.

9. In the end, we cannot but draw the attention to the decision of this Court in Syed Muhammad Munir and another v. Abu Nasar, Member (Judicial) Board of Revenue, Punjab, Lahore and 7 others PLD 1972 SC 346, as an example of judicial restraint in overturning a law followed for near a century, in such matters. It was expressed in the following words:- "In view of this difference in the interpretation of the Quranic text itself, we feel that it would not be proper on our part at this stage to attempt to put our own construction in opposition to the express ruling of commentators of such great antiquity and high authority. To depart from a rule of succession which the Shia community has universally been following ever since the days of Imam Jafar Sadek, as evidenced by the unanimous opinions of the Shia jurists on this point, would be wrong. It is not open to us to change a settled rule of succession, having the force of Ijma` behind it at this late stage. If a change is desired to be made this work should be undertaken by the Legislature itself after consulting the Shia Community."

10. In view of the foregoing discussion, the appeal fails and is hereby dismissed with no order as to costs.