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1911 DIGILAW 152 (ALL)

Abdul Majid v. Muhammad Sadiq and Musammat Hakiman

1911-05-02

body1911
JUDGMENT H.G. Richards, C.J. and Tudball, J. - This appeal arises out of a suit for pre-emption of certain zamindari property based on Muhammadan law. The defendant, Musammat Hakiman, sold the property to the appellant, Muhammad Sadiq, on the 16th of December, 1907. The sale-deed was duly executed and registered, and it set forth that the share sold was in or about a 24 biswansi share. As a matter of fact, the share which the Musammat had was a 17 biswansi share, and this has been decided in the suit brought against her and her vendee by the other co-sharers. The plaintiff when he instituted his suit only claimed a 15 biswansi share, alleging that that was the share which the vendor had actually sold. The suit was instituted on the last day of limitation. Afterwards the plaintiff came to understand that the real share sold was, as we have said before, a 17 biswansi share, and accordingly he was allowed to amend the plaint by claiming a 17 biswansi share instead of a 15 biswansi share. The first court found that the formalities necessary under the Muhammadan law had been duly performed and the lower appellate court accepted the finding. The plaintiff's suit was accordingly decreed. 2. In appeal it has been urged that the amendment was an amendment which ought not and could not have been made having regard to the provisions of the Limitation Act, and, secondly, that the courts below were wrong in holding that the preliminaries required by the Muhammadan law had been fulfilled. The courts are allowed by the Code ample power to amend, and we are slow to interfere with any amendment which the lower courts have power to make, and which they in the exercise of discretion have made. We think, however, that no court would have power to allow a new cause of action to be introduced into a plaint after that cause of action had become barred by limitation. The real question in the present appeal is whether or not we are bound to regard the amendment which was made, namely, to allow the plaintiff to claim 17 biswansis instead of 15 biswansis, as the introduction of a now cause of action, or whether it may be regarded as a correction of the description of the property. 3. The real question in the present appeal is whether or not we are bound to regard the amendment which was made, namely, to allow the plaintiff to claim 17 biswansis instead of 15 biswansis, as the introduction of a now cause of action, or whether it may be regarded as a correction of the description of the property. 3. With regard to the due performance of the formalities of the Muhammadan law, the evidence, which was believed by both the courts below, was to the effect that the vendee informed the plaintiff in the present suit that he had purchased the "share of Musammat Hakiman." There was no specification of exactly what the share was, and the plaintiff at once said without waiting to ask any questions that he claimed his right to pre-empt. We think that the courts below were entitled on this evidence to hold that the formalities had been fulfilled. Of course the demand was made in the presence of witnesses. 4. There was a great deal of confusion as to what was in fact the actual share of the Musammat. We have already pointed out that although she purported to sell a share equal to about 24 biswansis, her real share was 17 biswansis. After consideration we have come to the conclusion that the amendment in this case may be looked upon as a correction of the description of the property. Looked upon in this light it was an amendment which the court below was entitled to make; and if it was an amendment which the court was entitled to make, we think that limitation must be reckoned as from the date of the presentation of the plaint, as explained by section 3. We accordingly dismiss the appeal with costs.