Judgment Reuben, J. 1. This appeal by the defts. is directed against a decree for pre-emption granted by the Addl. Subordinate Judge at Arrah. 2. It arises out of a suit for specific performance of a contract for the sale of two annas share in milkiat property in mauza Kurasan, bearing tauzi No. 14290, in pursuance of a deed of contract executed by the deft., first party in favour of the pltf. It was alleged in the plaint that, despite this contract the deft., first party, on 12-6-1943, sold this property to the defts. second party. The plfcf., as an alternative to the prayar for specific performance, claimed pre- emption as being a co-sharer proprietor in respect of eight annas share in tauzi NO. 14290. The learned Subordinate Judge found that there was a contract to sell as alleged, & that the defts. second party purchased the property with knowledge of the contract to sell but he refused specific performance on the ground that the pltf. is a minor & the contract was unenforceable for want of mutuality. Only the defts. have appealed. 3. Two points were urged on behalf of the applts. : (1) that pre-emption between Hindus is Bihar applies as a matter of custom, & the pltf. must fail in this case, because he has not pleaded the custom of pre-emption and (2) that the claim to pre-emption must fail on the ground that the demands (talabs) necessary to establish the right to pre- emption have not been properly performed. 4. It is now well established that, as a matter of custom, the right of pre- emption in accordance with Hanafi law exists between Hindus in Bihar, & it is hardly necessary to enumerate reported decisions in which the existence of such a custom has been recognised. So well recognised, apparently, is this custom that the pltf. in this case did not think it necessary expressly to plead its existence. The claim to pre- empt, however, by necessary implication, pleaded the existence of such a custom, & the absence of a pleading of its non-existence in the written statement amounts to an admission of its existence. It is clear from the record that the parties proceeded on the basis that such a custom exists, & no issue on the point was raised. It is too late to raise the point in appeal. It is clear from the record that the parties proceeded on the basis that such a custom exists, & no issue on the point was raised. It is too late to raise the point in appeal. A sufficient reply is contained in the observation with which the Judicial Committee dismissed a similar objection in Jadu Lal V/s. Janki Koer, 39 I. A. 101: (39 Cal. 915 P. C.) : "In the ease of Fakir Rawat V/s. Emambaksh, Beng. L. Rule Sup. Vol. 35 : (1863 W. R. 143 F. B.) an F. B. of the H. C. of Bengal gave judicial recognition to the existence of the right of pre-emption among the Hindus of Bihar..... In their Lordships judgment the decision in Fakir Rawats case (Beng. L. R. Sup. Vol. 35: 1863 W. Rule 143 F. B.) is conclusive on the point raised on behalf of the defts. Their abstention from taking the objection in a definite & distinct form at the earliest stage of the ease was, it may fairly be presumed, due to the explicit enunciation of the law in the ruling referred to." 5. This brings me to the second point. It is well recognised that the right of pre-emption is a very feeble one, & that it will be defeated by any failure to comply with the strict requirements of the Muhammadan law relating to the performance of the demands (talabs). There are two such demands, talab i mowasibat which must follow immediately the receipt of information of the tale which gives rise to the right to pre empt, & talab-i-ishtish which the pre-emptor is required to perform with as little delay as possible in the presence of witnesses, either on the premises in dispute or in the presence of the vendor or of the vendee. The Subordinate Judge has accepted the evidence of the pltfs witnesses regarding the performance of the two demands, & no sufficient reason has been shown to us why we should differ from him as regards the reliability of these witnesses & the weight to be attached to the evidence given by them. It is contended, however, that the demands as performed according to the evidence are defective on several grounds: (a) that they were performed by Chaudhury Mahadeo Singh, who is neither the legal guardian nor the agent of the minor pltf. It is contended, however, that the demands as performed according to the evidence are defective on several grounds: (a) that they were performed by Chaudhury Mahadeo Singh, who is neither the legal guardian nor the agent of the minor pltf. ; (b) that knowledge of the sale of the property by the deft., first party to the defts. second party was received by Shyam Sunder Lal, an agent of the pltf., on 12-6 1943 at about noon, but the first demand was performed much later by Chaudhury Mahadeo Singh on getting information of the sale from Shyam Sunder Lal, and (c) that the performance of both the demands was defective because no specification was given of the property in respect of which the demands were being made; in fact, it is not even clear that Chaudhury Mahadeo Singh knew that property had been sold by the deft., first party to the defts. second party. 6. There is no substance in the first two grounds. The pltf. is the son of Chaudhury Mahadeo Singh s brother, who is an Advocate practising at Benares. The family its joint, & Chaudhury Mahadeo Singh, who is the elder brother is the managing member It is admitted also that he looks after the separate property of the minor pltf. which includes the eight annas share in tauzi No. 14290 in village Kurasan. In fact Chaudhury Mahadeo Singh is the de facto guardian of the minor in respect of this property. Shyam Sunder Lal is merely subordinate servant. It was not for him to decide whether or not his master would exercise his right of pre-emption. All that he could do, & the evidence is that he did, was to inform as soon as ho reasonably could, Chaudhury Mahadeo Singh, who was acting as the guardian of the minor. The demand (talab) may be made either by the pre-emptor himself or by his agent. In the circumstances of this case, there can be no doubt that Chaudhury Mahadeo Singh had the authority to make the demand on behalf of the minor, & according to the evidence, he made the demands as soon as he got information of the sale from Shyam Sunder Lal.. The demands therefore, are not invalidated on either of the two grounds put forward. 7. The demands therefore, are not invalidated on either of the two grounds put forward. 7. With regard to the third ground, it is necessary, first of all, to see what the text books say about the essentials necessary for the proper performance of the demands. 8. I cite below the relevant passages from Book xxxvIII, chap. II, of Hamiltons Hedaya: "Claims to Shaffa are of three kinds. -- The first of there is termed Talb Mawasibat, or immediate claim, where the Shafee prefers his claim the moment he is apprised of the salt being concluded; and this it is necessary that he should do, insomuch that if he makes any delay his right is thereby inval dated;..... It is not material in what words the claim is preferred; it being sufficient that they imply a claim. Thus if a person say I have claimed my Shaffa, or I shall claim my Shaffa, or I do claim my Shaffa, all these are good; for it is the meaning, & not the style or mode of expression, which is here considered. * * * * * The second mode of claim to Shaffa is termed the Talb Takreer wa-Ish had, or claim by affirmation &, taking to witness; and this also is requisite; because evidence is wanted in order to establish proof before the Magistrates; and it is probable that the claimant cannot have witnesses to the Talb Mawasibat, as that is expressed immediately on intimation being received of the sale. It is therefore necessary afterwards to make the Talb Ish had wa Takereer, which is done by the Shafee taking some person to witness either against the seller, if the ground sold be still in his possession, or against the purchaser, or upon the spot regarding which the dispute has arisen; and upon the Shafee thus taking some person to witness, his right of Shaffa is fully established & confirmed, * * * * * The manner of claim by affirmation & taking to witness, is, the claimant saying, Such a person has bought such a house, of which I am the Shafee; I have already claimed my privilege of Shaffa. & now again claim it: be therefore witness thereof. & now again claim it: be therefore witness thereof. (It is reported from Aboo Yoosaf that it is requisite that the name of the thing sold, & its particular boundaries be specified because a claim is not valid unless the thing demanded be precisely known.) * * * * * The third mode of claim to Shaffa is termed Talb Khasoomat, or claim by litigation --which is performed by the Shafee petitioning the Kazee to command the purchaser to surrender up the ground to him; the method of doing which will hereafter be particularly explained. * * * * * When the Shafee goes to the Kazee & claims his right, alleging that such a person has purchased a house, in which he has the right to Shaffa, the Kazee must first question the purchaser (the deft., in the cause) concerning the property on which the Shafee grounds his right of Shaffa; and if he acknowledge it. this sufficient ground for the Kazee passing a decree; but if he deny it, the Kazee must then order the Shafee to bring witnesses to prove his property; for the possession, which is apparent, may be owing to other causes then property; and a thing which is thus doubtful cannot be admitted as a proof to the detriment of another. Kadooree alleges that the Kazee, before he applies to the deft., ought to ask the pltf. regarding the situation of the house & its boundaries; because if a man sue for the property of a house it its requisite that he describes its situation & boundaries; and therefore he must do the same in claiming his right of Shaffa." I have placed in italics the two passages which, in my opinion, are directly relevant to the present controversy. 9 In Baillies Digest (l865) Part I, we find a similar observation as regards talab-i-mowasibat. There is some difference as to the words in which the demand should be expressed; but the correct opinion is that it is lawful in any words that intelligibly express the demand." As regards talab-i-ishtish-had, the learned author says: "To give validity to the talab ishtish-had, it is required that it be made in the presence of the purchaser, or seller, or on the premises which are the subject of sale. And the person claiming the right of preemption should say. And the person claiming the right of preemption should say. in the presence of one or other of these, "Such a one has purchased this mansion (specifying its boundaries), & I have demanded the pre-emption, & now do demand it; bear ye witness to this." 10. To the same effect are the following passages from Ameer Alis Muhammadan Law, Edn. 4 : "A person who intends to advance a claim based on the right of pre-emption in respect of property which has been sold to another must immediately on receiving information of the sale, express in explicit terms his intention to claim the property. The intention must be formulated in the shape of a demand. No express formula is necessary so long as the assertion of the right, or what is called a demand is expressed in unequivocal language; this is called talab-i-mowasibat or immediate demand. * * * * * For the performance of the ceremony of Talab-i-ishtish-had the pre-emptor must take some witnesses with him to the vendor, if the property sold be still in his possession, or to the vend e or to the property which is the subject-matter of the claim. And there, in the presence of the witnesses, he must say to the following effect: "such a person bought such a property (sufficiently indicating the same) of which I am the shafi I have already claimed my right of shufa & now again claim it, be therefore witness then of." (The italics are mine.) From the above extracts, it is clear that not much importance is attached to the form in which the talab i-mowasibat is expressed The important thing is that it must be made immediately on receipt of information of the sale & its meaning must be clear. The essence of this demand is that it must be immediate. According to Baillie, mowasibat means "jumping up." If a, person is to act on the spur of the moment, he cannot be expected to express himself in a set form. 11. Conditions are different when we come to the talab-i ishtish-had. This is a formal claim, provided for, as we are told by the Hedaya, because evidence is wanted to prove the making of the demand when the matter goes to Ct. & it is possible that there may be no witnesses present at the time the talab-i mowasibat is performed. Conditions are different when we come to the talab-i ishtish-had. This is a formal claim, provided for, as we are told by the Hedaya, because evidence is wanted to prove the making of the demand when the matter goes to Ct. & it is possible that there may be no witnesses present at the time the talab-i mowasibat is performed. It is provided that the talab i-ishtish-had must be performed on the property, or to the vendor, or the vendee, as the case may be, & that it must be is the presence of witnesses. It is necessary also that the witnesses should be called on to bear witness to the performance of the talabs: Medni Prashad V/s. Suresh Chandra, 21 Pat. 799 : (A. I. R. (30) 1943 Pat. 96). Here, again, we do not find any particular set form, but the authorities I have cited above require that the property in respect of which the demand is being made should be specified. No such requirement is mentioned in respect of the talab i-mowasibat. The reason for this difference appears to me to lie in the different circumstances & the different purposes intended to be served by them. The talab-i-mowasibat follows immediately the receipt of the information of the sale. This circumstance is by itself sufficient to show that the talab is performed in respect of the property covered by the sale. This talab is meant to give expression at once to the decision of the pre-emptor 60 pre-empt. The second demand comes at a later stage & is for the purpose of providing evidence that the demand has been made. The witnesses must be in a position to say what property the talab related to. Unless some specification of the property is made, they will not know what the demand is for It has been objected on behalf of the resps., that it would be absurd to expect the pre-emptor to give in detail particulars of the property which he intends to pre-empt, it being quite possible that the property consists of a hundred different plots of land. I do not think that it is contemplated that in the talab-i- ishtish-had full details of the property should be given. This is indicated by the form of description suggested by the different authorities. See, for instance, the passages cited from Ameer Alis Muhammadan Law and Bailliea Digest. I do not think that it is contemplated that in the talab-i- ishtish-had full details of the property should be given. This is indicated by the form of description suggested by the different authorities. See, for instance, the passages cited from Ameer Alis Muhammadan Law and Bailliea Digest. I think there would be a sufficient specification of the property, if the talab contains a description which makes the property identifiable; for instance, if the pre emptor, giving a general description of the property, mentions that it has been sold by such & such person to such other person & states that he claims it by right of pre-emption & has already made his first demand. Of course, it will depend upon the circumstances of each case whether the description is sufficient for this purpose. See, for instance, the decision of Sinha J. (Ramaswami J. agreeing) in Gajadhar Singh V/s. Radha Prasad Singh, First Appeal No. 116 of 1947, D/- 8-4-1949, where his Lordship observed: "It would appear that it is essential to the performance of the ceremonies connected with pre-emption that the pre-emptor while performing the ceremony of talab-i-ishtish had should specify the property in respect of which he is proclaiming his right of pre-emption. Simply his Baying that he was demanding pre-emption of whatever properties have been purchased by the deft., will not be enough compliance with the requirements of the law." The description was found insufficient by his Lordship in the peculiar circumstances of the case with which he was dealing, the right of preemption being claimed only in respect of a portion of the property sold. In his Lordships opinion, the form o£ description deposed to by the witnesses to the talab-i-ishtish-had was a vague formula evolved by the pltf. & his witnesses to meet the difficulties arising out of the case. 12. Let us now look at the evidence in the light of the above remarks. The share of the deft., first party in tauzi No. 14290 in village Kurasan is eight annas. The subject-matter of the contract for sale between the pltf. & the deft., first party was two annas cut of this eight annas. The sale by the deft., first party in favour of the defts. second party is two annas for a consideration stated in the sale deed to be RS. 5,500. 13. The subject-matter of the contract for sale between the pltf. & the deft., first party was two annas cut of this eight annas. The sale by the deft., first party in favour of the defts. second party is two annas for a consideration stated in the sale deed to be RS. 5,500. 13. Shyam Sunder Lal (P. W. 3) deposes that he learnt about the proposed sale in favour of the defts. second party when the deft., first party was going to Bhabua to execute the sale deed. He, thereupon, went with the consideration money & asked the deft., first party to complete the sale in favour of his master in accordance with the contract for sale. At the same time, he informed the defts. second party about the contract. This happened at Bhabua. The defts. nevertheless, persisted & after filing protest petns. in the offices of the Sub-Registrar & the Sub-Divisional Officer at Bhabua, the witness informed Chaudhury Mahadeo Singh, who immediately made his first demand. It is not clear from the deposition of this witness, or from the plaint or from the two petns. filed by him that day, whether he knew that the sale in favour of the defts. second party related to a two anna share & not to the entire share of the deft., first party. As such, the sale did not affect the contract for sale between the deft., first party & the pltf. Apparently, however, the witness & Chaudhury Mahadeo Singh regarded it as so interfering. It is not impossible, therefore, that the witness & also Chaudhury Mahadeo Singh were under the impression that the sale in favour of the defts second party related to the entire eight annas interest of the deft., first party. I am prepared, however, to take it that they knew that the sale related to two annas only. This is not inconsistent with their feeling that it affected the contract for sale, because, being local people & aware of the circumstances of the deft., first party, they may have known that the intention of the deft., first party was to sell only two annas share & not more, so that the sale in favour of the defts. second party necessarily meant that she would be unwilling to complete the sale in favour of the pltf. 14. second party necessarily meant that she would be unwilling to complete the sale in favour of the pltf. 14. Ram Saroop Singh (P. W. 5) & Chaudhury Mahadeo Singh(P.w.9) are the other witnesses regarding the first demand. Prom their deposition, it appears that it was made immediately information of the sale being given to Chaudhury Mahadeo Singh by Shyam Sunder Lal. In these circumstances, there can be no doubt as to the property in respect of which the demand was made, & there would seem to be no defect in the first demand. 15. The second demand is said to have been made at the spot on the next day. [After giving the evidence of the witnesses relating to this demand his Lordship proceeded. 16. If we accept this evidence at its face value, it proves that Chaudhury Mahadeo Singh & Shyam Sunder Lal went to Kurasan in the morning. They proceeded direct to the spot, Chaudhury Mahadeo Singh made the demand on the bakasht land west of the pokhar & then the two of them returned to their chowni. Apparently, till they came to the chowni they did not talk to anybody apart from citing the witnesses Hira & Bechan on the spot. These two men were chance witnesses. In the course of the demand, no description was given of the property, the utmost that happened being that Chaudhury Mahadeo Singh, pointing to the land, stated that Ramdeo Singh, the pltf. had a right of pre-emption over the property, & he (Chaudhury Mahadeo Singh) was making the second demand on his behalf. As has been stated, the property sold was a two annas share in the milkiat property. Mere pointing at the bakasht land would not be sufficient to indicate to the witnesses that the demand was being made in respect of this share. In fact, it would give them (the witnesses) practically no information as to what the demand was about. Much stress has been laid on the statement with which Bechan Singh began his deposition, namely, that "Sonabasi (deft., first party) sold her share to Lallan & Mangal(defts. second party). It is sufficient, it is stated, that the witnesses should know what property the demand was for; it is not necessary that the property should be actually described. Much stress has been laid on the statement with which Bechan Singh began his deposition, namely, that "Sonabasi (deft., first party) sold her share to Lallan & Mangal(defts. second party). It is sufficient, it is stated, that the witnesses should know what property the demand was for; it is not necessary that the property should be actually described. Even if we accept this proposition, I do not think that this statement of the witness means that he knew what property the demand related to. The statement on which reliance is placed was made by the witness in 1946, three years after the second demand. The second demand took place the day after the sale by the deft., first party in favour of the defts. second party. There is nothing to show that on the day of the demand the witness knew about the sale in question & had reason to connect that sale with the demand made by Chaudhury Mahadeo Singh at the spot. 17. On the above grounds, I am satisfied that the seCond demand was defective inasmuch as the property in respect of which it was being made was not identifiably specified. Therefore, the decree of the learned Subordinate Judge cannot stand. 18. On behalf of the pltf.-resp. it has been urged that even if the decree for pre-emption be set aside, the pltf. should be given a decree for Specific performance. It is pointed out that the Subordinate Judge has found in his favour both as regards the existence of the contract for sale & as regards notice to the defts. second party. It is urged that the well-known case of Mir Sarwarjan V/s. Fakhruddin, 39 I. A. l : (39 Cal. 232 P. C.) on which reliance was placed by the learned Subordinate Judge, is distinguishable, because, whereas that case related to a Mahomedan minor, we are concerned with a contract entered into by the karta of a joint family, to which the minor, a Hindu, belongs, that karta being also the guardian of the minor as regards his separate property. The alternative relief for a decree for specific performance asked for by the pltf. was based on a different cause of action from the relief for preemption. It was refused by the learned Subordinate Judge, & no appeal or cross-objection has been filed in respect thereto. The alternative relief for a decree for specific performance asked for by the pltf. was based on a different cause of action from the relief for preemption. It was refused by the learned Subordinate Judge, & no appeal or cross-objection has been filed in respect thereto. As held in Analh Nath V/s. Dwarka Nath, 20 P. L. T. 359 : (A. I. Rule (26) 1939 P. C 86), it is not open to the pltf. to raise the point now. On the merits, also, I do not think that the pltf. would be entitled to succeed (vide Rambilas V/s. Lokenath, 37 Pat. 143 : (A. I. R. (36) 1949 Pat. 405).) 19. In the result, I would allow this appeal, set aside the decree of the Subordinate Judge & dismiss the suit with coats throughout. Jha, J. 20 I agree.