JUDGMENT : Panigrahi, C.J. - This appeal by the unsuccessful Plaintiffs arises out of a suit for enforcing the right of pre-emption under the Mahomedan Law against the purchaser of a plot of land from the Plaintiffs' co-sharer. 2. The Plaintiffs' case was that the disputed properties which adjoin their house belong to their uncle, Defendant No. 1, and had been allotted to their share at a partition. On the 26th May 1947 Defendant No. 1 sold the lands to Defendant No. 2, for a consideration of Rs. 775/-/-, by a sale-deed Ext. B. Plaintiff No. 2 heard about the sale on the next day and immediately claimed to exercise his right of preemption before Defendants No. 1 and No. 2 and immediately thereafter he repeated the demand before them in the presence of certain witnesses, who had been informed about their prior demand as well. The Plaintiffs also set up an alternative case based on an agreement to sell the Schedule Ka properties, but that case has not been urged in this appeal. Defendant No. 2's contention was that he was also a co-sharer of Defendants No. 1 and had, therefore got a preferential claim to purchase the disputed properties. He denied the claim of the Plaintiffs to pre-empt, as well as their allegation that they had made any demand for pre-emption. The trial court found that the disputed properties had been sold for Rs. 300/- although a higher figure had been inserted in the sale deed. It was also held by the trial court that the demand for re-conveyance had been made by the Plaintiffs according to the rules of the Mahomedan Law and that Defendant No. 2 was, therefore, bound to reconvey the property to the Plaintiffs on receipt of the consideration actually paid by him. The learned Subordinate Judge who heard the appeal set aside the trial court's judgment on the ground that the Plaintiffs had failed to prove that the necessary ceremonies had been performed according to the requirement of the Mahomedan Law. The main ground on which the lower appellate court appears to have differed from the trial court is said to be that the witnesses have not been specifically invoked for proving the demand and that the property in respect of which the claim was made, has not been sufficiently described. 3. The main ground on which the lower appellate court appears to have differed from the trial court is said to be that the witnesses have not been specifically invoked for proving the demand and that the property in respect of which the claim was made, has not been sufficiently described. 3. Under the Mahomedan law the conditions on which the right to pre-empt can be exercised are said to consist in two formalities (1) talab-i mosasibat, (or immediate demand) and (2) talab-i-ishhad (or demand by invocation of witnesses). The pre-emptor must express in explicit terms his intention to claim the properties and formulate his intention in the shape of a demand in unequivocal language, and this should be done immediately after he hears about the sale. It is not necessary, however, that the demand should be made in the presence of witnesses. Nor is any particular formality necessary to constitute a valid demand. There seems to be some difference of opinion as to how the second condition is to be performed. The second demand should be made with as little delay as possible, either in the premises, or in the presence of the vendor, or of the vendee in the presence of witnesses. This form is called talab-i-ishhad or demand by invocation of witnesses. Ameer Ali in his Mahomedan Law (Fourth Edition) says- As the right to pre-emption is strictissimi juris, failure to perform the demands in accordance with the requirements of the law would defeat the claim. Again, at page 726, the learned author says It has been sometimes held that the demand must be in the form given i the Hedaya, but that does not seem to be a correct view of the law what the Law requires is that the demand must be to that effect and no more. It is also well established that both the talabs may be combined and made at the same time. All that is necessary is that the second talab should be made in the presence of witnesses. The right of pre-emption has been described by Hamilton in his Translation of the Hedaya as a feeble right as it is the disseizing another of his property merely in order to prevent apprehended inconveniences and the talab-i-ishhad is spoken of as "a claim by affirmation and taking to witness". The right of pre-emption has been described by Hamilton in his Translation of the Hedaya as a feeble right as it is the disseizing another of his property merely in order to prevent apprehended inconveniences and the talab-i-ishhad is spoken of as "a claim by affirmation and taking to witness". The reason for the rule of having witnesses is because the evidence is wanted in order to establish proof before the Magistrate and it is probable that -the claimant cannot have witnesses to the talab-i-mosasis as that is expressed immediately on intimation being received of the sale". It is therefore necessary afterwards to make the talab-i-ishhad (also known as talab-i-takreer) 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 Shafee is fully established and confirmed". The manner in which the claimant should make the demand is described by means of an illustration Such a person has bought such a house of which I am the Shafee I have already claimed my privilege of Shafee, and now again claim it be therefore witness thereof. In his Digest of Mahomedan Law) Baillie describes the ceremony as follows by talab-i-ishhad or demand with invocation of witnesses (also styled as takreer as before mentioned), is meant a person calling on witnesses to attest his talab-i-mowa sibat or immediate demand. The invocation of witnesses is not required to give validity to that demand, but only in order that the pre-emptor may be provided with proof, in case the purchaser should deny the demand saying you did not demand your right when you heard of the sale, nay, you abandoned your right while the pre-emptor says, on the other hand, I did demand it when, the word being with the purchaser, the onus probandi would be cast on the other. 4. The Calcutta High Court has taken a strict view of how the form of invocation of witnesses should be gone through as in Abdul Rahim and Others Vs. Tufan Gazi and Others, ; Pachumuddin Nayek Vs. Abdul Gaffur and Others, and a very recent case, Abdul Rasheed v. Mohd. Idris AIR 1946 Cal. 135. 4. The Calcutta High Court has taken a strict view of how the form of invocation of witnesses should be gone through as in Abdul Rahim and Others Vs. Tufan Gazi and Others, ; Pachumuddin Nayek Vs. Abdul Gaffur and Others, and a very recent case, Abdul Rasheed v. Mohd. Idris AIR 1946 Cal. 135. This view has been followed in the Patna High Court in Medni Proshad and Others Vs. Suresh Chandra Tewari and Others, and in Sonabashi Kuer and Others Vs. Chaudhury Ramdeo Singh, . 5. It has, however, been held by the Allahabad High Court in Imamuddin Vs. Mohd. Raisul Islam Hashmi and Another that it was not absolutely necessary for the pre-emptor lo use the words 'Be therefore witness thereof' at the time of the second demand, but that it must be fully established that there were at least two witnesses present who heard the demand and can bear witness to the fact when it is denied by the vendee. Sulaiman J who delivered the judgment of the Court pointed out- Neither in the translation, nor in the original is there any passage which clearly states that the omission to use the words 'Be therefore witness thereof' would be fatal. Invocation of witnesses is not required to give validity to the second demand but only in order that the pre-emptor may be provided with proof in case the purchaser should deny the demand. In fact, the second demand may sometimes even be made by letter or messenger. As I have already pointed out earlier, Ameer Ali in his Mahomedan Law is also of opinion that the demand need not be in the form given in the Hedaya, and what the law requires is that the demand "must be to that effect and no more". This view has been followed by the Bombay High Court in Shivasankar v. Laxman AIR 1951 Bom. 83. 6. It appears to me that the view taken by the Allahabad High Court is reasonable and is in conformity with modern ideas. All that the law requires is that there should be some witnesses to attest the second demand made by the pre-emptor. 83. 6. It appears to me that the view taken by the Allahabad High Court is reasonable and is in conformity with modern ideas. All that the law requires is that there should be some witnesses to attest the second demand made by the pre-emptor. It would be ridiculous to suggest that the pre-emptor, besides pointing out that he intends to assert his right to the property sold in the presence of witnesses, should also add "Be ye witness thereof", If the witnesses have heard that the pre-emptor has said to the vendor or vendee, and fairly indicated to them what the dispute is about, the formality is satisfied. The Courts have adopted a more liberal view with regard to the other archaic rules of Mahomedan Law, and have applied them according to the rules of justice, equity and good conscience. A special Bench of the Calcutta High Court consisting of seven Judges, in Enatullah Vs. Sheikh Kowsher Ali and Others, laid down the principle of law as follows- Although the courts are not bound to decide cases strictly according to the rules of Mahomedan Law in matters of pre-emption where there is nothing in the rule laid down by the Mahomedan jurists which is contrary to the principles of justice, equity and good conscience, those rules should be given effect to. In that case the question was whether one co-parcener had a right of pre-emption against another under the Mahomedan law. The reason for the right of pre-emption is said to be to prevent a disagreeable stranger from coming in. The Special Bench help that- It would be neither fair nor equitable to refuse their rights only on the ground that the enjoyment of those rights would not be necessary for the original object with which the rule of Shaffa might have been started. In Jadu Lal Sahu v. Janaki Keor 39 T.A. 101 (P.C.) Mr. Lowis as the manager of an Estate under the Court of Wards asserted the claim of his ward and the question was whether he was competent to observe the formalities which, according to Mahomedan Law, are essential preliminaries to the claim of pre-emption. Mr. In Jadu Lal Sahu v. Janaki Keor 39 T.A. 101 (P.C.) Mr. Lowis as the manager of an Estate under the Court of Wards asserted the claim of his ward and the question was whether he was competent to observe the formalities which, according to Mahomedan Law, are essential preliminaries to the claim of pre-emption. Mr. Ameer Ali, J. delivering the judgment of the Board, held that the claim of the manager was valid and observed as follows The Mussalman law insists that the first formality technically caned 'the immediate demand' should be observed by the pre-emptor, or some one on his behalf immediately on receipt of the news of sale otherwise, the right of preemption falls to the ground. The second formality consists in the repetition of the 'demand' with as little delay as possible under the circumstances, in the presence of witnesses, either before the vendor or the vendee or on the premises. 7. It would appear, therefore, that no particular formality is necessary so long as the claim is unequivocally made in the presence of witnesses and the parties. 8. Me Mohapatra learned Counsel for the Respondent then urged that there is no evidence that the witnesses were specially called to the scene to witness the demand that the properties were not specifically described in their presence and that there was no invocation of the witnesses by utterance of the formal words eye witness thereof. It is accordingly contended that the second demand has not been made in accordance with the strict rule of Mahomedan law. Plaintiff No. 2 who was examined as P.W. 1 said in his deposition "I told him (Defendant No. 2.) to return the land and I told him to take the consideration from me and to give me the land as I am entitled to it being a co-sharer. I made tablab-i-mowasibat to Defendant No. 1 and No. 2 and they refused. I told Kanhu Khan, Radhashyam Biswal, Lokanath Mohanty, Rahamat Khan, Wazir Khan, Gandai Sahu, to be witnesses to the effect that I demanded the property from Defendants 1 and 2 and the latter refused". P.W. 2 Kanhu Khan said "P.W. 1 told Defendant No. 1 from his own verandah to take Rs. 300/. from him and to give the land, but Defendant No. 2 refused. Other persons were also present there. P.W. 2 Kanhu Khan said "P.W. 1 told Defendant No. 1 from his own verandah to take Rs. 300/. from him and to give the land, but Defendant No. 2 refused. Other persons were also present there. P.W. 1 told us about this and demanded the land in our presence." P.W. 3 deposed "Plaintiff No 2 asked Defendant No. 2 that he is entitled to the suit property and took Defendant No. 2 to the consideration of Rs. 300/- and to return the land to him". P.W. 4 similarly deposed that P.W. 2 told Defendant No. 2 that he was entitled to the property and asked him to take Rs. 300/- and return the property. There was no cross-examination of any of these statements made by the witnesses and the property referred to as "the suit property" in the deposition of the witnesses Was accepted by the Defendant without any contest as relating to the property that he had purchased. P.W. 1 distinctly stated that he asked the witnesses "to be witnesses to the fact that I demanded the property from Defendants 1 and 2". There was no cross-examination on this part of the Plaintiffs' evidence. It appears from the evidence that both the demands were made immediately one after the other in the presence of the witnesses who were present there. It is not necessary that they should be specifically called to the scene to hear the demand i not is it necessary that any time should elapse between the first and the second demands. The property sold lies round-about the Plaintiffs' house from where the demand was made and everybody understood what the demand related to. In these circumstances it is idle to contend that the talab is defective for the reason that the property was not specifically referred to or that the Plaintiff did not use any set formal words invoking the witnesses. The lower appellate court unfortunately overlooked the evidence bearing on this point and appears to have been obsessed by the view taken by the Calcutta High Court that the formalities should be strictly proved to have been gone through. Even if that view were to be accepted there is abundant evidence in the case to show that the talabs were duly made in accordance with Mahomedan Law. 9. Even if that view were to be accepted there is abundant evidence in the case to show that the talabs were duly made in accordance with Mahomedan Law. 9. I would therefore allow this appeal, set aside the judgment of the learned Subordinate Judge and restore that of the learned Munsif. The Appellants shall have their costs throughout. Mohapatra, J. 10. I agree. Final Result : Allowed