sale is invalid; because a person, under such circumstan ces, is not entitled to make a partial liquidation of his debts, satisfying some creditors at the expence of others. And in health. But, if he was in health, and of sound disposing mind at the time of the sale, it will be valid, because, notwithstanding the fact of his being deeply involved in debt, he has, under such circumstances, full dominion over his own property.

Sale by a non compos per

son invalid.

CASE XV.

Q. A woman dies, having transferred ber landed property to a stranger by a deed of sale. Ten years after her death, her nephew comes forward and claims the property sold by her, in right of inheritance. It appears from the evidence of two of the witnesses who attested the deed of sale, that the woman, when she executed it, was non compos mentis. Under these circumstances, what is the Law?

R. Sales made by sick persons on their death-beds, and at a time when they are not in full possession of their mental faculties, are invalid according to law; but the heirs and creditors of the seller are not competent to resume the property sold, without returning the price that may have been paid. Until they do so, the Proviso in fa- property sold will remain as a pledge in the possession vour of pur

chaser. of the purchaser.

CHAPTER III.

PRECEDENTS OF PRE-EMPTION.

CASE I.

Q. Certain lands are sold, and the person, who claims the right of pre-emption to them, lives at a great distance from the spot, as does his agent. About seven or eight months after the sale, the agent, becoming acquainted with the occurrence, writes to the purchaser, forwarding to him the amount of the purchase money, and he also writes to the seller. By this means another month elapses, at the end of which period he brings his claim into a Court of Justice. Is the claim of preemption admissible under the circumstances stated?

R. In this case it appears that the claimant to the Forms to be right of pre-emption was at a considerable distance, observed in claiming pie and that his agent was also far removed from the place emption. at which the sale was negotiated; that seven or eight months after the transaction, the agent of the claimant, hearing of the sale of the lands to which the claim of pre-emption is now adduced, wrote letters to the seller and purchaser, and forwarded, to the latter, the amount of the purchase money paid by him, and that one month afterwards he adduced his claim in Court. Such claim is legally admissible, because the affirmation by witness and immediate claim are required to be made on knowledge of the sale, and in this case it appears that the agent made claim immediately on hearing of the transaction, seven or eight months after it occurred; asserting his claim in writing and transmitting the amount of the purchase money. If, in the course of doing so, another month elapsed, the right to pre-emption cannot thereby be annulled. He is therefore at liberty to

bring his claim into a Court of Justice. The legal forms to be observed in asserting the right of preemption are immediate claim followed by affirmation by witness, which consists in the party going upon the lands, the right of pre-emption to which he claims, or to the seller or purchaser (whichever of them has possession of the lands), and saying that he is a claimant of pre-emption, that he has already asserted his claim, and that he continues to do so; at the same time calling witnesses to the fact of his making the claim. He 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; and if unable to do either, his right of pre-emption still remains, and he may bring it forward whenever he has it in his power to attend for the purpose. If, on immediate claim and affirmation by witness being made, the purchaser or seller deliver up the lands to the claimant, there will be no occasion for applying to a Court of Justice; but if they decline doing so, they should be proceeded against within the period of one month. If the claimant neglect to sue for his right within that period, his claim is inadmissible, according to Imam Moohummud. The tenets of some modern authorities are in conformity with this opinion, and the commentator on the Viqaya has adopted it. But, according to Aboo Haneefa, there is no limitation of time for bringing the claim into a Court of Justice, and it is admissible if brought forward in any moderate period though exceeding one month. Such doctrine is conformable to the opinion held by the more ancient authorities, and the author of the Hidaya has followed it. In the case in question, however, the right is not affected even according to the doctrine of Imam Moohummud, because the month elapsed while the claimant was in progress of urging

diate claim.

Of the affir.

witness.

his immediate claim. His claim, consequently, is legally admissible, though preferred after the expiration of one month. The following are the authorities for the above doctrine: Shurhi Viqaya,--" A person should of the immeassert his claim of pre-emption in the assembly (before it breaks up) where he hears of the sale, using language that is unambiguous, such as "I have claimed preemption, or the like, or I am a claimer of pre-emption, or I claim it." According to Koorkhee, the liberty to claim the right of pre-emption remains until the assembly breaks up; but according to other Doctors the right is lost, if silence be observed, even for a short time Such after the receipt of the intelligence of the sale. is the meaning of the term tulb-i mowasibut or immediate claim, which is so called, to shew the necessity of extreme despatch. He should next call persons to witness on the premises, or else in the presence of him mation by (whether seller or purchaser) who has possession of them, and should say "such an one has purchased this property and I have a right of pre-emption, to which I have laid claim and I still claim it. Bear witness therefore to the fact." This is the mode of affirmation by witness. It should be remembered, however, that this form must be gone through, in all possible cases, either on the premises or in the presence of the party in possession, insomuch that if the claimant has it in his power to do so, and neglect to act accordingly, his right to pre-emption is rendered null and void, according to the Zukheera. If a person, having a right to pre-emption, be on a pilgrimage to Mecca, and make the immediate claim, but be incapacitated from making the affirmation by witness, either on the premises or in the presence of the party in possession, he should depute an agent to do so if he can find one, and if not, he should send a messenger or a letter; but if unable to do this even, his right of pre-emption nevertheless

remains, and he may claim it whenever he attends; but if he wilfully neglect to conform to what is above reIquired, his claim of pre-emption is rendered null and void: afterwards he should bring his claim into a Court of Justice and should declare to the following effect:"Such a person has purchased such a property and I have a right to pre-emption in consequence of my property being situated in such a place I therefore Of the claim claim possession." This is called the claim of posby litigation. session and litigation. The right of pre-emption is not

affected by delay in preferring this claim, although according to Moohummud it is forfeited by the delay of one month, and this doctrine has been occasionally followed. But according to the Hidaya,-" If the person having the right of pre-emption delay making claim by litigation, still his right does not drop according to Haneefa. Such also is the generally received opinion, and decrees pass accordingly. There is likewise one opinion recorded from Aboo Yoosuf to the same effect. Moohummud maintains that if the person, having the right, postpone the litigation for one month after the taking of evidence, his right drops. This is also the opinion of Ziffer, and it is related as an opinion of Aboo Yoosuf, that his right becomes null if he delay the litigation after the Kazee has held one Court; for if he wilfully, and without alledging any excuse, omit to commence the litigation at the first Court held by the Kazee, it is a presumptive proof of his having declined it. The reasoning on which Moohummud founds his opinion in this particular, is that, if his right was never to be invalidated by his delaying the litiga tion, it would be very vexatious to the buyer; for he would be prevented from enjoying his property in the apprehension of being deprived of it by the claim of the person possessing the right of pre-emption. "I have therefore, says Moohummud, limited the delay that may