Back
2001(5) Supreme 184
SUPREME COURT OF INDIA
(From Rajasthan High Court)
A.P. Misra & Umesh C. Banerjee, JJ.
Smt. Mattoo Devi -Appellant
versus
Damodar Lal (dead) by LRs. & Ors. -Respondents
Civil Appeal No. 5816 of 1994
Decided on 18-7-2001
Counsel for the Parties :
For the Appellant : B.D. Sharma, Advocate.
For the Respondents : Ms. Madhurima Tatia and Indra Makwana, Advocates.
IMPORTANT POINT
High Court was right in holding that plaintiffs had not waived their right of pre-emption. The Appeal is thus liable to be dismissed.
Held : Principle of talab in Mohammadan Law has three specific facets: the first being talab-e muwathaba : Talab in common parlance means and implies a demand and talab-e muwathaba literally means the demand of jumping . The idea is of a person jumping from his seat, as though startled by news of the sale (See in this context Wilson on Mohammadan Law). In Talab-e-muwathaba the pre-emptor must assert his claim immediately on hearing of sale though not before and law stands well settled that any unreasonable delay will be construed as an election not to pre-empt. The second, being popularly known as the Second Demand, is talab-e ishhad, which literally speaking mean and imply the demand which stands witnessed. The second demand thus must be in reference to the first demand and it is so done in the presence of two witnesses and also in the presence of either the vendor (if he is in possession) or the purchaser and the Third Demand though not strictly a demand but comes within the purview of the Principal and means initiation of legal action. It is however not always necessary since it is available only when one enforces his right by initiation of a civil suit - such an action is called talab-e tamlik or talab-e khusumat. In this form of Talab the suit must be brought within one year of the purchaser taking possession of the property and a suit or claim for pre-emption must relate to whole of the interest and not a part of the estate. (Para 2)
(ii) Customary Right of Pe-emption-Nature-Whether right of repurchase from the buyer and a mere personal right or incidence of property which is attached to land itself? (the later)-Case law discussed. (Para 3)
(iii) Right or Custom of Pre-emption-Property in Jaipur-Plaintiff co-owner of 3/4 portion of house-Defendant 2-4 co-owner of 1/4th portion-Defendant 2/4 sold their portion on 30.7.1962 for Rs. 4,499/- by a registered sale deed to Defendant 1-Plaintiff seeking declaration a pre-emption-Munsiff Dismissed-Decreed by Civil Judge-Upheld by High Courts-Appeal to Supreme Court-Issue of talab-Necessary under Customary Mohammadan Law effect of notification dated 7.4.1927-Pre-emption is a right to acquire the whole of the property sold in preference to other persons-Notification modified the customary right of pre-emption prevailing in former Jaipur State and made the formalities of making Talab as unnecessary-Whether the plaintiffs after the execution of the agreement to sell expressed their inability to purchase the house and after the execution of the sale deed refused to purchase the house for Rs. 4,499/- plus expenses for registration and therefore plaintiffs waived their rights of pre-emption?-High Court holding in negative-Whether needs any interference in appeal by-Special Leave? (No)-Appeal dismissed (Cross Ref.: Constitution of India Article 136)-Case law discussed-Words and Phrases-Waiver. (Paras 8, 10 and 11)
Held : Turning on to the contextual facts the main issue which fell for consideration before the High Court has been as to whether the plaintiffs after the execution of the agreement to sell, expressed their inability to purchase the house and after the execution of the sale deed, refused to purchase the house for Rs. 4499/- plus expenses for registration and, therefore, the plaintiffs waived their right of pre-emption? Obviously, the burden of the issue was upon the defendants and the defendants were required to prove that the plaintiffs after execution of the agreement to sell expressed their inability to purchase the property and also after execution of the sale-deed, refused to purchase the property for a sum of Rs. 4,499/-. The High Court upon consideration of the evidence came to the conclusion as below :
"I have myself gone into the entire evidence and my conclusion is that the finding arrived at by the learned first appellate Court is clear and based on evidence that there was no evidence before the learned Munsiff to hold that the plaintiffs showed their inability to purchase the house, or had refused to purchase the same. The defendants have failed to prove their case that the plaintiffs after the execution of the agreement to sell expressed their inability to purchase the house and that after the execution of the sale-deed refused to purchase the house for a consideration of Rs. 4,449/- plus expenses for registration. Thus, the question of waiver of right of pre-emption by the pre-emptor does not arise at all."
The learned Advocate appearing in support of the appeal very strongly contended that the evidence on record does not lend any credence to the case of the Respondents herein and as such the High Court was in gross error in the matter in issue. Incidentally the finding of fact arrived at upon consideration of the evidence on record ought not to be interfered with unless there is a total perverse view of the matter in issue. On perusal of the records, we do not find any such perversity so as to attribute the judgment of the High Court, otherwise not sustainable. In our view the High Court has dealt with the issue in its proper perspective having due regard to the language used in the notification and as such question of any interference under Article 136 of the Constitution of India would not arise. In that view of the matter this appeal fails and is dismissed without however any order as to costs. (Paras 12 to 15)
JUDGMENT
Banerjee, J.-Whilst an appeal has been taken against the judgment and decree passed by the learned Civil Judge, Jaipur in favour of Respondent No. 1 and 2 on deposit of Rs. 4657/- on the basis of the doctrine of Pre-emption in the court before a specified date and the High Court dismissed the appeal on the ground of there being no material for interference with the finding of the Civil Judge, Jaipur and a special leave petition was filed against the same (being Civil Appeal No. 5816/1994), the learned Advocate in support of the Appeal only restricted his submission on the issue of the principle of talab, as is known in Muslim Law.
2. The principle of talab in Mohammadan Law has three specific facets: the first being talab-e muwathaba : Talab in common parlance means and implies a demand and talab-e muwathaba literally means the demand of jumping . The idea is of a person jumping from his seat, as though startled by news of the sale (See in this context Wilson on Mohammadan Law). In Talab-e-muwathaba the pre-emptor must assert his claim immediately on hearing of sale though not before and law stands well settled that any unreasonable delay will be construed as an election not to pre-empt. The second, being popularly known as the Second Demand, is talab-e ishhad, which literally speaking mean and imply the demand which stands witnessed. The second demand thus must be in reference to the first demand and it is so done in the presence of two witnesses and also in the presence of either the vendor (if he is in possession) or the purchaser and the Third Demand though not strictly a demand but comes within the purview of the Principal and means initiation of legal action. It is however not always necessary since it is available only when one enforces his right by initiation of a civil suit - such an action is called talab-e tamlik or talab-e khusumat. In this form of Talab the suit must be brought within one year of the purchaser taking possession of the property and a suit or claim for pre-emption must relate to whole of the interest and not a part of the estate.
3. Needless to record that right of pre-emption (shuf a) is the right which the owner of immovable property possess as to acquire by purchase of any immovable property which had been sold to another person. Whereas the High Courts at Bombay and Calcutta held that the right of pre-emption is a right of re-purchase from the buyer and a mere personal right; the Allahabad High Court held that it is an incidence of property. This Court, however, in the case of Shri Audh Behari Singh v. Gajadhar Jaipuria & Ors.1 has held that the right of pre-emption is an incidence of property and attaches to the land itself. Detailing the judgments of the Calcutta High Court in Sheikh Kudratulla v. Mahini Mohan2 as also the Allahabad and Patna High Courts view, this Court observed :
"In our opinion it would not be correct to say that the right of pre-emption under Mohammadan Law is a personal right on the part of the pre-emptor to get a re-transfer of the property from the vendee who has already become owner of the same. We prefer to accept the meaning of the word "Tajibo" used in the Hedaya in the sense in which Mr. Justice Mahmood construes it to mean and it was really a mis-translation of that word by Hamilton that accounted to a great extent for the view taken by the Calcutta High Court. It is true that the right becomes enforceable only when there is a sale but the rights exists antecedently to the sale, the foundation of the right being the avoidance of the inconveniences and disturbances which would arise from the introduction of a stranger into the land. We agree with Mr. Justice Mahmood that the sale is a condition precedent not to the existence of the right but to its enforceability. We do not however desire to express any opinion on the view taken by the learned Judge that the right of pre-emption partakes strongly of the character of an easement in law. Analogies are not alw
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
