Judgment

SARKAR, J. :The parties to this litigation are all Hindus but it is not in dispute that the Mohammedan law of pre-emption is applicable to them by custom, nor that the appellants had a right of pre-emption. The only question is whether the first demand called talab-i-mowasibat which has to be made after the completion of the sale in order that the right may be enforced, was made before or after such completion. The making of the demand is not in dispute but the dispute is as to when the sale was completed.

2. The appellants had their residential house contiguous to the house owned by certain persons whom we may call Pandeys. On January 31, 1946, the Pandeys executed a deed of sale in favour of the respondent purchaser in respect of their aforesaid house. The appellants claim a right of pre-emption on account of this sale. The consideration mentioned in the deed was Rs. 2,000/-. There was a subsisting mortgage on that house and the deed provided that out of the consideration a sum of Rs. 200/- would be left with the respondent purchaser for clearing off that mortgage. The deed also recited that the Pandeys had received Rs. 400/- and

"the remaining Rs. 1,400/- (Rupees fourteen hundred) in cash at the time of exchange of equivalents, (that is) at the time (of handing over) of the receipt of this deed .......... On receipt of the whole and entire amount of consideration money we have put the said claimant into possession and occupation of this vended property as absolute owner in place of us, the executants and our heirs and representatives." The deed further stated.

"the sale deed becomes operative from the date when we the executants affixed our signatures thereon. Whatever title, we the executants and our heirs had ............. with respect to this vended property, has become extinct, inoperative and null and void and the same has now been transferred to and acquired by the claimant."

By the word "claimant", the respondent purchaser was referred to.

3. The deed was presented at the registration office for registration by the Pandeys on the day it was executed and it was left with the Registrar in the Registration office for the necessary entries and copies being made, a receipt being given to the Pandeys. On February 2, 1946, the appellants on coming to hear of the execution of the deed of sale made the talab-i-mowasibat. On February 7, 1946, the receipt granted by the Registration Office to the Pandeys was made over by them to the respondent purchaser who thereupon paid the balance of the price as stipulated in the deed. On February 9, 1946, the documents were copied in the Registrar s books and thereupon the registration became complete as provided in S. 61 of the Registration Act. the respondent purchaser thereafter received the deed of sale from the Registrar s Office on February 13, 1946.

4. The appellants filed their suit for pre-emption of September 9, 1946. The suit was decreed by the trial Court and this decision was maintained by the first Appellate Court. The High Court, however, in second appeal set aside the decisions of the Courts below with the result that the suit stood dismissed and the appellants have now come to this Court in further appeal.

5. The Mohammedan law of pre-emption is stated in Mulla s Principles of Mohammedan law in these terms: "The right of pre-emption arises only out of a valid, complete and bona fide sale." This statement of the law is accepted by both the parties and there is no question that it is not correct. There is furthermore no dispute that the sale to the respondent purchaser was valid and bona fide. It is also agreed that one of the requisites before the right of pre-emption can be exercised is the preliminary demand by the pre-emptor and that such demand must be made after the completion of the sale. The case has been argued before us on behalf of the appellants on the basis that the sale was governed by the Transfer of Property Act. 1882. We will also proceed on that basis.

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