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High Court of Karnataka (Circuit Bench At Gulbarga)
N. KUMAR, J.
Maheboobsab Buransab Maniyar & Others
Versus
Mohadinsab Maheboobsab Maniyar & Others
R.F.A No.460 of 2005
Decided on : 12-01-2012
Where neither in the pleadings nor in the evidence of the plaintiff, it is stated that they made a demand to the defendants in the presence of two witnesses and in fact, the two witnesses when examined categorically stated that they have not seen the purchaser, it was held that the plaintiff did not fulfil the requirement of the custom which is a condition precedent for enforcing the pre-emptive right and therefore, they were not entitled to a decree. It was more so, when the only type of pre-emptive right claimed by plaintiffs namely, vicinage is declared as void and unconstitutional by Apex Court.
MAHOMEDAN LAW - Section 231: [N. Kumar, J] Right of Pre-emption - Held, As is clear from Section 231 of the Mahomedan Law, three classes of persons and no other are entitled to claim pre-emption, i.e., co-sharer in the property or the participator in immunities and appendages such as right of way or a right to discharge water or owners of adjoining immovable property. The right of pre-emption on the aforesaid third ground, i.e., vicinages not extend to estates of large magnitude, such as villages and zamindaris, but is confined to houses, gardens and small parcels of land. - Further Held, When a Muslim wants to enforce the pre-emptive right that is conferred on him by the custom is to be strictly followed. The essence his intention to purchase the property immediately on receiving the information of the sale. Then he has to follow such communication by making a demand to the purchaser or seller in the presence of two witnesses. It is only if such a demand is not complied with, a cause of action arises for him to file a suit within a period of one year from the date of sale to enforce the right of pre-emption. This is the customary right is sought to be enforced in a Court of law, all the prescriptions of the custom have to be meticulously followed.
MAHOMEDAN LAW - Section 236: [N. Kumar, J] Right of pre-emption - Held, It was necessary for the plaintiffs to have pleaded specifically what is the nature of pre-emptive right which they have and they are enforcing in the suit. That apart, Section 236 prescribes what are the conditions precedents which are to be satisfied before the claim for pre-emption would be up held by the Courts. The conditions are: firstly, the person claiming pre-emption right has to declare his intention to assert the right immediately on receiving the information of the same. That is formally called talab-i-mowasibat. Secondly, with the least practicable delay affirmed intention and making formal demand either in the presence of buyer or seller or on the premises which are the subject of sale, in the presence of atleast two witnesses. The second formality is called as talab-i-ishhad (demand for invocation of witness). It is only thereafter he can resort to third step of filing a suit for enforcement of pre-emptive right, if the earlier two demands are not complied with. - Further Held, In the instant case, neither in the pleadings nor in the evidence of the plaintiffs, it is stated that they have made a demand to the defendants in the presence of two witness. On the contrary, their specific case is that after making known their intention, when the defendants did not come forward to execute the sale deed, they issued legal notice containing the demand to execute the sale deed and for that sale deed they have taken the signature of two witness who are examined in the case as P.Ws-2 and 3. This according to them satisfies the requirement of making a demand in presence of two witnesses and therefore, the plaintiffs were entitled to a relief enforcement of their pre-emptive right of specific performance. As set out above, unless a demand is made to the purchaser or the seller in the presence of two witnesses, the second mandatory requirement prescribed under the custom is not fulfilled and issue of legal notice after getting two witnesses attesting their signature to the same cannot be construed as substitute for such requirement in custom. In fact, the two witnesses who are examined in the case have categorically stated that they have not seen the first defendant. In their cross-examination they have categorically stated that they requested the seller not to sell the property. But after sale, they have not played any role at all except attesting the legal notice, which as stated earlier does not satisfy the customary requirement. - On Facts, Held, Therefore, the Trial Court on careful consideration of the oral evidence on record has rightly held that this requirement of custom is not fulfilled which is a condition precedent for enforcing of pre-emptive right and in the absence of such condition not being complied with the plaintiffs are not entitled to the relief of enforcement of specific performance of the pre-emptive right set up by them.
Kumar, J.
1. The appeal is by the plaintiffs against the judgment and decree of the Trial Court, which has dismissed the suit for enforcement of pre-emptive right under Mahomedan Law.
2. For the purpose of convenience, the parties are referenced to as they are referred to in the original suit.
3. The subject matter of the suit is property bearing CTS Nos. 700 and 701 situated at War No. II of Bijapur City, located towards South by property bearing CTS Nos.702 and 704, Ward No. II of Bijapur city. Plaintiffs-1 to 3 are owners of CTS No.702, Ward No. II of Bijapur City. They are in peaceful possession and enjoyment of their respective properties.
4. Defendants-2 and 3 are the owners of the schedule property. Defendant No.1 purchased the schedule property from defendants-2 and 3 under a registered sale deed dated 19.12.1996. The case of the plaintiffs is that defendant No.1 is not the resident of Bijapur city and he is a permanent resident of Babalad village. The plaintiffs disclosed their intention to purchase the suit property when the defendant No.1 who being the distant relative of defendants came over on thee suit property for enquiries. At the time of enquiries also the plaintiffs altered the defendants that the plaintiffs have pre-emptive right over the property of the defendants. They sought for the first option to purchase the property. Plaintiffs directly and indirectly altered defendants No.2 and 3 in respect of intended transactions when defendant No.1 intended to purchase the suit property. Defendants-2 and 3 disclosed that without giving option to the plaintiffs, the defendants2 and 3 will not go to transfer or alienate the suit property. The defendants also disclosed that they being the relative, they are going to verify the property and defendant No.1 has no interest of any manner to purchase the suit property. Believing the words of defendants and disclosing their intention, the plaintiffs kept mum and in the meantime all the defendants high-handedly without disclosing true facts, behind the back of the plaintiffs executed regular sale deed in favour of defendant No.1 on 19.12.1996. After knowing the fact of sale to the defendants on 24.12.1996. The plaintiffs applied for certified copy of sale deed and it was supplied on 27.12.1996. The plaintiffs are the adjacent owners to the suit property having their pre-emptive right over the suit property, which was sold by defendants No.2 and 3 in favour of defendant No.1.
5. The defendant-1 knowingly with dishonest intention to defraud the legal right of plaintiffs got executed registered sale deed from defendants-2 and 3 illegally. On coming to know of the sale, the plaintiffs approached the defendants for reselling the suit property in favour of the plaintiffs for whatever consideration paid by the first defendant in favour of defendants-2 and 3 i.e., Rs.1,00,000-00 as a pre-emptive right. For that the defendants-1 to 3 showed their negative attitude and further the defendants threatened the plaintiffs to do whatever they want. Thereafter the plaintiffs-1 to 3 filed their objections to the concerned authorities. After exhausting all the reasonable remedies available under law, they got issued legal notice by disclosing all the true facts. The plaintiffs got issued legal notices as per law and the same was served on the defendants. The defendants have not complied with the demand made therein. Therefore they have no other option except to file a suit for enforcing the pre-emptive right.
6. After service of summons the first defendant entered appearance and filed written statement. It is his case that he purchased the suit property from defendants-2 and 3 on 19.12.1996 under a registered sale deed, for due consideration. He has taken possession of the suit property on the date of sale deed and to the knowledge of the plaintiffs. He is a bonafide purchaser for valuable consideration and has purchased the suit property after reasonable enquiries. The plaintiffs di
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