REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 157 OF 2001
Kumar Gonsusab & Ors. ...Appellants
VERSUS
Sri Mohammed Miyan
Urf Baban & Ors ...Respondents
JUDGMENT
TARUN CHATTERJEE, J.
1. This appeal is directed against the judgment and
decree dated 5th of November, 1998 passed by
the High Court of Karnataka at Banglore in
R.S.A. No. 831/1996, by which the second
appeal filed by the respondents was allowed and
judgment and decree of the courts below were set
aside and the suit was decreed with costs.
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2. The moot question that was raised by the parties
before the courts below as well as before the High
Court was - whether the law of pre-emption
based on vicinage is void as held by this Court in
the case of Bhau Ram vs. B. Baijnath Singh
[1962 Supp.3 SCC 724] and Sant Ram & Ors.
vs. Labh Singh & Ors. [1964 (7) SCR 756].
However, while setting aside the judgments of the
courts below, the High Court in second appeal
held that the law of pre-emption on the ground of
vicinage could not be held to be void and
unconstitutional in view of the amendment of the
Constitution.
3. Mohd. Ismail Urf Badshah-Plaintiff No.1 (since
deceased) and Mohammed Miyan Urf Baban-
Plaintiff No.2 instituted a suit for permanent
injunction against Smt. Hamedabegum
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(Defendant No. 1/Appellant No.3) wife of Mohd
Yusuf Maniyar and against Kumar Gonsusab
(Defendant No. 2/Appellant No.1) and Kumar
Shafi Mohd (Defendant No. 3/Appellant No.2)
restraining the appellants from executing a sale
deed relating to the suit property on the ground
of right of pre-emption, to purchase 6 acres 31
guntas being R.S.No.164/3B situated at
Mishrikoti village of Kalghatagi taluk, Dharwad in
the State of Karnataka (hereinafter referred to as
the `suit property') and for other incidental
reliefs. Be it mentioned at this stage, that the
original Plaintiff No.1, namely, Mohd. Ismail Urf
Badshah died during the pendency of the
proceeding and his heirs and legal
representatives were brought on record. In this
judgment, the plaintiffs are described as
respondents and the defendants are described as
appellants.
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4. The case that was made out by the
respondents may be summarized as follows:-
The suit property was the ancestral property
belonging to the family of the respondents, which
was sub-divided among the co-sharers. Smt.
Hamedabegum, Appellant No. 3 was born in the
family of the respondents and she was given in
marriage. The respondents were adjoining owners of
the suit property and they were entitled to pre-empt
the suit property on the ground of vicinage. The
Appellant No.3 had entered into a mere agreement
to sell the suit property to Appellant Nos. 1 and 2
by a registered agreement for sale executed on 12th
of February, 1987. The respondents claimed pre-
emption on the ground of vicinage under the
Mohammedan Law and family customs in respect of
the suit property. Since on 19th of February, 1987,
the appellants attempted to mutate their names on
the basis of the aforesaid registered agreement to
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sell, executed on 12th of February, 1987, the
respondents, after coming to know the intention of
the appellants to sell the suit property on the basis
of the registered agreement to sell, expressed their
intention to exercise right of pre-emption on the
ground of vicinage. Since the Appellant No.3 had
refused to sell the suit property to the respondents,
they were constrained to file the suit for permanent
injunction, restraining the Appellant No.3 from
executing the sale deed in favour of Appellant Nos.
1 and 2 claiming pre-emption on the ground of
vicinage.
5. After entering appearance, the Appellant Nos. 1
to 3 had filed a written statement, denying the
material allegations made in the plaint. They,
however, admitted that the respondents were the
owners of the adjacent land of the suit property
and the fact of entering into an agreement to sell
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by Hamedabegum, Appellant No.3 in favour of
Appellant Nos. 1&2 was admitted. It was alleged
in the written statement that since Appellant
No.3 was the owner of the suit property and had
every right to sell the same to the person she
would have liked, the suit for permanent
injunction against the appellants must be
dismissed.
6. The following issues were framed by the trial
court:
" i). Whether plaintiffs prove that they have right of
pre-emption over the intended sale deed executed
by defendant no.1 in favour of defendant nos. 2 and
3?
ii). Is the plaintiff entitled to pre-emption as against
all the defendants?
iii). Whether defendant nos. 1 and 3 are entitled for
compensatory costs of Rs.3000/- each?
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iv). Whether defendants proves that law of pre-
emption is not applicable to State of Karnataka and
more so to agricultural land?
(v) Whether court fee paid is proper ?
(vi) What order ? What decree ? "
7. The trial court after framing the issues and after
permitting the parties to adduce evidence and
considering them and also the materials on
record and the law as laid down in Bhau Ram
vs. B. Baij Nath Singh (supra) and Sant Ram
vs. Labh Singh (supra), dismissed the suit inter
alia holding that the law of pre-emption on the
ground of vicinage was unconstitutional and
void. The trial Court further held that the
question of right of pre-emption of the
respondents in respect of the suit property could
not arise in view of the fact that the agreement
for sale could not create any interest in the suit
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property in favour of Appellant Nos.1&2 and for
this purpose, reliance was placed by the trial
Court on Section 232 of the Mohammedan Law.
An appeal was carried by the respondents before
the first appellate court and the first appellate
court after considering the judgment and decree
of the trial court and also after re-appreciating
the evidence on record dismissed the appeal by
its judgment dated 6th of March, 1996. Against
the judgment of affirmance of the courts below, a
second appeal was filed by the respondents
which, by the impugned judgment, allowed the
second appeal, holding that in the light of the
amendment to the Constitution, the law of pre-
emption on the ground of vicinage cannot be held
to be unconstitutional and void. However, the
High Court had failed to deal with the question
which was decided by the trial court as well as
the appellate court to the effect whether the suit
for pre-emption brought on the basis of such an
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agreement was without any cause of action as
there was no right to pre-emption in the
respondents which could be enforced under the
law in view of Section 232 of the Mohammedan
Law. It was further held by the High Court, while
setting aside the judgments of the courts below,
that the respondents had got right of pre-
emption, if the agreement for sale was going to be
given effect to by the appellants and if not then
certainly the respondents were not affected and
that if the agreement for sale was going to result
in a sale deed then such sale must be held to be
in violation of the above provision. With these
findings, both the judgments and decrees of the
courts below were set aside and the suit was
decreed. It may be reiterated that the High Court,
while setting aside the judgment of the courts
below, held that the law of pre-emption based on
vicinage cannot be held to be void and
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unconstitutional in view of the amendment of the
Constitution.
8. Keeping the aforesaid conclusions arrived at
by the High Court in mind, we now proceed to deal
with the questions raised before us. So far as the
constitutionality of the right of pre-emption on the
ground of vicinage is concerned, we find that the
High Court, as noted hereinearlier, held that the
right of preemption on the ground of vicinage under
the Mohammedan Law cannot be said to be
unconstitutional and void in view of the amendment
to the Constitution. Whereas the Courts below
relying on the two decisions, namely Bhau Ram's
case (supra) and Sant Ram's case (Supra), held
that the right of preemption on the ground of
vicinage was unconstitutional and void. It is true
that subsequent to the aforesaid two decisions, this
Court again reiterated the principles as laid down in
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Bhau Ram's case (supra) and Sant Ram's case
(Supra) in the case of Atam Prakash vs. State of
Haryana & Ors. [(1986) 2 SCC 249] and also in
A.Razzaque Sajansaheb Bagwan & Ors. vs.
Ibrahim Haji Mohammed Husain [(1998) 8 SCC
83]. We, however, do not intend to go into this
question in this case as in view of our decision on
the other issue, namely, whether the suit for
preemption on the ground of vicinage was
maintainable in law in view of the admitted fact that
only an agreement for sale of the suit property was
entered into by the appellant No. 3 with the
Appellant Nos. 1 & 2.
9. Let us now take up the other question that was
raised by the learned counsel for the parties. In
our view, as indicated herein earlier, the issue
whether the suit for pre-emption on the ground
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of vicinage could be entertainable when only a
mere agreement for sale has been entered into by
the appellant No.1 in favour of the appellant Nos.
2 and 3 in respect of the suit property. In our
view, on this account, the judgment and decree
of the High Court cannot be sustained.
10. Admittedly, a registered agreement for sale
was entered into by the appellant No.1 with the
appellant Nos. 2 and 3. Before we proceed further,
we may refer to Chapter XIII of the Mohammedan
Law, (Ed.19 by Mulla). Chapter XIII deals with pre-
emption under the Mohammedan Law. Section 226
says that right of pre-emption is a right which the
owner of an immovable property possesses to
acquire by purchase another immoveable property
which has been sold to another person. Section 232
of the Mohammedan Law would also be relevant
which runs as under:
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" 232. Sale alone gives rise to pre-emption -
The right of pre-emption arises only out of
a valid (a), complete (b), and bonafide (c)
sale. It does not arise out of gift (hiba),
sadaquah (s.171), wakf, inheritance,
bequest (d), or a lease even though in
perpetuity (e), Nor does it arise out of a
mortgage even though it may be by way of
conditional sale (f); but the right will
accrue, if the mortgage is foreclosed (g). An
exchange of properties between two
persons subject to an option to either of
them to cancel the exchange and take
back his property at any time during his
life, stands on the same footing as a
conditional sale; such an exchange does
not extinguish the ownership in the
property and does not give rise to the right
of pre-emption. But if one of the parties
dies without canceling the exchange, the
transaction will mature into two sales and
will give rise to the right of preemption (h).
It has been held by the High Court of
Allahabad that a transfer of property by a
husband to his wife in lieu of dower is a
sale, and is therefore subject to a claim for
pre-emption (i). On the other hand, the
Chief Court of Oudh has held that the
transaction amounts to a hiba-bil-ewaz,
and no claim for pre-emption can therefore
arise (j).
On a plain reading of Sections 226 and 232 of
the Mohammedan Law, it is clearly evident that the
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right of pre-emption can only accrue to an owner of
immoveable property when another immoveable
property is sold to another person. Section 232 of
the Mohammedan Law also indicates that sale
alone gives rise to pre-emption. Such being the
provision made in Sections 226 and 232 and in
view of the admitted fact that in this case
admittedly sale was not affected by appellant No.1
in favour of the appellant Nos. 2 and 3 in respect of
the suit property, we are not in a position to hold
that the suit for pre-emption was maintainable as
there was no cause of action to file such suit in the
absence of a sale deed effected in respect of the said
agreement for sale.
11. In this connection, Section 54 of the Transfer
of Property Act may also be referred to. Section
54 of the Transfer of Property Act says that a
contract for sale does not, of itself, create any
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interest in or charge on immoveable property.
Therefore, where the parties enter into a mere
agreement to sell, it creates no interest in the
suit property in favour of the vendee and the
proprietary title does not validly pass from the
vendors to the vendee and until that is
completed no right to enforce pre-emption
arises. Therefore, in our view, the suit for pre-
emption brought on the basis of such an
agreement was without any cause of action as
there was no right of pre-emption in the
respondents which could be enforced under
the law. In Radhakishan Laxminarayan
Toshniwal, vs. Shridhar Ramchandra
Alshi &Ors. [AIR 1960 SC 1368], this Court
has held that the transfer of property, where
the Transfer of Property Act applies, has to be
under the provisions of the Act only and
Mohammedan Law or any other personal law
of transfer of property cannot override the
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statute. Therefore, unless title to the suit
property has passed in accordance with the
Act, no right to enforce pre-emption arises. In
view of our discussions made hereinabove, we
are, therefore, of the view that in view of the
admitted fact that merely agreement for sale
was entered into by the appellant No.3 with
the appellant Nos.1 and 2 in respect of the suit
property, the question of exercising any right
of pre-emption in the respondents could not
arise at all, as already observed, a suit for pre-
emption brought on the basis of such an
agreement for sale must be held to be without
any cause of action as there was no right of
pre-emption in the respondents which could
be enforced under the law. We should not be
unmindful of the fact that there are no equities
in favour of a pre-emptor, whose sole object is
to disturb a valid transaction by virtue of the
rights created in him by statute. It is well
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settled that it would be open to the pre-
emptee, to defeat the law of pre-emption by
any legitimate means, which is not fraud on
the part of either the vendor or the vendee and
a person is entitled to steer clear of the law of
pre-emption by all lawful means.
12. That apart, it is now well settled that the right
of pre-emption is a weak right and is not looked
upon with favour by courts and therefore the courts
cannot go out of their way to help the pre-emptor.
(See: Radhakishan Laxminarayan Toshniwal
vs. Shridhar Ramchandra Alshi & Ors. [AIR
1960 SC 1368].
13.Such being the position, we are, therefore, of the
view that the right of pre-emption was not
available to the respondents in view of the
discussions made herein above.
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14.For the reasons aforesaid, this appeal is allowed
and the judgment and decree of the High Court
in the second appeal is set aside and consequent
thereupon the suit of the respondents is
dismissed. There will be no order as to costs.
15. We make it clear that if ultimately the sale
deed is executed, it would be open for the
respondents to apply for pre-emption of the suit
property, if under the law they are permitted to
maintain the suit for pre-emption.
.........................J.
[Tarun Chatterjee]
New Delhi; .........................J.
August 19, 2008. [P.Sathasivam]
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