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CASE NO.:
Appeal (civil) 5816 of 1994
PETITIONER:
SMT. MATTOO DEVI
Vs.
RESPONDENT:
DAMODAR LAL (D) BY LRS & ORS.
DATE OF JUDGMENT: 18/07/2001
BENCH:
A.P. Misra & Umesh C. Banerjee
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 & 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.
The principle of talab in Muhammadan Law has three specific facets:
the first being talab-e muwäthaba: Talab in common parlance means and
implies a demand and talab-e muwäthaba 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 ishhäd,
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 tamlïk or talab-e khusümat.
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 preemption must relate to whole of the interest and not a part of the estate.
Needless to record that right of pre-emption (shufa) is the right
which the owner of immovable property possessess 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.
(1955 (1) SCR 70) has held that the right of pre-emption is an incidence ofhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7
property and attaches to the land itself. Detailing the judgments of the
Calcutta High Court in Sheikh Kudratulla v. Mahini Mohan (4 Bengal Law
Reporter 134) 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 Muhammadan Law is a
personal right on the part of the pre-emptor to get a retransfer 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
right 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 always helpful and even if there is
resemblance between the two rights, the differences
between them are no less material. The correct legal
position seems to be that the law of pre-emption imposes
a limitation or disability upon the ownership of a
property to the extent that it restricts the owners
unfettered right of sale and compels him to sell the
property to his co-sharer or neighbour as the case may be.
The person who is a co-shares in the land or owns lands
in the vicinity consequently gets an advantage or benefit
corresponding to the burden with which the owner or the
property is saddled; even though it does not amount to an
actual interest in the property sold. The crux of the
whole thing is that the benefit as well as the burden of the
right of pre-emption run with the land and can be
enforced by or against the owner of the land for the time
being although the right of the pre-emptor does not
amount to an interest in the land itself. It may be stated
here that if the right of pre-emption had been only a
personal right enforceable against the vendee and there
was no infirmity in the title of the owner restricting his
right of sale in a certain manner, a bonafide purchaser
without notice would certainly obtain an absolute title to
the property, unhampered by any right of the pre-emptor
and in such circumstances there could be no justification
for enforcing the right of pre-emption against the
purchaser on grounds of justice, equity and good
conscience on which grounds alone the right could be
enforced at the present day. In our opinion the law of
pre-emption creates a right which attaches to the property
and on that footing only it can be enforced against the
purchaser.
Before adverting to the contentions raised, though not strictly
relevant, the contextual facts ought to be noticed at this juncture for proper
and effective appreciation of the matter in issue.
Briefly stated, the facts depict that defendants Nos.2 and 4 has sold
their house situated in Gali Chaudharian Chowkri Bisheshswarji, to
defendant No.1 on 30th July, 1962, for a sum of Rs.4,499/- by a registeredhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7
sale deed. The plaintiff, Damodar Lal (since deceased) and his son Satya
Narain filed a suit in the Court of Addl. Munsiff No.1, district Jaipur on 23rd
July, 1963. The case of the plaintiff is that 3/4th portion of the house is
owned and possessed by them and defendant Nos.2 to 4 sold their portion in
the said house to defendant No.1 on 30th July, 1962. The plaintiffs claimed
that they have a right of pre-emption as they are co-sharers. It was further
contended by the plaintiffs that when they came to know of the sale on 12th
September, 1962, they informed Matto Devi about their right of pre-emption
and asked to sell the property to them. But she paid no heed to it. It is also
alleged in the plaint that in the sale-deed, certain portions exclusively
belonged to the plaintiffs. The plaintiffs, therefore, sought declaration that
certain portions of the property belong to them and the sale to that extent in
any event is null and void. The appellant Smt. Matto Devi, being the
vendee, however denied the allegations, though the character of the plaintiff
as co-sharer was not denied. It was alleged that no talabs were made by
Damodar Lal and Satya Deo, the plaintiffs. It was also alleged that an
option to purchase the property was given to the plaintiffs, but they did not
avail of the same and as a matter of fact they waived their right from
enforcing the right of pre-emption. The records however depict that the
plaint was amended for making an assertion that talabs were made on 12th
November, 1962, in the presence of Kalyah and Satya Narain witnesses; but
the property was not sold to them. The learned Munsiff, after trial held that
the right or custom of pre-emption was prevalent in the city of Jaipur and the
plaintiff had a right to pre-empt. It was also held that the plaintiffs had
shown their inability to purchase the property and, thus, they have waived
their right to pre-emption. The learned trial court also held that the suit was
not maintainable as it was for partial pre-emption and as regards talabs it
was the finding of the learned trial court that no talabs were made by the
plaintiffs. Consequently, the suit of the plaintiffs was dismissed by the
learned Munsiff. Being aggrieved by the judgment and decree passed by the
learned Additional Munsiff Magistrate No.1, Jaipur dated 12th January,
1973, an appeal was preferred before the learned District Judge, which was
transferred to the Court of the learned Civil Judge, Jaipur. The learned first
appellate Court allowed the appeal setting aside the judgment and decree
passed by the learned trial court and thus consequently, the plaintiffs suit
for pre-emption was decreed with costs. The plaintiffs were directed to
deposit in the trial court a sum of Rs.4667/- on or before 18th April, 1975,
and it was directed that on payment of such amount in the court, Smt. Matto
Devi, defendant No.1, shall deliver possession of the property to the
plaintiffs whose title to the property shall be deemed to have accrued from
the date of such payment. It was also directed that if the said amount is not
so paid, the suit shall stand dismissed. Aggrieved by the judgment and
decree passed by the learned first appellate court, the second appeal
preffered by Smt. Matto Devi, however did not yield any be nefit in favour
of the defendant and hence the petition before this Court.
As noticed above, the question pressed pertains to the issue of talab
only and it is in that perspective, the effect of a notification dated 7th April,
1927 ought to be noticed.
Before however, proceeding with the scope and effect of the
notification, it would be convenient to note the observations of Subba Rao, J.
in Bishan Singh & Ors. v. Khazan Singh & Anr. (1959 SCR 878) wherein
the learned Judge relied upon the statement of law as given by Plowden, J in
Dhaninath v. Budhu (136 PR 1894 at page 511) as below:
A preferential right to acquire land, belonging to
another person upon the occasion of a transfer by
the latter, does not appear to me to be either a right
to or a right in that land. It is jus ad rem alienum
acquirendum and not a jus in re aliiena.
A right to the offer of a thing about to be sold is
not identical with a right to the thing itself, and
that is the primary right of the pre-emptor. The
secondary right is to follow the thing sold, whenhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7
sold without the proper offer to the pre-emptor,
and to acquire it, if he thinks fit, in spite of the
sale, made in disregard of his preferential right.
On the basis of the aforesaid, Subba Rao, J, with his usual felicity of
expression observed that the general law of pre-emption does not recognise
any right to claim a share in the property sold when there are rival claimants
and pre-emption is a right to acquire the whole of the property sold in
preference to other persons. The learned Judge further relied upon the
decision in the case of Gobind Dayal v. Inayatullah (1885 ILR 7 Allahabad
775) as also the decision of the Lahore High Court in the case of Mool
Chand v. Ganga Jal (1930 ILR 11 Lahore 258) and summarised the law
pertaining to the right of pre-emption in the manner as below:
(1) The right of pre-emption is not a right to the
thing sold but a right to the offer of a thing about
to be sold. This right is called the primary or
inherent right. (2) The pre-emptor has a secondary
right or a remedial right to follow the thing sold.
(3) It is a right of substitution but not of repurchase, i.e., the pre-emptor takes the entire
bargain and steps into the shoes of the original
vendee. (4) It is a right to acquire the whole of the
property sold and not a share of the property sold.
(5) Preference being the essence of the right, the
plaintiff must have a superior right to that of the
vendee or the person substituted in his place. (6)
The right being a very weak right, it can be
defeated by all legitimate methods, such as the
vendee allowing the claimant of a superior or equal
right being substituted in his place.
In the recent past this Court in the decision of Indira Bai v. Nand
Kishore (AIR 1991SC 1055) while dealing with the issue of estoppel and
the rule of equity stated as below:
3. Estoppel is a rule of equity flowing out of
fairness striking on behaviour deficient in good
faith. It operates a check on spurious conduct by
preventing the inducer from taking advantage and
asailing forfeiture already accomplished. It is
invoked and applied to aid the law in
administration of justice. But for it great many
injustice may have been perpetrated. Present case
is a glaring example of it. True no notice was
given by the seller but the trial Court and the
appellate Court concurred that the pre-emptor not
only came to know of the sale immediately but he
assisted the purchaser-appellant in raising
construction which went on for five months.
Having thus persuaded, rather misled, the
purchaser by his own conduct that he acquiesced in
his ownership he somersaulted to grab the property
with constructions by staking his own claim and
attempting to unsettle the legal effect of his own
conduct by taking recourse to law to curb and
control such unwarranted conduct the Courts have
extended the broad and paramount considerations
of equity, to transactions and assurances, express
or implied to avoid injustice.
4. Legal approach of the High Court, thus that
no estoppel could arise unless notice under Section
8 of the Rajasthan Pre-emption Act (in brevity the
Act) was given by the seller and pre-emptorhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7
should have had occasion to pay or tender price
ignores the fallacy that estoppel need not be
specifically provided as it can always be used as a
weapon of defence. In the Privy Council decision
referred earlier, the Court was concerned with
Oudh Laws Act (18 of 1876) which too had an
identical provision for giving notice by seller. No
notice was given but since pre-emptor knew that
the property was for sale and he had even obtained
details of lots he was precluded from basing his
claim on pre-emption.
The notification noticed above seems to have however, a definite
impact in the matter in issue and as such the same is detailed hereinbelow in
extenso for ascertainment of its true effect. The notification reads as below:
No.2155/J-I-148 Dated Jaipur, the 7th April, 1927
Whereas it is expedient to give all possible claimants
formal notice of a sale, with a view to facilitate their
assertion of pre-emptive right without recourse to
litigation, the following rules have been passed by the
Council of State, and they shall come immediately into
force:
1. When any person proposes to sell any property in
respect of which any person have a right of preemption, he shall give notice to the persons
concerned of
(a) the property: and
(b) the price at which he is willing to sell it.
Such notice shall be given through the Court
within the local limits of whose jurisdiction the
property or any party thereof is situate.
2. Any person having a right of pre-emption in
respect of any property proposed to be sold shall
lose such right, unless within 3 months from the
date of service of such notice he or his agent pays
or tenders through the Court the price aforesaid to
the person so proposing to sell.
3. Any person entitled to a right of pre-emption may
bring a suit to enforce such right on any of the
following grounds (namely):-
(a) that no due notice was given as required by
Rule 1;
(b) that tender was made under Rule 2 and
refused;
(c) that the price stated in the notice was not fixed
in good faith;
Incidentally Rajasthan High Court in the case of Radha Ballabh
Haldiya & Ors. v. Pushalal Agarwal & Ors. (AIR 1986 Rajasthan 88) upon
reference to the notification, answered the reference to the effect that the
notification dated 7th April, 1927 as published in the Jaipur Gazette dated
15th April, 1927, in fact, modified the customary right of pre-emption
prevailing to the former Jaipur State and made the formalities of making
talabs as unnecessary. While coming to the conclusion as above, the High
Court in Radha Ballabs decision (supra) stated in paragraphs 69 and 75 of
the Report as below:
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and substantive law though well defined concept in
jurisprudence and there was no watertight
compartments for them created by any statute. If
we have to make a correct statement of law, we
must further mention in unequivocal manner that
the matter of substance in contradistinction to the
matters of form can be found both in substantive
law and procedural law and it would be fallacious
to say that all which form in the branch of
substantive law are matter of substance and all
which form in procedure law are matter of form. It
all depends upon the particular statute, its object,
its formulation and the effect which is desired to
be achieved by the requirement of procedure. We
do not propose to deal with this point any further
because in our considered opinion the substantive
law and procedural law overlap each other more
often than not and the proposition of law laid down
by us is so patent and well known that it requires
no examples, illustrations and citation of decisions,
any further.
75. We are of the opinion that this notification is
a complete Code in respect of right of pre-emption
except that the concept of pre-emption has been
left to be deduced from the customary law of the
parties and has not been mentioned in it. In other
words, the right of pre-emtption, as per the
customary law is to be found in the customary law
but once the right of pre-emption exists either on
account of vicinity or otherwise then that right can
be enforced only according to the requirement and
conditions laid down in this notification of 1927.
It is true that talabs have not been distanced with
in this notification. We are assuming for the
purpose of this reference that the requirement of
talabs was necessary under the customary
Mohammedan Law before this notification was
issued and if there is any doubt on that point, i.e.
amply answered by the two judgments of the
Supreme Court in Smt. Rajeshwari Devi v.
Mukesh Chandra (1966 SC Notes 403 ) (supra)
and Bhagirath Singh Shekhawat v. Ram Niwas
Barit (ibid) later being related to the Jaipur State
itself.
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 plaintifs 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 onhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7
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.4,499/- 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.
(A.P. Misra)
J
(Umesh C. Banerjee)
July 18, 2001
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