LAW FOR ALL

Mohammadan Law: Immovable property-Sale of-Right of pre-emption-Talab-Principle of-Held : There are three facets of talab; (i) talab-e-muwathaba, (ii) talab-e-ishhad and (iii) talab-e-tamilik or talab-e-khusumat-The first implies a demand, the second, reiteration of demand in the presence of witnesses and the third, initiation of legal action-The owner of an immovable property possesses a right of pre-emption (shuf a) over immovable property that has been sold to another person. Practice and Procedure : Finding of fact-Interference with-Scope of-Held: Ought not to be interfered with unless there is a total perverse view of the matter in issue. Words and Phrases: "Talab-e muwathaba", "talab-e ishhad", "talab-e tamlik", "talab-e khusumat" and "shuf a "-Meaning of-In the context of Immovable property under Mohammodan Law. The respondents-plaintiffs filed a suit for a declaration that 3/4th portion of the suit property belonged to them and the sale to that extent in favour of the appellant-defendant was null and void. The respondents also claimed that they had a right of pre-emption as they were the co- sharers. The appellant alleged that no `talabs' were made by the respondents and that the respondent showed their inability to purchase the property and thus they waived their right to pre-emption. The trial court dismissed the suit. The first appellate court allowed the appeal, which was confirmed by the High Court. Hence this appeal Citation: 2001 AIR 2611,2001( 3 )SCR1009,2001( 6 )SCC 330,2001( 4 )SCALE388 ,2001( 5 )JT 496- Dismissing the appeal, the Court HELD : 1.1. The principle of talab in Mohammadan Law has three specific facets; the first being talab-e muwathaba. Talab in common parlance means and implies 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 the news of the sale. In talab-e muwathaba the pre-emptor must assert his claim immediately on hearing of the sale though not before, and law stands well settled that any unreasonable delay will be constructed as an election not to pre-empt. The second, being popularly known as the second demand, is talab-e ishhad, which literally speaking means and implies 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 principle 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. [1011-F-H; 1012-A] Wilson on Mohammadan Law, referred to. 1.2. The right of pre-emption (shuf a) is the right, which the owner of an immovable property possesses to acquire by purchase of any immovable property, which had been sold to another person. [1012-B] Shri Audh Behari Singh v. Gajadhar Jaipuria, [1955] 1 SCR 70; Bishan Singh v. Khazan Singh, [1959] SCR 878; Indira Bai v. Nand Kishore, AIR (1991) SC 1055; Dhaninath v. Budhu, 136 PR 1894; Gobind Dayal v. Inayatullah, (1885) ILR 7 All 775; Mool Chand v. Ganga Jal, (1930) ILR 11 Lah 258; Radha Ballabh Haldiya v. Pushalal Agarwal, AIR (1986) Raj 88 and Sheikh Kudratulla v. Mohini Mohan 4 Beng., LR 134 (Cal), referred to. Smt. Rajeshwari Devi v. Mukesh Chandra, (1966) SC Notes 403, cited. 2.1. 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. [1018-F] 2.2. 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. There is no such perversity so as to attribute the judgment of the High Court, otherwise not sustainable. [1019-C] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5816 of 1994.