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Muhammad Niaz Khan and ors. Vs. Muhammad Idris Khan and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1918)ILR40All322
AppellantMuhammad Niaz Khan and ors.
RespondentMuhammad Idris Khan and anr.
Excerpt:
muhammadan law - pre-emption--sale disguised as a lease in order to defeat pre-emption--device not permissible under the muhammadan law. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools..........not merely in form the tran-saction was a lease then the suit should be dismissed on the ground that the muhammadan law does not apply to transters by way of leases. it has been more than once decided in this court that where a custom of pre-emption prevails upon sale the vendor and vendee cannot defeat the pre-emptor by dressing up the transaction in the garb of a lease. the same thing has been held in the punjab, where apparently the right of pre emption is regulated by act. we can see no good reason why the same principle should not apply to cases where the right is one under the muhammadan law. it is clear that the case must go back to the lower appellate court. we accordingly allow the appeal; set aside the decree of the lower appellate court, and remand the case to that court with.....
Judgment:

Henry Richards, C.J and Tudball, J.

1. This appeal arises out of a suit brought for pre-emption under the Muhammadan law. The property transferred is a small piece of land in the town of Zamania. The transfer was made in the form of a perpetual lease. The amount paid down was the sum of Rs 250 and a nominal rent of two annas per annum was reserved. The conrt of first instance decreed the suit, holding that there was a sale, and that the plaintiff had a right. The lower appellate court held that pre-emption under the Muhammadan law did not apply to the case of leases. Accordingly, without deciding the other issues the lower appellate court reversed the decree of the court of first instance and dismissed the suit. We think, reading the judgement of the lower appelate court, that the learned District Judge never intended to overrule the finding of the court of first instance that the transaction, though carried out in the form of a lease, was in reality a sale. We think that he intended to decide that a Muhammadan could make a transfer in the form of a lease, not withstanding that the real intention of the parties was a sale, and so defeat pre-emption, in other words, that such devices are not unknown in the Muhammadan law and are legitimate. In our opinion the court was, entitled and bound on the issue being raised to consider at the instance of the plaintiff claiming pre-emption, what was the real nature of the transaction, It was entitle 1 to consider the sun which was paid down, the smallness of the rent, and the value of ,the property ; and if, after considering all these matters, it came to the conclusion that the transaction was in truth and fast a sale, it should hold that the right of pre-empion empion arose, and proceed to consider whether the plaintiff by due observance of the requirements of the Muhammadan law was entitled to get the property. If the court came to the conclusion that in the truth and substance and not merely in form the tran-saction was a lease then the suit should be dismissed on the ground that the Muhammadan law does not apply to transters by way of leases. It has been more than once decided in this Court that where a custom of pre-emption prevails upon sale the vendor and vendee cannot defeat the pre-emptor by dressing up the transaction in the garb of a lease. The same thing has been held in the Punjab, where apparently the right of pre emption is regulated by Act. We can see no good reason why the same principle should not apply to cases where the right is one under the Muhammadan law. It is clear that the case must go back to the lower appellate court. We accordingly allow the appeal; set aside the decree of the lower appellate court, and remand the case to that court with directions to re-admit the appeal upon its original number in the file and proceed to hear and determine the same according to law, regard being had to what we have stated. Costs here and heretofore will be costs in the cause.


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