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Mahfooz Ali Khan and ors. Vs. Mohammed Ahsan and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Constitution
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1633 of 1975
Judge
Reported inAIR1980All5
ActsMohammedan Law; Constitution of India - Articles 13(1) and 19(1)
AppellantMahfooz Ali Khan and ors.
RespondentMohammed Ahsan and ors.
Appellant AdvocateBanarsi Das and ;N. Lal, Advs.
Respondent AdvocateDhan Prakash, Adv.
DispositionAppeal dismissed
Excerpt:
- .....it on the grounds, firstly that the law of pre-emption entitling a shafi khalit to pre-empt the sale of property on which he exercised certain rights of easement, is void for placing an unreasonable restriction on the fundamental right to property guaranteed under article 19(1)(f) of the constitution; and secondly on the ground that the first demand, talab mowasibat required to be made by mohammedan law, immediately on comming to know of the completion of the sale had in the present case been made before the completion of the sale, and was, therefore, invalid. mr. banarsi das, learned counsel for the appellants has questioned the correctness of the decision of the lower appellate court on both the said grounds.2. the decision of the lower appellate court on the first point is based on.....
Judgment:

Deoki Nandan, J.

1. This is a plaintiffs' second appeal in a suit for pre-emption. The trial court decreed the suit but the lower appellate court dismissed it on the grounds, firstly that the law of pre-emption entitling a Shafi Khalit to pre-empt the sale of property on which he exercised certain rights of easement, is void for placing an unreasonable restriction on the fundamental right to property guaranteed under Article 19(1)(f) of the Constitution; and secondly on the ground that the first demand, Talab Mowasibat required to be made by Mohammedan Law, immediately on comming to know of the completion of the sale had in the present case been made before the completion of the sale, and was, therefore, invalid. Mr. Banarsi Das, learned counsel for the appellants has questioned the correctness of the decision of the lower appellate court on both the said grounds.

2. The decision of the lower appellate court on the first point is based on a Full Bench decision of this Court in Jagdish Saran v. Brij Raj Kishore (1972 All LJ 413). It was held in that case that the plaintiff was not entitled to sue for pre-emption of a sale either on the basis of his right to rest his beams on the wall of the shops sold, or on the basis of his right to flow rain water through the common spot for 'a customary right of preemption' based simply on an easementary right, is void for placing an unreasonable restriction on the fundamenal rights guaranteed by Article 19(1)(f) of the Constitution. Mr. Banarsi Das did not question the correctness of the decision but urged that the right held to be void in that case was the customary right of pre-emption and not the personal law right of Muslims arising to them under the Muslim Law. Now, the right of pre-emption as a Shafi-I-Khalit was a legacy of the Muslim Law. The right of pre-emption is a right arising from and relating to ownership of immovable property. It was applied independently of the religious status of owners of land of im-moveable property wherever the Muslim Law of pre-emption had through passage of time become the customary law of the local area where the land or the immovable property was situated. A reference may be made to the Supreme Court's decision in Audh Bihari Singh v. Gajadhar (AIR 1954 SC 417) wherein it was held that the right of pre-emption is an incident annexed to the property or a right attaching to the ownership of the property. The provisions of the Constitution are overriding even as Muslim Law relating to property, it could not be applied in derogation of the provision of the Constitution.

3. In Ram Saran Lal v. Mst. Domini Kuer (AIR 1961 SC 1747), the Supreme Court held that the provisions of the Transfer of Property Act supersede the principles of Mohammedan Law as to sale and it is to the statute that in the Transfer of Property Act that one should look to find out whether, and if so when, a sale is complete in order to give rise to a right of pre-emption, and since under Section 54 of that Act sale of tangible immovable property of the value of Rs. 100/- and upwords, can be made only by a registered instrument, and the registration is not complete under the Registration Act until the document of sale has been copied out in the records of the Registration Office, under Section 61 of that Act, notwithstanding the provisions of Section 47 of the Registration Act that a registered instrument dates back, on its registration, to the date of its execution, the sale is not complete until the. completion of registration and, therefore, the provisions of Mohammedam Law that a sale is complete on delivery of the property must give, way to the statutory provisions governing the sale of immovable property. This decision of the Supreme Court is sufficient to dispose of both the points involved in the case. The first demand of Talabi Mowasibat under the Muslim Law must be made immediately on the completion of the sale but the sale must be deemed to be complete when the registration of the instrument of sale is complete, therefore, any demand made before the completion of the registration is invalid. At the same time if the provisions of the T. P. Act and the Registration Act can displace the provisions of the Mohammedan Law as to completion of sale of immovable property, it stands to reason that the provisions of Muslim Law as to preemption must necessarily be held to be unconstitutional if they violate the fundamental right to property guaranteed under Article 19(1)(f) of the Constitution. This position has been settled beyond controversy by the decision of the Supreme Court in Bhanu Ram v. Baij Nath Singh (AIR 1962 SC 1476), which has been applied in Jagdish Satan's case by the Full Bench of our Court.

4. Learned counsel for the appellants, however, relied on State of Bombay v. Narasu Appa Mali (AIR 1952 Bom 84) for the proposition that a personal law is not existing law within the meaning of Article 13(1) of the Constitution. That was a case relating to the personal law of marriage. It is not necessary in the present case to go into the question, for the law of pre-emption does not operate in the field of the law of persons but is very much a law relating to property. I doubt whether any law whether it be law relating to persons or to property, could be valid after 26th January, 1950, even if it is found to violate any of the provisions of Part III of the Constitution, but in view of the fact that that the case related to a law confined to the personal status of the parties, it is not necessary in the present case to go into the question in greater detail. The very fact that the Muslim Law of pre-emption was applied in certain parts of the country to owners of property irrespective of their religious persuasion shows that it was not applied as the personal law of Muslims but as a customary law of that local area. Mr. Banarsi Das then referred me to certain comments at page 679 under para 7 of the IVth Edition of Babu Ram Verma's Mohammedan Law in India and Pakistan. The learned author has observed therein that although the law of pre-emption has not found favour with the courts and even the Supreme Court has said that it operates as a clog on the right of free transfer of property, even so, 'that would hardly be a ground for striking it down' for 'Before a law can be struck down, it has to be established that that law violates the provisions contained in Part III of the Constitution or those in any other part of the Constitution.' Now a Full Bench of this Court having held in Jagdish Saran v. Brij Raj Kishore (1972 All LJ 413) (supra) that the law in question in the present case does violate the fundamental right to property guaranteed under Article 19(1)(f) of the Constitution, I cannot countenance the argument raised on the basis of the said comments in Verma's Mohammedan Law. Moreover, even there, the learned author has proceeded on the basis that the Muslim Law of preemption would be void to the extent that it is violative of any provision of the Constitution. In this, the observation of the learned author negatives the point raised by Mr. Banarsi Das that Muslim Law as a personal law was not existing law within the meaning of Article 13(1) of the Constitution and could not, therefore, be held to be un-constitutional and void for violating the provisions of Article 19(1)(f).

5. The appeal fails and is dismissed with costs.


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