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Rajendra Kumar Vs. Rameshwar Dass Mittal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 513 of 1976
Judge
Reported inAIR1981All391
ActsConstitution of India - Article 19(1); Mahomedan Law
AppellantRajendra Kumar
RespondentRameshwar Dass Mittal and ors.
Appellant AdvocateY.S. Saxena, Adv.
Respondent AdvocateK.N. Tripathi and ;V.K.S. Chaudhary, Advs.
DispositionAppeal allowed
Excerpt:
.....article 19(1) of constitution of india - plaintiff enjoyed the property already owned by him - pre-emption of sale sought on ground of common enjoyment of appendage and immunities - claim of pre-emption supported by customary mohammedan law prevalent in locality - held to be valid and enforceable pre-emption must be availed within reasonable time. - - 1. it was said that in the old abadi of shamli, to the west of muzaffarnagar road, the custom of pre-emption was prevalent since times immemorial among all the residents of that locality, hindus or muslims, irrespective of religion, in accordance with muslim law, subiect however, to the fact that it was not necessary to make talabs in accordance with that law, and the demand for preemption in any form was good enough the first right of..........for pre-emption of the sale of the part of a haveli situated at shamli, district muzaffarnagar, by sale deed dated 29-6-1972, registered on 27-12-1972, for rupees 15,000/- by the defendants nos. 2 and 3 to the defendant no. 1. it was said that in the old abadi of shamli, to the west of muzaffarnagar road, the custom of pre-emption was prevalent since times immemorial among all the residents of that locality, hindus or muslims, irrespective of religion, in accordance with muslim law, subiect however, to the fact that it was not necessary to make talabs in accordance with that law, and the demand for preemption in any form was good enough the first right of pre-emption was that of a co-sharer, the next of a participa-tor in appendages and immunities, and the last that of a shafi-i-jar. but.....
Judgment:

Deoki Nandan, J.

1. This is a defendant's second appeal in a suit for pre-emption of the sale of the part of a Haveli situated at Shamli, District Muzaffarnagar, by sale deed dated 29-6-1972, registered on 27-12-1972, for Rupees 15,000/- by the defendants Nos. 2 and 3 to the defendant No. 1. It was said that in the old Abadi of Shamli, to the west of Muzaffarnagar Road, the custom of pre-emption was prevalent since times immemorial among all the residents of that locality, Hindus or Muslims, irrespective of religion, in accordance with Muslim Law, subiect however, to the fact that it was not necessary to make Talabs in accordance with that law, and the demand for preemption in any form was good enough The first right of pre-emption was that of a co-sharer, the next of a participa-tor in appendages and immunities, and the last that of a Shafi-I-Jar. But the lost kind of right of pre-emption, on account of vicinage, had become void on the enforcement of the Constitution.

2. The plaintiff claimed that he was a co-sharer in the Haveli; that he had his houses to the east of the Haveli, while the defendants Nos. 2 and 3 had their houses to the west thereof: that the inner courtyard and the Dahlij of the Haveli through which people passed in and out, and the Rasta, the bathroom and the Chabootra to the south of the Dahlij, were common between the houses of the plaintiff and the house in suit. It was also alleged that the drain of both portions joined one common drain which passed through the Dahlii and drained out the water from the whole house. Thus it was said that the plaintiff was Shafi-I-Shariq and also Shafi-I-Khalit, i. e., a participator in the appendages and immunities and was entitled to pre-empt the sale of the house in suit.

3. The plaintiff further alleged that the defendants Nos. 2 and 3 had effect-ed the sale of the portion of the Haveli in suit with the common Sahan, Dahlii and bath-room etc., in favour of the first defendant by sale deed dated 29-6-1972 which was registered on 27-12-1972 for Rs. 15,000/- without any information to the plaintiff, and they did not care for the plaintiff's right of preemption. The first defendant, it was said, was a stranger and had no right or share in the house in suit and the plaintiff was entitled to pre-empt the sale. It was then alleged that on coming to know of the sale deed, the plaintiff made the demand for pre-emption, in accordance with the custom, to the first defendant, and when the sale deed was registered, he again made a demand for pre-emption in the end of December. 1972, and thereafter also he made certain demands, but the first defendant avoided to comply. It was then said that thereafter a notice dated 23-2-1973 was served by the plaintiff on the first defendant demanding preemption of the property in suit, to which the said defendant sent a wrong reply, hence the suit.

4. The first defendant contested the suit. The prevalence of the custom of pre-emption in the locality was denied.The plaintiff's claim of the right of pre-emption was also denied. Tha Haveli in suit, which the first defendant had purchased, was alleged to be separate and divided from other portions thereof. It was stated that the plaintiff was not a co-sharer of the disputed Haveli, nor was he a Shafi-I-Sharik nor Shafi-I-Khalit and that the courtyard of the first defendant was separate from that of the plaintiff. About the Dahlii the Sahan, the Chabootra, it was said that the portions appurtenant to the western portion of the first defendant were exclusively owned by him and the water of his portion also flowed separately. It was claimed that the plaintiff had no preferential right of purchase as against the first defendant; that the custom of pre-emption was ultra vires the Constitution of India; that the first defendant was not a stranger; and that the sale was taken with the full knowledge of the plaintiff when he did not take the properety in suit. The suit, it was said, was much belated and an afterthought. No demand for pre-emption was made within a reasonable time and the plaintiff was not entitled to any relief. The demands, alleged to have been made by the plaintiff, could not be said to be proper demands for pre-emption. The suit was claimed to be out of time. Lastly, it was claimed, by an amendment of the written statement, that the transaction in favour of the plaintiff was Benami and the plaintiff was not really the owner, nor did he have any effective control over that part of the property on the basis of which he claimed to pre-empt the sale of the property in suit.

5. The trial court framed as many as 11 issues. All of them do not survive now. The substance of its findings on the several issues before it was that the plaintiff had a right to sue and the sale-deed in his favour, on the basis of which he was claiming pre-emption of the sale in question, was not a Benami transaction: that the custom of preemption was prevalent in the locality where the property was situate, and the custom of pre-emption by a co-sharer was not ultra vires of the Constitution; that the property purchased by the first defendant was distinct arid separate and the plaintiff had no right to pre-empt the sale. The plaintiff'scase of having made demands of pre-emption in July and December, 1972 was disbelieved and the demand for pre-emption, said to have been made by notice dated 23-2-1973, was held to have been made too late. In the result, the trial court dismissed the suit with costs.

6. The lower appellate court reversed the trial court's decree and decreed the suit on the findings that the plaintiff was a co-sharer and participator in common amenities in the building in question and had, as such, a right to pre-empt the sale: and that the demand of pre-emption made by notice dated 23-2-1973 was sufficient in law as a demand made within a reasonable time,

7. The learned counsel for the appellant contended that it was nobody's case that the plaintiff and the defendants Nos. 2 and 3 were co-owners of the property in suit or that the defendants Nos. 2 and 3 had sold only an un-divided share of property in which the plaintiff also had a share: and that being so it could not be said that the plaintiff was a co-sharer with the defendants Nos. 2 and 3 in the property in suit, such as to be able to claim a co-sharer's right to pre-empt the sale of any part or portion thereof or share therein. I agree. The question really was whether the plaintiff could be said to be a participator in the appendages and the immunities with the defendants Nos. 2 and 3 in the property which was the subject of the sale sought to be pre-empted, it being settled that a mere right of easement is not good enough to support a claim for pre-emption after the enforcement of the Constitution. (See Jagdish Saran v. Brii Rai Kishore) : AIR1972All313 and (Bhau Ram v. Baii Nath Singh) : AIR1962SC1476 . Having looked at the description of the property sold and the evidence on record, I am satisfied that the finding recorded by the lower appellate court that the plaintiff was a participator in common amenities or appendages and immunities, is correct, inasmuch as the front Chabootra was common, the front Dahlij was common, the courtyard was common and the bath-room was also said to be common. The two portions of the property -- (1) That which was already owned by the plaintiff and (2) that of which the sale was sought to be pre-empted couldnot be properly enjoyed without the enjoyment of these things in common, and that justified the right to pre-empt the sale as a reasonable restriction on the first defendant's right to hold, acquire and dispose of property which was a fundamental right guaranteed by Article 19(1)(f) of the Constitution until its deletion by the 44th Amendment with effect from 30-4-1979. I may in this connection also take note of an argument advanced by Mr. V. K. S. Chaudhary, learned counsel for the respondent, that the right to acquire, hold and dispose of property being no longer a fundamental right, the customary law of pre-emption, which was eclipsed by the constitional provision, must be deemed to have revived in full force and vigour on the deletion of Clause (f) from Article 19(1) of the Constitution. The argument was undoubtedly attractive, but, the right of pre-emption, claimed in this case being a right based in custom, it could probably be said with some justification that the custom has disappeared by desuetude over these 30 years during which it was deemed to be un-enforce-able and void on account of being an unconstitutional restriction on the right to acquire, hold and dispose of property. The Supreme Court had in Bhau Ram v. Baii Nath Singh (supra) held the law of pre-emption, on account of vicinage, to be unconstitutional and void as it imposed an unreasonable restriction on a citizen's right to acquire, hold and dispose of property, while the right of pre-emption based in common ownership or in common enjoyment of appendages and immunities was held to be valid as a reasonable restriction on the said fundamental right. It is, therefore, not necessary to decide this controversy in the present case, for even when the right to acquire, hold and dispose of property was a fundamental right, the right of pre-emption on the ground of common enjoyment of appendages and immunities was held to be valid, and as noticed above it has been found in the present case that the plaintiff did enjoy the property, already owned by him, the appendages and immunites in common with the property in suit, of which the sale was sought to be preempted, and thus the plaintiff had a lawful right to pre-empt the sale.

8. The next question which, therefore, arises for determination in this second appeal is whether the demand for pre-emption, said to have been made by the notice dated 23-2-1973, was a proper demand and could be said to have been made within a reasonable time. It has already been noticed above that the alleged making of demands by the plaintiff in July and December, 1972 has been disbelieved by both the courts below. That finding is of fact; it is based on appraisal of the evidence on record; and it could not possibly be and has not been assailed before me. It is also undisputed that the sale could be said to have been completed only when the sale deed was registered i.e., on 27-12-1972, on its being copied out in the registers maintained by the Sub-Registrar, vide S. K. Mohammad Rafiq v. Khalilul Rehman. : [1973]1SCR500 . The demand, alleged to have been made in July 1972 would, on that account, be premature and invalid. It is, therefore, necessary to first look at the notice dated 23-2-1973 Ex. 13. The notice recites the existence of the custom of pre-emption in the locality, and that Talabs need not be made according to Muslim Law. It then speaks of the sale deed having been executed on 29-6-1972. The plaintiff's right of pre-emption is then claimed on the basis of common enjoyment of the inner courtyard, the bath-room, the Dahlij and the Chabootra. It is then said that the plaintiff made a demand for pre-emption as soon as he came to know of the sale, as also after the completion of the registration. The last demand was said to have been made at Shamli before witnesses in the end of December, 1972; and that the demand was repeated on some occasions thereafter, but the first defendant avoided to comply with them and, therefore, the notice says, the first defendant was informed that unless he took the amount of consideration and executed a sale deed in favour of the plaintiff by 15-3-1973, after giving intimation of the date on which he was prepared to execute the sale deed, it would be deemed that he denied to execute the sale deed in pursuance of the plaintiff's right of pre-emption, and the plaintiff would be compelled to seek relief in a court of law, and he would be liable for the plaintiffs costs etc.

9. Two questions have been raised with respect to this notice. The first is whether the notice dated 23-2-1973 could be deemed to be a demand required to be made in accordance with the customary right of pre-emption, and second whether it could be said to have been made within a reasonable time. Of the cases cited at the bar : (1) Abdul Gaffarkhan Ajiikhan v. Abdul Jikar Dada Kachhi, (AIR 1954 Nag 113); (2) Medni Proshad v. Suresh Chandra Tewari (AIR 1943 Patna 96); and (3) Narayana Menoki v. Karthia-yani : AIR1962Ker122 were cases of pre-emption where Talabs were required to be made in accordance with the technical rules of Muslim Law. In Lokman Das v. Sheorai Kumar. (AIR 1955 NUC 1498) a Division Bench of this Court held that in a case of claim for pre-emption according to custom, the making of Talabs according to the technical rules of the Muhammadan Law was not necessary, but a demand has to be made by the pre-emptor on his coming to know of the transfer. He is to demand a transfer 'of the property to him on payment of the price paid by the vendee.' The pre-emptor should be in a position to buy the property and to decide then and there whether he wants to buy it or not He could not be allowed to wait for some months to decide whether it was profitable for him to buy the property and make a demand thereafter. In that case the sale deed was executed on the 4th May and registered on 11th May, but the notice of demand for preemption was not given until the 12th October: it was held that the notice was not valid. In Radhakishan Laxmi-narayan Toshniwal v. Shridhar Ram-chandra Alshi : [1961]1SCR248 ) it was held by the Supreme Court that the right of pre-emption is a weak right. There are no equities in favour of a pre-emptor. This case was followed in Ram Saran Lall v. Mst. Domini Kuer. : [1962]2SCR474 in which the Supreme Court held that in order to give the right of pre-emption a sale is complete only when the sale is registered, of course, in case of tangible immovable property worth Rs. 100/- and more; and registration is not complete till the document to be registered has been copied out in the records of the registration department. The Supreme Court held that a Talabmade before such completion of registration was premature and invalid. This view of the law was reiterated by the Supreme Court in S. K. Mahammad Rafiq v. Khalilul Rehman : (1972)IILLJ328SC . It was urged before the Supreme Court in this case that if the demand has to be made after the sale deed has been copied in the books of the Sub-Registrar it would be virtually impossible or at any rate extremely difficult for any pre-emptor to make the first demand as promptly as required under the principles of Mahomedan Law. It was said that the pre-emptor could not be expected to keep a perpetual watch. The Supreme Court met this argument by saying that it was not -a matter for the Court to consider but for the Legislature to remedy.

10. Having considered the terms of the notice, which alone is now relied upon as demand for pre-emption, required to be made under the law, I am of the opinion that the lower appellate court is in error in having treated it as a valid notice of demand for pre-emption and further to have held that the demand by that notice was made within a reasonable time. As declared by the Supreme Court the right of pre-emption is a weak right and any legitimate device is sufficient to defeat it. Making of the oral demands for pre-emption, said to have been made in July and the last week of December, 1972, have been disbelieved by the lower appellate court. It can therefore, be said that the notice contains a false assertion in that it bases the claim for pre-emption on the allegation that those demands for preemption were made. Indeed, if it was permissible to make a demand for preemption by a notice in writing, according to the custom prevalent at Shamli, the proper thing for the plaintiff to have done was to serve a notice demanding pre-emption as soon as he came to know of the completion of the registration of the sale deed on 27-12-1972. Since it was the plaintiff's own case that he made a demand in the end of December, 1972, falsely though, it could be assumed that the plaintiff knew of the completion of the registration of the sale deed as soon as that event occurred on 27-12-1972 or, at any rate, immediately thereafter and since his allegation of having made anoral demand in the end of December, 1972 also implies the knowledge that the making of an immediate demand was necessary, it follows that the plaintiff ought to have made and proved that he did make a proper demand for permission in the end of December, 1972. The law is that the demand should be made within a reasonable time. What time is reasonable, is a question which is to be answered on the facts of each case. The basic rule of Muslim Law has been that a demand for pre-emption, at any rate the first demand, the Talab-I-Mowasivat or the jumping up demand, must be made immediately and without any loss of time. On his own case, the plaintiff knew that he had to make a demand for pre-emption as quickly as possible. It was not suggested by him that he was prevented from making the demand for any reason whatsoever, immediately after he came to know of the completion of the sale; sought to be pre-empted, by the registration of the sale deed on 27-12-1972. There was no justification, according to the plaintiff's own case to wait till 23-2-1973 to make the demand for pre-emption Indeed, here too it is the plaintiff own case, in the notice itself, that he made some more demands between the end of December 1972 and the service of this notice. The plaintiff has not cared to prove the making of any such demands. His case that he made a demand in December, 1972 has been disbelieved. It follows that the plaintiff did not make any demand for preemption at any time before 23-2-1973 and he tried to cover up his omission by making wrong allegations in the notice that he had made demands earlier, which the first defendant had failed to comply with. Even so, the notice does not, in so many words, make a specific demand for pre-emption. All that it says and means is that the demand for pre-emption having already been made and the plaintiff being entitled to pre-emption, on the basis of those demands he was giving an opportunity to the first defendant to comply with them, i. e.. the demands already made by him, by executing a sale deed in the plaintiff's favour within one month on receiving the sale consideration after giving prior intimation of the date on which he was prepared to exe-cute the sale deed to the plaintiff, failing which the plaintiff shall deem that the first defendant denied his, that is the plaintiff's claim, for pre-emption. This is followed by the threat of suit. If the making of a demand for preemption, and the making of it within a reasonable time, has been essential, according to the custom of pre-emption, pleaded by the plaintiff, it follows that the necessary demand was not made at all and not at all within a reasonable time of the completion of the sale sought to be pre-empted. The view of the lower appellate court to the contrary is, in my opinion, erroneous in law.

11. In the result, the appeal succeeds and is allowed with costs. The judgment and the decree under appeal are set aside. The plaintiff's suit shall stand dismissed with costs throughout.


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