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Musammat Zamani Begam Vs. Khan Muhammad Khan and Musammat Asghari Begam - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in81Ind.Cas.586
AppellantMusammat Zamani Begam
RespondentKhan Muhammad Khan and Musammat Asghari Begam
Cases ReferredBegam v. Muhammad Yakub
Excerpt:
muhammadan law - pre-emption--demands made before registration of sale-deed, whether defective. - - we have had the statements of the witnesses read to us and we are satisfied that there was in the second demand both a reference to the first demand and there wras also an invocation of the witnesses......out-and-out sale, as english lawyers understand the term, or a contract of sale subject to a right of option in the intending purchaser which deprived the intending vendor of any right to refuse to complete the sale, should the intending vendee exercise his option to purchase.12. this exposition of the law was accepted by all the other judges except banerji j. who delivered a dissenting judgment. ihis case, therefore, so far as this court is concerned, is conclusive authority for holding that a right of pre-emption arises not only when an out-and-out sale has been completed but also when a complete contract of sale (without any option in the vendor) has been made.13. the learned advocate for the defendant wanted, to invite our attention to rulings of the calcutta high court which.....
Judgment:

1. This is a defendant's appeal arising out of a suit for pre-emption. The right of pre-emption was originally based both on an alleged custom and on the Muhammadan Law. Both the Courts below have found that the existence of custom has not been established in this case. That finding is in no way challenged in appeal and must; therefore, be accepted as final.

2. On the question of the applicability of the Muhammadan Law the Court of first instance was of opinion that the demands required by that law were hot fully complied with. It accordingly dismissed the suit. On appeal, the learned District Judge, has come to a contrary conclusion and has held that there has been no flaw in the performance of the necessary conditions.

3. In appeal four points have been urged as showing that the demands were not in accordance with the requirements of the Muhammadan Law.

4. The first is that the demands were made before the actual registration of the sale-deed in question.

5. The second is that there was no demand made to the vendee.

6. The third is that there was no reference to the first and second demands. And the last point is that the invocation of the witnesses was not made in the proper way.

7. It would be convenient to dispose of the last three points first. It is not suggested that possession of the property had passed to the vendees. It is, therefore, obvious that the second demand made to the vendor was quite sufficient. We have had the statements of the witnesses read to us and we are satisfied that there was in the second demand both a reference to the first demand and there wras also an invocation of the witnesses. None of these three points, therefore, have any force.

8. With regard to the first point it has been strongly contended on behalf of the defendant that inasmuch as under the present law no sale of immoveable property of the value of over Rs. 100 can be completely effected except under a registered deed, the demands were premature as they were made before the sale was perfected by registration.

9. This contention, however, in view of the pronouncement of the Full Bench in the case of Begam v. Muhammad Yakub 16 A 344; A.W.N. (1894) 101 : 8 Ind. Dec. (N.S.) 224 (F.B.) is without any force.

10. In an earlier Full Bench case reported as Janki v. Girjadat 7 A 482; A.W.N. (1885) 97 : 4 Ind, Dec. (N.S.) 749 (F.B.) it had been held that a right of pre-emption may in certain circumstances arise even in the absence of a registered sale-deed.

11. In the Full Bench case in Begam v. Muhammad Yakub 16 A 344; A.W.N. (1894) 101 : 8 Ind. Dec. (N.S.) 224 (F.B.) the learned Chief Justice who delivered the leading judgment in the case at page 347 after pointing out the various conditions required in order to give rise to a right of preemption, remarked:

This leads me to the conclusion that what was considered in Muhammadan Law to be a sals upon which a right of pre-emption woulcl arise included an offer unconditional on the part of the vendor and made by him to the purchaser, or intending purchaser, to sell and accepted by the intending purchaser although the offer and acceptance were subject to the exercise of an option by the intending purchaser, the exercise of which option was not a necessary condition to the right of pre-emption arising What apparently was considered as giving a right of pre-emption was either an absolute out-and-out sale, as English lawyers understand the term, or a contract of sale subject to a right of option in the intending purchaser which deprived the intending vendor of any right to refuse to complete the sale, should the intending vendee exercise his option to purchase.

12. This exposition of the law was accepted by all the other Judges except Banerji J. who delivered a dissenting judgment. Ihis case, therefore, so far as this Court is concerned, is conclusive authority for holding that a right of pre-emption arises not only when an out-and-out sale has been completed but also when a complete contract of sale (without any option in the vendor) has been made.

13. The learned Advocate for the defendant wanted, to invite our attention to rulings of the Calcutta High Court which laid down a contrary proposition of law, On the other hand it was pointed out by the learned Vakil for the.respondents that the Bombay High Court has taken not quite the same view. In view of a clear pronouncement by a Full Bench of this Court, which has been followed for so many years, it is unnecessary for us to con Sider the cases of the other High Court a That Full Bench case is binding on us.

14. In view of this interpretation of law it is quite clear that the demands which were made soon after the execution of the sale-deed though before its actual registration were by noimeans premature and defective.

15. The result therefore, is that the appeal fails and is hereby dismissed with costs.


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