Court : Allahabad
Reported in : AIR1952All686
..... contention of the learned counsel, for it is plain that here the author is only dealing with one of the essentials of the mohammedan law of pre-emption viz. that the right of pre-emption accrues by reason of milk or ownership only. as soon as the owner e.g. of a mansion, converts it into a ..... the reasons given above, i have reach ed the conclusion that, at the present day, a waqf estate is not competent, under the mohammedan law, to claim a right of pre-emption, in the case of a sale of an adjoining property.40. some arguments were addressed to us on the question whether a waqf ..... estate, as a juristic person, may validly comply with the performance of the requisite talabs and thereafter institute a proper suit for claiming pre-emption.46. as seen above, the substantive mohammedan law, for reasons of its own, which i have endeavoured to indicate in an earlier part of this judgment has chosen to deny ..... their judgment that they had not found any direct precedent for their decision, nor have they referred to any authority on mohammedan law, as none, according to them, was available to them.45. in view of these authorities, one might feel inclined to hold that there was no juristic reason for denying to a ..... mosque, or other waqf estate, the right to claim pre-emption in case an adjoining estate e.g. a mansion, was sold. the .....Tag this Judgment!
Court : Gujarat
Reported in : 250ITR542(Guj)
..... v. maruthi rao : 6scr727 and in the case of hiralal agrawal v. rampadarath singh : 1scr328 , decided in the context of pre-emption claimed under the mohammedan law and the dispute arising under the tenancy act and in the context of a document executed and registered on or before dates, may not be ..... court has, in our opinion rightly decided the issue. in our opinion, considering the definition of 'capital asset', 'transfer' and the provisions contained in section 45 for capital gains, the view taken by the division bench in the case of arundhati balkrishna : 138itr245(guj) is the correct view.30. in the ..... registration, if the other conditions are complied with.'28. the division bench pointed out that the question has arisen in the context of section 45 of the income-tax act, 1961, which provides that any profit or gain arising from the transfer of a capital asset effected in the ..... took place.'17. thus, any profits or gains arising from the transfer of capital assets effected in the previous year as contemplated under section 45 are required to be taken into consideration and will be chargeable to income-tax under the head 'capital gains' and shall be deemed to ..... the division bench, in the case at arundhati balkrishna : 138itr245(guj) , held that the transfer of capital asset becomes effective under section 45 of the income-tax act from the date on which the document was executed, in case its registration was subsequently admitted before the registrar. thus, .....Tag this Judgment!
Court : Rajasthan
Reported in : AIR1960Raj125
..... the learned judges have not properly appreciated the ratio decidendi in shankar lal's case. the reasoning behind that judgment is that the right to claim pre-emption under mohammedan law must exist not only on the date of the sale but also on the the date of the institution of the suit and also on the ..... on such terms as those on which such latter immovable property is sold to other person.' it was further observed by mahmood j. that'under mohammedan law right of pre-emption is not a right of repurchase either from the vendor or from the vendee, involving any new contract oi sale, but simpty a right of ..... 1933 pat 653, where it has been, stated that --'it seems to be settled law now that according to the mohammedan law of pre-emption, where both the vendee and the pre-emptor are in the category of pre-emptors, the result is not the dismissal, of the suit, but that the property must be shared by the two ..... in panch gujar gaur brahamans' case, ilr (1954) 4 raj 84: (air 1954 raj 100) (fb) that according to the mohammedan law, the right of pre-emption is a personal right of the pre-emptor, are not correct and should be taken to be overruled by the decision of their lordships of the supreme court in the ..... in equal degree, the pre-emptor has a right to pre-empt to an equal extent. reference may be made in. this connection to muhammad yaqub v. kanhai lal, ilr 44 all s3 : (air 1922 all 157), ziauddin v. md. abul hasan, ilr 45 all 487 : (air 1923 all 520) and nadir husain v. sadiq hussain, ilr .....Tag this Judgment!
Court : Mumbai
Reported in : (1929)31BOMLR374; 118Ind.Cas.548
..... the regulation of 1827, i think in the absence of custom a non-mahomedan bene israel vendee cannot be bound by the law of pre-emption even though the law of pre-emption may have been established aa customary law applicable to hindus and mahomedans in ahmed-abad. in nursut reza v. umbul khyr bibee (1867 ..... if i may say so with great respect, somewhat reluctant and hesitating.26. assuming, however, without deciding, that the general question, whether the rule of pre-emption may be enforced among mahomedans in ahmedabad and among hindus in that place, must, on the strength of these rulings, be answered in the affirmative, there ..... in the city : see jagjivan haribhai v. kalidas mulji i.l.r(1920) . 45 bom. 604 and ram chand khanna v. goswami ram puri (1i.l.r923) .all. 501.10. the general mahomedan law of pre-emption is not applicable by legislation but can only be enforced in the city of ahmedabad as ..... land. it is urged on behalf of the appellant that the right of the plaintiff to pre-empt is an incident which the custom of pre-emption attaches to the property in ahmedabad, and the purchaser, even though ..... whether the general mahomedan law of pre-emption can be enforced against a mahomeden israel, the defendant vendee in ahmedabad. both the lower courts held that the plaintiff has not proved the right to pre-empt.2. the property in suit is an open land about 30 feet by 45 feet adjoining the plaintiff's .....Tag this Judgment!
Court : Supreme Court of India
Reported in : AIR1954SC417; 1954(2)BLJR451; 1SCR70
..... a member of a particular community or group. the whole doctrine, as enunciated above, is based upon the fallacious assumption that the right of pre-emption is a personal right arising out of certain personal conditions of the parties like religion, nationality or domicile and this fallacy crept into our law ..... by muhammadan law. the only difference that is noticed in one of the decided authorities (vide ram chandra v. goswami, 45 all. 501) is that the custom of pre-emption prevalent in the city of banaras is confined to house properties only and does not extend to vacant lands; but this view ..... might be. mr. justice mahmood elaborately reviewed all the original authorities of muhammadan law on the point and expressed the opinion that the right of pre-emption under muhammadan law partakes strongly of the nature of an easement right, the 'dominant tenement' and the 'servient tenement' of the law of easement ..... to be the rule of decision where the parties to a suit are muhammadans, the courts in british india administered the muhammadan law of pre-emption as between muhammadans entirely on grounds of justice, equity and good conscience. here again there was no uniformity of views expressed by the different ..... of mahomedan law (vide, page 14) has referred to a passage in the mahanirvana tantra which, according to the learned author, implies that pre-emption was recognised as a legal provision according to the notions of the hindus. but the treatise itself is one on mythology, not on law and .....Tag this Judgment!
Court : Madhya Pradesh
Reported in : AIR1958MP423
..... 1949) nag 740 : (air 1949 nag 361) (h), held that where all the parties are mohammedans, it would not be inequitable to apply the mohammedan law of preemption. as regards the question about tenability of a claim of pre-emption under the muslim law in view of article 19(1)(f) of the constitution the learned judge did ..... aforesaid, the judgmentsand decrees of the courts below cannot be upheld.they are consequently set aside. the present appealsucceeds and is allowed. the plaintiff appellant'sclaim for pre-emption upon deposit of rs. 700/-minus the costs awarded within 2 months from todayin the trial court, is decreed. in default, the appealshall stand dismissed with ..... the two demands could not be combined in one, field that the formalities as laid down by the cases of ilr 27 all 160 (a) and ilr 45 all 290: (air 1923 all 251) (b) had not been complied with.i fail to see why the second demand could not be made immediately after ..... to mention the fact of having made the talab-i-mowasibat previously, although the witnesses to the two demands may be the same.in the case of ilr 45 all 290: (air 1923 all 251) (b) another division bench of the same high court held that the failure to mention the previous demand (talab- ..... . the learned appellate judge, relying on the cases of of mubarak husain v. kaniz bano, ilr 27 all 16ft (a) and sadiq ali v. abdul, ilr 45 all 290: (air 1923 all 251) (b) held that the plaintiff had failed to prove that he had made the two demands as required by the 'hedaya.' .....Tag this Judgment!
Court : Gujarat
Reported in : (1982)29CTR(Guj)85; 138ITR245(Guj)
..... nathan v. s. v. maruthi rao, : 6scr727 , and hiralal agrawal v. rampadarath singh : 1scr328 , rendered in the context of the right of pre-emption claimed under the muhammadan law and the dispute arising under the tenancy act and in the context of competing documents executed and registered on different dates, will not be attracted ..... in so far as the provision contained in s. 45 of the act is concerned. in interpreting the expression 'transfer of capital asset' it would not be possible to take the view that the transfer ..... was open to the department to support the decision that the income in question was exigible to tax under the head 'capital gains' under s. 45 by any other reasoning based on the relevant provision of law particularly when it did not require any investigation of facts which were not on record ..... on or after 1st march, 1970, the gains arising out of such a transfer would be exigible to tax as capital gains under s. 45 provided the land was situated within the limits of a municipal corporation. that is the reason why the question assumed importance before the tribunal, the ..... of agricultural land effected before 1st day of march, 1970, would not be treated as a transfer attracting exigibility to capital gains tax under s. 45 of the act. in view of the alteration in law brought about in the aforesaid manner, even if the land in question was agricultural land .....Tag this Judgment!
Court : Rajasthan
Reported in : AIR1980Raj116
..... inayatullah, (1885) 7 all 775 (fb) and air 1954 sc 417. in gobind dayal's case, the question was: in a case of pre-emption where the pre-emptor and the vendor are muhammadans and the vendee a non-muhammadan, is the muhammadan law of preemption to be applied to the matter in advertence to ..... by abdul gani to the appellant, the plaintiffs again amended the plaint and impleaded the appellant as a party. the plaintiffs claimed the right of pre-emption on the principle of shafi-a-khalit i.e. a common right in immunities and appendages. the defendant contested this suit inter alia on the ..... brief facts leading to this appeal are that the respondents rameshwar and radhey shyam along with their father kalyan bux (since deceased) filed a suit for pre-emption against ram sukh and abdul shakoor (since deceased) (his legal representatives have been brought on record). according to the allegations as set up in the plaint ..... 'in a case arising under a wajib-ul-arz kamta prasad v. mohan bhagat (1910) 32 all 45 it was held that a subsequent transfer by a vendee was subject to the pre-emptor's right of pre-emption. in the case of khettar chandra basu v. nalinkali debi (1913), 11 all lj 527, which ..... v. mohan bhagat, (1910) ilr 32 all 45, it has been laid down that: 'the right of pre-emption being a right of substitution rather than a right of re-purchase, the vendee of property which is subject to a right of pre-emption cannot defeat the pre-emptive right by subsequently mortgaging the property and thus .....Tag this Judgment!
Court : Allahabad
Reported in : (1923)ILR45All501
..... to house property in the district. the learned judge of the court below in this judgment sholud not be followed here, because the law of pre-emption has to a large extent been adopted in this province in the villages and with respect to zamindari property. but the considerations which apply in the ..... possible proof that no such custom exists. there is no more prolific source of litigation in this province than the law of pre-emption, and it is impossible that had there been such a custom there should not have been many cases brought before the courts during this long period, ..... some years earlier, would not be sufficient to show that such a custom extended to lands within the city. the fact that no instance of the pre-emption of such lands could be established between the year 1865 and the year 1920, when this suit was brought, is, in our judgment, the strongest ..... benares. this custom has been affirmed by a long series of judicial decisions. it is argued, however, that no judicial recognition has been extended to pre-emption where the subject of sale is land as distinct from house property.3. it is true that in the course of the trial the plaintiff was ..... city. in the ruling in jagjivon haribhai v. kalidas mulji (1920) i.l.r. 45 bom. 604 the bombay high court, in dealing with a case from the surat district, refused to extend the muhammadan law of pre-emption to agricultural lands, although it was established that this law had been adopted generally with .....Tag this Judgment!
Court : Allahabad
Reported in : AIR1951All86
..... to her as dower and it was held that such a transfer amounted to a 'sale' within the meaning of the mahommedan law of pre-emption and gave rise to the right of pre-emption. mahmood j., observed in that case :'dower under the muhammadan law is regarded as a debt due by the husband to the wife ..... within the meaning of section 9, oudh laws act (xviii  of 1876). under section 9 of that act the right of pre-emption is given in respect of 'the property to be sold or foreclosed'. the avadh cases are reported in ram prasad v. rahat bibi, 18 o. c. 367 ..... the decision in the second case of kulsum bibi : air1937all25 proceeds on the same reasoning. in that case, the same learned judges discussed the passage in baillie's mohammedan law, vol. i, at p. 122, which has already been quoted in an earlier portion of this judgment, and observed :'we do not think that, according ..... ewaz under that law. the question in this case however is under the agra pre-emption act. section 4(10) provides that a sale in the pre-emption act means a sale as defined in the transfer of property act. in this way the agra pre-emption act incorporates the definition of 'sale' as given in section 54 of the ..... with the principles-of mahommedan law to which reference has been made in an earlier portion of this judgment. consequently, it must be dissented from and overruled.45. in passing, i may also notice certain decisions of the avadh court, in which it was held that a hiba-bil-iwaz was not a sale .....Tag this Judgment!