Sheikh Mohammad Rafiq Vs. Khalilul
Rehaman & ANR  INSC 139 (3 May 1972)
CITATION: 1972 AIR 2162 1973 SCR (1) 500 1972
SCC (2) 336
Mohammedan Law--Demand in a pre-emption suit
has to be made after sale-deed having been copied out in Sub Registrar's
Books-Date entered In the book is date of sale.
Law Reform-Mohamedan Law-Pre-emption, suit
for-Requirement of demand.
A muslim left behind him as his heirs, his
widow, two sons, and 4 daughters A, B, C and D., In 1941, the heirs partitioned
his property. A portion was allotted to the widow and the sons and 'the
remaining portion to the daughters.
Respondent No. 1 purchased the portion
allotted to the widow and the sons. On August 19, 1952, he also entered into an
agreement with the 4 daughters for the purchase of their portion of the
property within 3 months. The sale was, however, not completed. On August 11,
1953, all the 4 daughters executed an agreement of sale in favour of the
appellant. of the 4 daughters, D, however, changed her mind and on August 14,
1953, executed a sale-deed in favour of respondent No. 1. The other 3
daughters, however, sold their shares to the appellant on August 17, 1953. The
sale, however, was actually registered in the books of the Sub- Registrar on
October 6, 1953.
Thereafter, the appellant filed a suit
against D, (respondent No.2) for specific performance of her part of the
agreement. Respondent No. 1 also filed a suit for possession by pre-emption on
the ground that he had become a co-sliarer with the other 3 daughters by virtue
of the sale affected in his favour by D of her share. The trial Court dismissed
the suit for specific performance, but the suit relating to pre-emption was
decreed in favour of Respondent No. 1. The appellant failed before the first
appellate Court, and his appeals to the High Court were also not successful.
The High Court upheld the decree of dismissal of the suit for specific
performance filed by the appellant;
and as regards the suit for pre-emption, the
High Court concluded that respondent No. 1 was entitled to pre-emption.
In the appeal arising out of the suit for
pre-emption, the sole contention raised by the appellant was that under
Mohammedan Law, no right of pre-emption accrues unless a demand for pre-emption
is made and such a demand could only be made after the, completion of the sale
of property sought to be preempted. It was contended by the appellant that
since the only demand was made on August 17, 1953, the demand was premature
because the- actual registration of the sale deed in favour of the appellant by
the three daughters was not completed in the books of the Sub-Registrar till
October 6, 1953 and therefore, the suit for preemption was bound to fail.
Dismissing the appeals,
HELD : (i) After the pronouncement of this
Court in Ram Saran Lall's case, the necessary demands in a pre-emption suit had
to be made after the sale had been completed not by execution or registration
of 501 the sale-deed but by the sale-deed having been copied out in the
Sub-Registrar's books and it would be the date entered in that book which was
to be considered as the date of sale. [505B] (ii) The appellant set up in this
Court a wholly new case which was not agitated before any of the Courts below.
The point whether the demands made were premature or complied with the rules of
Mohammadan Law could only be determined by reference to the entire evidence and
is not a pure question of law. Even in the special leave petition the point was
not raised. Accordingly the appellant cannot be allowed to, raise the question
of invetlidity of the demands at the late stage and therefore the suit for
pre-emtion must fail.
[506D--E] Ram Saran Lal and Ors. v. Mst.
Domini Juer & Ors.  2 S.C.R. 474. referred to.
(iii) The Mohammedan Law relating to demand
before filing a, suit for pre-emtion is of a highly technical nature. The
talabi-imowsaibat is spoken of as the first demand and talab-i-ishad is the
second demand The third demand consists of the institution of the suit for pre-
emption. Both the talabs are conditions precedent to the- exercise of the right
of pre-emption. The first talab should be made as soon as the fact of the sale
is known to the claimant. Any unreasonable or unnecessary delay will be
construed as an election not to pre-empt. There are other highly technical
rules which a pre-emptor has to follow before he can succeed in a suit for
pre-emption. A strict compliance with all the requirements of the demands which
are necessary before a pre-emptor can succeed in a suit for pre-emption under
the Mohammedan Law may became very difficult, particularly, on the question of
promptness and avoidance of delay with regard to the first demand. A sale shall
be deemed to be completed only after the sale-deed has been. copied in the
books of the Sub-Registrar. If the demand has to be made after such completion
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 Mohammedan Law. A pre- emptor cannot be expected to keep a
perpetual watch with regard to the point of time when the office of the 'Sub-
Registrar would copy out the sale-deed in the prescribed book. It is, however,
a matter for the Parliament to make suitable legislation to overcome this
difficulty. [505F] Principles of Mohamedan Law, by Mulla, 16th Edn. referred
(iv) The other appeal arising out of the suit
for specific performance also fails, because, first, the respondent had a right
of pre-emption, and secondly, the earlier agreement dated August 19, 1952
entered into between Respondent I and 4 daughters still subsisted and the
appellant had no right to bring a suit for specific performance against 'D' by
virtue of the subsequent agreement dated August 11, 1953.
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 691 and 692 of 1967.
Appeals by special leave from the judgment
and order dated July 12, 1966 of the Allahabad High Court in Second Appeals
Nos. 1031 and 1032 of 1959.
M. C. Chagla and S. S. Skukla, for the
appellants in both the appeals).
502 C. B. Agarwala and K. P. Gupta, for
respondent No. 1 (in both the appeals).
A. N. Goyal, for respondent No.- 2 (in C.A.
No. 691 of 1967).
The Judgment of-the Court was delivered by-
Grover, J. These appeals have been brought by special leave ,from a common
judgment of the Allahabad High Court whereby the dismissal of the suit for
specific performance filed by the appellant was maintained and the decree for
possession by pre-emption in favour of respondent No. 1 was confirmed.
One Gauhar Ali was the owner of a pucca two
storeyed house in the city of Moradabad. On his death he left behind as his
heir,,, his widow Musaimmat Begum, two sons Liaqat Ali and Ishtiaq Ali and four
daughters Sughara Begum, Kubra Begum, Mehmooda Begum and Chhoti Begum. In 1941
the heirs of Gauhar Ali partitioned the property. According to the partition
the house in dispute was divided longitudinally east and west. The western
portion was allotted to the widow and the sons and the eastern portion came to
the share of the four daughters. Respondent No. 1 purchased the western portion
of the house from the widow and the ons. On August 19, 1952 he also entered
into an agreement with the four daughters for the purchase of their part of the
house, namely, the eastern portion. The period in which the sale- deed was to
be executed was three months but it appears that the sale was not completed. On
August 11, 1953 all the four daughters executed an agreement of sale in favour
of the appellant. Musammat Chhoti Begum, however, changed her mind and executed
a sale-deed in favour of respondent No. 1 on August 14, 1953. The other three
daughters, however, did not go back on the agreement entered into with the
appellant and they got a sale deed transferring their share registered in
favour of the appellant on August 17, 1953. This sale was, however, actually
registered in the books of the Sub- Registrar on October 6, 1953.
On September 9, 1953 the appellant filed a
suit against res- pondent No. 2 (Chhoti Begum) for specific performance of her
part of the agreement. Respondent No. 1 also filed on February 6, 1954 a suit
for possession by pre-emption on the allegation that he had become, a co-sharer
with the other three daughters by virtue of the sale effected in his favour by
Chhoti Begum of her share in the eastern portion of the house. Both the suits
were, tried and disposed of by the trial court which held that respondent No. 1
was not a bona fide purchaser for value but since he had a. right ,of pre-
emption the suit for. specific performance was dismissed and the suit relating
to pre-emption was decreed in favour of respondent No. 1. The appellant filed
appeals before the first appellate court, which. failed. He preferred two
appeals to the High Court which upheld the decree of dismissal in the suit for
specific performance filed by the appellant. As, regards the suit for
preemption it was held that the ground of vicinity was no longer available in
view of the judgment of this Court in Bhau Ram v. B. Baijnath Singh(1). The
High Court, however, came to the conclusion: that respondent No.1 was a sharer
in the appendage common gate and common passage-and therefore he was entitled
In the appeal arising out of the suit for
pre-emption the sole contention raised by Mr. Chagla is that under the
Mahomedan Law no right of pre-emption accrues unless a demand for preemption is
made and such a demand can only be made after the completion of the sale of the
property sought to be preempted. For the purposel of finding out whether the
sale had been completed the court had to consider the provisions of the Transfer
of Property Act 1882 and the Registration Act 1908 and not the Principles of
Mahomadan Law. Our attention has been invited to a decision of this Court in
Ram Saran Lall & Others v. Mst. Domini Kuer & Others(2). There a sale
deed had been executed on January 31, 1946 and presented for registration on
the same date.
On coming to know of the execution of the
saledeed the pre- empter made a talab-i-mowasibat on February 2, 1946. But the
deed was actually copied out in the registration books on February 9, 1946. The
suit for pre-emption had been resisted on the ground that the talab (demand)
had been made prematurely. By a majority this Court held that me sale was
completed only on February 9, 1946 when the registration was complete and that
the talab was made prematurely and, therefore, the suit must fail.
Now prima facie it would appear that in
accordance with the above decision the sale sought to be preempted by
respondent No. 1 could not be regarded as having been completed until October
8, 1953 when the sale deed was copied out in the books of the Sub-Registrar.
The talab had been made according to the evidence which was accepted by the
courts below on August 17, 1953, namely, the day on which the sale deed in
favour of the appellant by the three daughters was got registered by the
SubRegistrar, but the registration of which was not completed in the books of
the Sub-Registrar till October 6, 1953. Mr. Chagla has contended strenuously
that the only demand alleged to have been made was on August 17, 1953 and the
suit for pre-emption was bound to fail as 'being premature according to the
ratio of (2) the decision of this Court in Ram Saran Lall's case.
(1)  3 Suppl. S.C.R. 724.
(2)  2 S.C.R. 474 504 The difficulty in
the way of the appellant is that a wholly new case is now being set up on his
behalf by Mr. Chagla.
In the plaint it was stated in para 14 that
as soon as the plaintiff came to know about the purchase of the property by
defendant No. 1 ,he fulfilled We condition of pre-emption according to Mahomadan
Law and sent massage to defendant No.
1 and also served a notice that he must take
from the plaintiff the sum of Rs. 3750/- paid by him and transfer to the
plaintiff the portion purchased by him from defendant Nos. 2 to 4 but he did
not pay any heed. In the written statement in para 4 it was asserted by
defendant No. 1 the present appellant that the plaintiff did not fulfill any
condition of pre-emption nor did he ever place any demand orally or in writing
before the contesting defendant regarding the purchase and reconveyance of the
property in respect of which pre-emption was sought. The allegation of the
plaintiff that he had fulfilled any demand according to the Mahomedan Law was
totally incorrect and against the facts. On the above pleadings on the point
the issue was framed in the following terms "Whether necessary demands of
pre-emption as required by Hanafi Law were performed by the plaintiff ?"
The trial court discussed the evidence led on the above issue and held that
demands had been properly performed in accordance with law. The evidence
related mainly to what happened on August 17, 1953 when the plaintiff was
informed of the sale deed which had been executed in favour of defendant No. 1.
That was the first demand and a second demand was also performed later. The
date on which the second demand was made is, however, not mentioned in the
judgment of the trial court. In the appeal against the decree of pre-emption
reference was made to the evidence led on the question of demand and this is
what the learned Additional District Judge said :
"Again addressing Haji Nisar and
Mehruddin witnesses he said that he performed the first demand in their
presence and the second demand was again performed before them and that if it
was necessary they would be summoned as witnesses." Now this judgment was
delivered on February 13, 1959 by which time the law down by this Court in Ram
Saran Lall's case(1) could naturally not have come to the notice of the counsel
for the parties and the same could not have been referred to before the
Additional District Judge. But by the time the appeal came to be decided by the
High Court- the judge meat was delivered in July 1966-the law had been settled
by this Court and if the appellant wanted to rely on the argument which has been
raised before us there is no reason or justification for not having done so at
that (1) 2 S.C.R. 474.
505 step. It It must be remembered that the
entire litigation had proceeded on the basis that the rules of Mohamodan Law
relating not only to pre-emption but also to the point of time when the sale is
completed were being applied by the courts. After the pronouncement in Ram
Saran Lall's(1) case it became settled that the necessary demands in it
preemption suit had to be made after the sale had been completed not by
execution or registration of the sale deed but by the sale deed having been
copied out in the sub- Registrar's Books and it would be the date entered in
that book which was to be considered as the date of sale.
According to Mr. Chagla the demands on the
evidence of the respondent himself, were made before the 6th of October 1953
and not afterwards. This was a question of fact which was, never investigated
by any of the courts. Even if the argument canvassed before us had been raised
before the High Court that could have gone into the matter and considered the
evidence on the record to find out when the, demands were made. Our attention
has been called to a registered notice having been served on the appellant by
the respondent. There is mention of such a notice in para 14 of the plaint.
This notice, Ext. 10, was sent after October 6, 1953, its date being November
30, 1953. After giving the details necessary for showing the right of
pre-emption of the plaintiff it was stated that the demand had already been
made and that for the purpose of avoiding any dispute before filing the suit
for pre-emption the vendee was being informed that he should accept the amount
of consideration and give the property to the plaintiff. Mr. Chagla says that
this notice could hardly be regarded as a proper demand according to the
requirements of Mahomedan Law.
The Mahomedan Law relating to demand before
filing a suit for pre-emption is of a highly technical nature. It is stated in
the Principles of Mahoinedan Law by Mulla, 16th Edn. that the talabi-mowasibat
is spoken of as the first demand and the talab-i-ishad as the second demand.
The third demand consists of the institution of the suit for pre-emption. Both
the talabs are conditions precedent to the exercise of the right of
pre-emption. The first talab should be made as soon as the fact of the sale is
known to the claimant. Any unreasonable or unnecessary delay will be construed
as an election not to pre-empt. In some of the cases referred to a delay of 24
hours; or even 12 hours was considered too long and it was held that where
there has been so much delay the pre-emptor was not entitled to sustain his,
claim for pre-emption. There are other highly technical rules about the
presence of witnesses and the nature of evidence which they should give with
regard to the second demand, the view of the High Courts being conflicting in
the matter; (See pages 242, 243).
It seems to 'us that a strict compliance with
all the requirements of the two demands which are necessary before a pre-emptor
can (1)  2 S.C.R. 474 506 succeed in a suit for pre-emption under the
Mahomedan Law may become very difficult, particularly, on the question of the
promptness I and avoidance of delay with regard to the first demand. As stated
before a sale shall be deemed to be completed only after the sale deed has been
copied in the books of the Sub-Registrar. If the demand has to be made after
such completion it would be virtually impossible or at any rate extremely
difficult for any preemptor to make the first demand as promptly as required
under the principles of Mahomedan Law. It cannot be expected that a pre-emptor
should keep a perpetual watch and go on making constant inquiries with regard
to the point of time when the office of the Sub-Registrar would copy out the
sale deed in the prescribed book. However, that is a matter on which
legislation may become necessary and that is for the Parliament to consider and
not for US.
It would be abundantly clear from what has
been stated above that the question of demand has not been examined by any of
the courts keeping in view the law laid down by this Court and the principles
to which reference has been made.
Obviously it was the appellant who was to
blame for not agitating these matters at least before the High Court. The point
whether the demands made were premature or complied with the rules of Mahomedan
Law, could only be determined by reference to the entire'evidence and is not a
pure question of law. It is surprising that even in the petition for special
leave to this Court the points which Mr. Chagla has raised were not canvassed.
In the Statement of the Case only the matter was put in these words :
"Further, the respondent could not claim
pre-emption as a co-sharer (Shafi-e-Sharik) he had not become owner of the one
fourth share in the eastern portion before the sale deed in favour of the
appellant. The sale deed in his favour was registered on the, 17th August 1953,
sometime after the three sisters registered the deed in favour of the appellant.
As held by this Hon'ble Court in the case reported in 1962(2)SCR 474 the demand
made by the respondent at 4 or 5 p.m. on 17-8-1953 was not valid".
Mr. Chagla, while fairly and properly
admitting that all these infirmities are present, has maintained that we should
give a decision on the question of demand in the light of his argument and that
the pre-emptor whose right is weak and is of a piratical nature should not be
allowed to succeed unless he satisfies the court that he has strictly complied
with the requirements of law relating to pre-emption. In our judgment
adjudication of this matter which is a mixed question of law and fact should
have been invited from the courts below and in the absence of any such decision
it will not 507 be just and proper for us, at this stage, to allow the matter
to be re-opened and to entertain the contention of Mr.Chagla on the question of
the invalidity of the demand or demands made by the respondent before filing
the suit for preemption.
Accordingly the appeal arising out of the
suit for pre- emption fails and it is dismissed. But the parties will bear
their own costs throughout.
In the other appeal arising out of the suit
for specific performance it had been decided by the first appellate court that
the preliminary condition specified in the agreement Ext. A-3 which had been
executed by Mussamat Chhoti Begum and her 3 sisters in favour of the respondent
about getting the premises vacated from the tenant had not been satisfied and
therefore the agreement had not lapsed. Respondent No.
1 could have enforced that agreement and the
appellant had no right to bring a suit for specific performance against Chhoti
Begum by virtue of the subsequent agreement dated August 11, 1953. The suit for
specific performance was liable to be dismissed both on the ground that the
respondent had a right of pre-emption and that the appellant could not enforce
the agreement dated August 11, 1953 in the presence of the earlier agreement
dated August 19, 1952.
The High Court had affirmed that view. On
behalf of the appellant an attempt was made by Shri M. C. Chagla to assail the
above decision but we are unable to find any error in the judgment of the first
appellate court or the High Court of a nature which would justify interference
Therefore the appeal arising out of the suit
for specific performance also fails and it is dismissed. In that appeal the
parties will bear their own costs in this Court.