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PETITIONER: SHEIKH MOHAMMAD RAFIQ

       Vs.

RESPONDENT: KHALILUL REHAMAN & ANOTHER

DATE OF JUDGMENT03/05/1972

BENCH: GROVER, A.N. BENCH: GROVER, A.N. HEGDE, K.S.

CITATION:  1972 AIR 2162            1973 SCR  (1) 500  1972 SCC  (2) 336

ACT: 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.

HEADNOTE: 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

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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. [1962]  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 to. (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

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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.

JUDGMENT: 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 res- 503 pondent No. 1. The appellant filed appeals before the  first

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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 appendagescommon  gate  and  common passage-and therefore he was entitled to pre-emption. 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) [1962] 3 Suppl.  S.C.R. 724. (2) [1962] 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  fulfil  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

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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 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)[1962] 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.

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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) [1962] 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, some time  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

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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  by   us. 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. S.C.                                                 Appeals dismissed’- -LI286 SuP.  CI/72 508