REPORTABLE  

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  157 OF 2001

Kumar Gonsusab & Ors.                     ...Appellants

VERSUS

Sri Mohammed Miyan  Urf Baban & Ors    …Respondents

J U D G M E N T

TARUN CHATTERJEE, J.

1. This appeal is directed against the judgment and

decree  dated  5th of  November,  1998  passed  by

the  High  Court  of  Karnataka  at  Banglore  in

R.S.A.  No.  831/1996,  by  which  the  second

appeal filed by the respondents was allowed and

judgment and decree of the courts below were set

aside and the suit was decreed with costs.  

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2.  The moot question that was raised by the parties

before the courts below as well as before the High

Court  was  -  whether  the  law  of  pre-emption

based on vicinage is void as held by this Court in

the case of  Bhau Ram vs. B. Baijnath Singh

[1962 Supp.3 SCC  724] and  Sant Ram & Ors.

vs.  Labh  Singh  &  Ors. [1964  (7)  SCR  756].

However, while setting aside the judgments of the

courts  below,  the  High Court  in second appeal

held that the law of pre-emption on the ground of

vicinage  could  not  be  held  to  be  void  and

unconstitutional in view of the amendment of the

Constitution.  

3. Mohd.  Ismail  Urf  Badshah-Plaintiff  No.1  (since

deceased)  and  Mohammed  Miyan  Urf  Baban-

Plaintiff  No.2  instituted  a  suit  for  permanent

injunction  against  Smt.  Hamedabegum

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(Defendant  No.  1/Appellant  No.3)  wife  of  Mohd

Yusuf  Maniyar  and  against  Kumar  Gonsusab

(Defendant  No.  2/Appellant  No.1)  and  Kumar

Shafi  Mohd  (Defendant  No.  3/Appellant  No.2)

restraining the appellants from executing a sale

deed relating to the suit property on the ground

of right of pre-emption, to purchase 6 acres 31

guntas  being  R.S.No.164/3B  situated  at

Mishrikoti village of Kalghatagi taluk, Dharwad in

the State of Karnataka (hereinafter referred to as

the  ‘suit  property’)  and  for  other  incidental

reliefs.  Be  it  mentioned  at  this  stage,  that  the

original Plaintiff No.1, namely, Mohd. Ismail Urf

Badshah  died  during  the  pendency  of  the

proceeding  and  his  heirs  and  legal

representatives were brought on record.  In  this

judgment,  the  plaintiffs  are  described  as

respondents and the defendants are described as

appellants.   

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4. The  case  that  was  made  out  by  the

respondents may be summarized as follows:-

The  suit  property  was  the  ancestral  property

belonging to the family  of the respondents,  which

was  sub-divided  among  the  co-sharers.  Smt.

Hamedabegum,  Appellant  No.  3  was  born  in  the

family  of  the  respondents  and  she  was  given  in

marriage. The respondents were adjoining owners of

the suit property and they were entitled to pre-empt

the  suit  property  on  the  ground  of  vicinage.  The

Appellant No.3 had entered into a mere agreement

to sell the suit property to Appellant Nos. 1 and 2

by a registered agreement for sale executed on 12th

of February, 1987.  The respondents claimed pre-

emption  on  the  ground  of  vicinage  under  the

Mohammedan Law and family customs in respect of

the suit property. Since on 19th of February, 1987,

the appellants attempted to mutate their names on

the basis of  the aforesaid registered agreement to

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sell,  executed  on  12th of  February,  1987,  the

respondents, after coming to know the intention of

the appellants to sell the suit property on the basis

of the registered agreement to sell, expressed their

intention  to  exercise  right  of  pre-emption  on  the

ground of  vicinage.  Since  the  Appellant  No.3  had

refused to sell the suit property to the respondents,

they were constrained to file the suit for permanent

injunction,  restraining  the  Appellant  No.3  from

executing the sale deed in favour of Appellant Nos.

1  and  2  claiming  pre-emption  on  the  ground  of

vicinage.

5. After entering appearance, the Appellant Nos. 1

to 3 had filed a written statement, denying the

material  allegations  made  in  the  plaint.  They,

however, admitted that the respondents were the

owners of the adjacent land of the suit property

and the fact of entering into an agreement to sell

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by  Hamedabegum,  Appellant  No.3  in  favour  of

Appellant Nos. 1&2 was admitted. It was alleged

in  the  written  statement  that  since  Appellant

No.3 was the owner of the suit property and had

every  right  to  sell  the  same  to  the  person  she

would  have  liked,  the  suit  for  permanent

injunction  against  the  appellants  must  be

dismissed.    

6. The  following  issues  were  framed  by  the  trial

court:

“ i). Whether plaintiffs prove that they have right of

pre-emption over the intended sale  deed executed

by defendant no.1 in favour of defendant nos. 2 and

3?

ii). Is the plaintiff entitled to pre-emption as against

all the defendants?

iii). Whether defendant nos. 1 and 3 are entitled for

compensatory costs of Rs.3000/- each?

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iv).  Whether  defendants  proves  that  law  of  pre-

emption is not applicable to State of Karnataka and

more so to agricultural land?

(v) Whether court fee paid is proper ?

(vi) What order  ? What decree ? ”

7. The trial court after framing the issues and after

permitting  the  parties  to  adduce  evidence  and

considering  them  and  also  the  materials  on

record and the law as laid down in  Bhau Ram

vs. B. Baij Nath Singh  (supra) and  Sant Ram

vs. Labh Singh (supra), dismissed the suit inter

alia  holding that the law of pre-emption on the

ground  of  vicinage  was  unconstitutional  and

void.   The  trial  Court  further  held  that  the

question  of  right  of  pre-emption  of  the

respondents in respect of the suit property could

not arise in view of the fact that the agreement

for sale could not create any interest in the suit

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property in favour of Appellant Nos.1&2 and for

this  purpose,  reliance  was  placed  by  the  trial

Court on Section 232 of the Mohammedan Law.

An appeal was carried by the respondents before

the  first  appellate  court  and the  first  appellate

court after considering the judgment and decree

of  the  trial  court  and also  after  re-appreciating

the evidence on record dismissed the appeal by

its judgment dated 6th of  March, 1996.  Against

the judgment of affirmance of the courts below, a

second  appeal  was  filed  by  the  respondents

which,  by the  impugned judgment,  allowed the

second  appeal,  holding  that  in  the  light  of  the

amendment to the Constitution, the law of pre-

emption on the ground of vicinage cannot be held

to  be  unconstitutional  and void.   However,  the

High Court had failed to deal with the question

which was decided by the trial court as well as

the appellate court to the effect whether the suit

for pre-emption brought on the basis of such an

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agreement  was  without  any cause  of  action as

there  was  no  right  to  pre-emption  in  the

respondents which could be enforced under the

law in view of Section 232 of the Mohammedan

Law. It was further held by the High Court, while

setting aside the judgments of the courts below,

that  the  respondents  had  got  right  of  pre-

emption, if the agreement for sale was going to be

given effect to by the appellants and if not then

certainly the respondents were not affected and

that if the agreement for sale was going to result

in a sale deed then such sale must be held to be

in  violation  of  the  above  provision.  With  these

findings, both the judgments and decrees of the

courts  below  were  set  aside  and  the  suit  was

decreed. It may be reiterated that the High Court,

while  setting  aside  the  judgment  of  the  courts

below, held that the law of pre-emption based on

vicinage  cannot  be  held  to  be  void  and

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unconstitutional in view of the amendment of the

Constitution.  

8. Keeping  the  aforesaid  conclusions  arrived  at

by the High Court in mind, we now proceed to deal

with the questions raised before us. So far as the

constitutionality of the right of pre-emption on the

ground of  vicinage  is  concerned,  we find that  the

High  Court,  as  noted  hereinearlier,  held  that  the

right of preemption on the ground of vicinage under

the  Mohammedan  Law  cannot  be  said  to  be

unconstitutional and void in view of the amendment

to  the  Constitution.   Whereas  the  Courts  below

relying on the two decisions, namely  Bhau Ram’s

case (supra)  and  Sant Ram’s case (Supra)  ,    held

that  the  right  of  preemption  on  the  ground  of

vicinage was unconstitutional and void.  It is true

that subsequent to the aforesaid two decisions, this

Court again reiterated the principles as laid down in

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Bhau Ram’s case (supra)  and  Sant Ram’s case

(Supra) in the case of Atam Prakash vs. State of

Haryana & Ors.  [(1986)  2 SCC 249] and also in

A.Razzaque  Sajansaheb  Bagwan  &  Ors.  vs.

Ibrahim Haji Mohammed Husain  [(1998)  8 SCC

83].   We,  however,  do  not  intend  to  go  into  this

question in this case as in view of our decision on

the  other  issue,  namely,  whether  the  suit  for

preemption  on  the  ground  of  vicinage  was

maintainable in law in view of the admitted fact that

only an agreement for sale of the suit property was

entered  into  by  the  appellant  No.  3  with  the

Appellant Nos. 1 & 2.

9. Let us now take up the other question that was

raised by the learned counsel for the parties. In

our  view,  as  indicated  herein  earlier,  the  issue

whether the suit for pre-emption on the ground

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of vicinage  could be entertainable when only a

mere agreement for sale has been entered into by

the appellant No.1 in favour of the appellant Nos.

2 and 3 in respect  of the suit  property.  In  our

view, on this account, the judgment and decree

of the High Court cannot be sustained.  

10. Admittedly,  a  registered  agreement  for  sale

was  entered  into  by  the  appellant  No.1  with  the

appellant Nos. 2 and 3. Before we proceed further,

we may refer to Chapter XIII  of the Mohammedan

Law, (Ed.19 by Mulla). Chapter XIII deals with pre-

emption under the Mohammedan Law. Section 226

says that right of pre-emption is a right which the

owner  of  an  immovable  property  possesses  to

acquire by purchase another immoveable property

which has been sold to another person. Section 232

of  the  Mohammedan  Law would  also  be  relevant

which runs as under:    

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“ 232. Sale alone gives rise to pre-emption –  

The right of pre-emption arises only out of a valid (a),  complete (b),  and bonafide (c) sale.  It does  not  arise  out  of  gift  (hiba), sadaquah  (s.171),  wakf,  inheritance, bequest  (d),  or  a  lease  even  though  in perpetuity  (e),  Nor  does  it  arise  out of  a mortgage even though it may be by way of conditional  sale  (f);  but  the  right  will accrue, if the mortgage is foreclosed (g). An exchange  of  properties  between  two persons  subject  to  an option  to  either  of them  to  cancel  the  exchange  and  take back his property at any time during his life,  stands  on  the  same  footing  as  a conditional  sale;  such  an  exchange  does not  extinguish  the  ownership  in  the property and does not give rise to the right of  pre-emption. But if  one  of  the  parties dies without canceling  the  exchange,  the transaction will mature into two sales and will give rise to the right of preemption (h). It  has  been  held  by  the  High  Court  of Allahabad that a transfer of property by a husband to his wife in lieu of  dower is a sale, and is therefore subject to a claim for pre-emption  (i).  On  the  other  hand,  the Chief  Court  of  Oudh  has  held  that  the transaction  amounts  to  a  hiba-bil-ewaz, and no claim for pre-emption can therefore arise (j).         

On a plain reading of Sections 226 and 232 of

the Mohammedan Law, it is clearly evident that the

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right of pre-emption can only accrue to an owner of

immoveable  property  when  another  immoveable

property  is sold to another person. Section 232 of

the  Mohammedan  Law  also  indicates  that  sale

alone  gives  rise  to  pre-emption.  Such  being  the

provision  made  in  Sections  226  and  232  and  in

view  of  the  admitted  fact  that  in  this  case

admittedly sale was not affected by appellant No.1

in favour of the appellant Nos. 2 and 3 in respect of

the suit property, we are not in a position to hold

that the suit for pre-emption was maintainable as

there was no cause of action to file such suit in the

absence of a sale deed effected in respect of the said

agreement for sale.

11. In this connection, Section 54 of the Transfer

of Property Act may also be referred to. Section

54 of the Transfer of Property Act says that a

contract for sale does not, of itself, create any

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interest in or charge on immoveable property.

Therefore, where the parties enter into a mere

agreement to sell, it creates no interest in the

suit property in favour of the vendee and the

proprietary title does not validly pass from the

vendors  to  the  vendee  and  until  that  is

completed  no  right  to  enforce  pre-emption

arises. Therefore, in our view, the suit for pre-

emption  brought  on  the  basis  of  such  an

agreement was without any cause of action as

there  was  no   right  of  pre-emption  in  the

respondents  which  could  be  enforced  under

the  law.  In  Radhakishan  Laxminarayan

Toshniwal,  vs.  Shridhar  Ramchandra

Alshi &Ors. [AIR 1960 SC 1368], this Court

has held that the transfer of property,  where

the Transfer of Property Act applies, has to be

under  the  provisions  of  the  Act  only  and

Mohammedan Law or any other personal law

of  transfer  of  property  cannot  override  the

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statute.  Therefore,  unless  title  to  the  suit

property  has  passed  in  accordance  with  the

Act, no right to enforce pre-emption arises. In

view of our discussions made hereinabove, we

are, therefore, of the view that in view of the

admitted  fact  that  merely  agreement  for  sale

was  entered  into  by the  appellant  No.3  with

the appellant Nos.1 and 2 in respect of the suit

property, the question of exercising any right

of  pre-emption in the  respondents  could  not

arise at all, as already observed, a suit for pre-

emption  brought  on  the  basis  of  such  an

agreement for sale must be held to be without

any cause of action as there was no right of

pre-emption  in  the  respondents  which  could

be enforced under the law. We should not be

unmindful of the fact that there are no equities

in favour of a pre-emptor, whose sole object is

to disturb a valid transaction by virtue of the

rights  created  in  him  by  statute.  It  is  well

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settled  that  it  would  be  open  to  the  pre-

emptee,  to  defeat  the  law  of  pre-emption  by

any legitimate means, which is  not fraud on

the part of either the vendor or the vendee and

a person is entitled to steer clear of the law of

pre-emption by all lawful means.

12. That apart, it is now well settled that the right

of  pre-emption is  a weak  right  and is  not  looked

upon with favour by courts and therefore the courts

cannot go out of their way to help the pre-emptor.

(See:  Radhakishan  Laxminarayan  Toshniwal

vs.  Shridhar  Ramchandra  Alshi  &  Ors. [AIR

1960 SC 1368].

13.Such being the position, we are, therefore, of the

view  that  the  right  of  pre-emption  was  not

available  to  the  respondents  in  view  of  the

discussions made herein above.

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14.For the reasons aforesaid, this appeal is allowed

and the judgment and decree of the High Court

in the second appeal is set aside and consequent

thereupon  the  suit  of  the  respondents  is

dismissed.   There will be no order as to costs.  

15. We  make  it  clear  that  if  ultimately  the  sale

deed  is  executed,  it  would  be  open  for  the

respondents  to  apply  for  pre-emption  of  the  suit

property,  if  under  the  law  they  are  permitted  to

maintain the suit for pre-emption.

…………………….J.    [Tarun Chatterjee]

New Delhi;    …………………….J. August 19, 2008.     [P.Sathasivam]

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