In a second appeal concerning pre-emption, the court held that the right of pre-emption for co-sharers is valid and constitutional under Article 19(5), and that such a right can be exercised only after a complete sale with title passing under the Transfer of Property Act.
Second appeal dismissed with costs throughout.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
AFR Reserved on 10.07.2019 Delivered on 06.01.2020
Court No. - 34
Case :- SECOND APPEAL No. - 1798 of 1978
Appellant :- Mohd. Alim And Others Respondent :- Tahir Husain Counsel for Appellant :- R. Asthana,Gulrez Khan,H.S. Ahmad,Haji Iqbal Ahmad,Javed Husain Khan,Ramendra Asthana,W.H.Khan Counsel for Respondent :- R.K. Jain,R.G. Prasad
Hon'ble Sudhir Agarwal,J.
“A. Whether right of pre-emption is barred by the Constitution of India as it imposes an unreasonable restriction to hold the property?
D. Whether plaintiff was entitled to pre-emption even when he did not perform the necessary Talabs according to law.”
(emphasis added)
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(hereinafter referred to as “plaintiff”) against Mohammad Alim and Mohammad Arif, sons of Zinda Hasan, impleaded as defendants 1 and 2 and Mst. Naimat (Niyamat) Ilahi, widow of Sheikh Habib Ahmad, (defendant 3), in the Court of Civil Judge (Senior Division), Saharanpur.
“One Daribast Arazi Tal untilled in the east direction, and in the west direction, towards the north side, a balcony of Shakasti is built in the remaining part of the property, and some other constructions are also there. Remaining part of the land is untilled, and is situated in Mohalla Mala Gate, Saharanpur as defined below.
East: Public Drainage and public road.
West: Haweligada. Boarding House
South: Deewan of the Haweligada Boarding House
North: Wall of the house Jagan Nath Panjabi, and in the middle joint in north-south direction. And wall of the related Mahal Khana, and shop in the ownership of Abrar Ahmad, and heirs of Late Abdul Hakeem.
North: Public drainange and road.”
3
Tauheed Hasan and Mohd. Mobeen, (his sons); Mrs. Tahira Begum, Raeesa Begum, Mansoor Fatima and Shahida and Nadira (his daughters); and widow Khushnuma Begum as heirs.
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Mohammadan Law is applicable to them. Plaintiff has been a cosharer in the property mentioned even before sale deed dated 24.09.1971 was executed between defendant 3 and defendants-1 and 2. Defendants -1 and 2 had no share or right in suit property before said sale deed. Hence, plaintiff, in preference to defendants-1 and 2, has got a right to purchase, on the basis of pre-emption, as provided in Shariyat. Defendants- 1 and 2, in spite of knowledge of right of preemption, bought part of suit property for consideration of Rs.8,500/-, hence the suit. Cause of action arose when sale deed dated 24.09.1971 was executed and on 27.10.1971 when plaintiff got knowledge of sale deed for the first time.
B . The expenses of the case be awarded to the plaintiff from the defendants no-1 and 2.
(English Translation by Court)
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written statement dated 02.8.1972. Contents of paras 1 to 4 of plaint were admitted. Contents of para 5 were admitted to the extent of death of Shabeer Ahmad and rest was denied. Contents of para 7 of plaint to the extent property is situated in Saharanpur city, adjacent to the house of Ram Leela was admitted. In para 8 of plaint, tenancy of Zinda Hasan was admitted. In paras 10 and 11 of plaint, purchase of 1/5th portion of suit property by defendant Mujeeb from defendant Niyamat Ilahi for consideration of Rs.8,500/- was admitted. Rest part of plaint is not admitted. In additional pleas, defendants pleaded that :
(i) Plaintiff is not entitled for any relief as no cause of action has arisen and suit is liable to be dismissed with costs.
(ii) Plaintiff’s contention that he had no knowledge and information about sale of 1/5th share of suit property to defendants Mujeeb was incorrect.
(iii) Defendant 3 desired to sell her 1/5th share in suit property since long and made various efforts which ultimately settled with defendant Mujeeb.
(iv) One of the broker Munshi Abrar Husain engaged by defendant-3 had also enquired from plaintiff about purchase of 1/5th share of defendant 3 but he did not care to purchase the same for consideration of Rs.8,000/-.
(v) Ms. Tahra Begum, real sister of plaintiff married to Ahmad, real brother of Mujeeb and plaintiff used to visit defendant’s house time to time.
(vi) Defendant Mujeeb himself disclosed to plaintiff that he is going to buy 1/5th share of suit property from Smt. Niyamat Ilahi for consideration of Rs.8,500/- and plaintiff told him that it was offered to him for Rs.8,000/- but he was not inclined to purchase the said share as it was fetching meagre rent.
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(vii) 1/5th share of Smt. Niyamat Ilahi has been purchased by Mujeeb after refusal by plaintiff. Hence has has no right to file suit allegedly exercising his right of pre-emption.
(viii) Suit is barred by estoppel and acquiescence.
(ix) Date of knowledge disclosed by plaintiff is false as he had prior knowledge of transaction.
(x) Conditions precedent for exercising right of pre-emption are not fulfilled and claim set up by plaintiff is based on no factual foundation.
(xi) The suit property was under tenancy of father of defendants 1 and 2 for the last 35 years. Plaintiff’s claim that he asked Zinda Hasan in the year 1971 to vacate suit property is false and it is also incorrect that sale deed was executed under the apprehension of eviction.
(xii) Suit property is not situated in any locality of special significance. It is incorrect that defendant Mujeeb or his father had close relationship with Smt. Niyamat Ilahi.
^^10 v- ;g fd nkSjku vihy ekSj[kk 30-4-77 bZ0 dks Jh jbZlk csxe ;ds vt~ 'kjhd lghe o fgLlsnkj us viuk dqy gd o fgLlk flgkt vt 260 flgk; izfroknhx.k ds gd esa ctfj;s fgcsukek ekSj[kk 23-4-1977 eq0 jftLV~h 'kqnk fgCcs djds eqRrfdy dj fn;k ftldks izfroknhx.k us dcwy o eatwj fd;k vkSj og crkSj 'kjhd o fgLlsnkj dkfct gks x;kA
10 c- ;g fd et+dqjk okyk dkj.k ls Hkh nkok 'kqQk oknh dkfcys i'kjQ~r ugha gSA**
10a. That on 30.4.77 during pendency of the appeal, the shareholder Smt. Raeesa Begum transferred her total rights and share of 260 units in favour of the defendants by way of a registered gift deed dated 23.4.77, which the defendants accepted and came in possession over the same as shareholder.
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10b. That for the aforesaid reason as well, the suit of the plaintiff for pre-emption does not deserve to be proceeded with.
(English Translation by Court)
2. Whether the plaintiff performed necessary demands as alleged?
3. Whether the plaintiff had the knowledge of the impugned sale deed? If so, whether the suit is barred by estoppel?
4. To what relief, if any, is the plaintiff entitled?”
“The suit for pre-emption in respect of one-fifth share of the defendant No.3 in the property detailed at the foot of the plaint is decreed. The defendants 1 and 2 are directed to execute the sale deed in favour of the plaintiff after receiving Rs.8500/from the plaintiff within three months failing which the plaintiff will have a right to get the sale deed executed through court at the expenses of the defendants. The parties shall bear their own costs of the suit.”
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Sheikh Habib Ahmad had died on 20.9.1976 and she was impleaded as defendant 1 in appeal, therefore against her name, 'deceased' be written and Haji Amir Hasan, Shamshad Hasan, Jamil Ahmad and Smt. Fazal Ilahi, legal heirs be impleaded as defendant/respondents 1/1 to 1/4. However, said amendment was rejected vide order dated 16.7.1977 passed by Sri Vikram Singh, District Judge, Saharanpur.
G. Whether the lower appellate court erred in law in importing his personal knowledge by observing that plaintiff
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committed a mistake in his statement that he came to know of the impugned sale deed dated 24.09.1971 on 27.09.1971 while he meant 27.10.1971 as the date on which he acquired knowledge of the said sale deed. In recording this finding lower appellate Judge imported his personal knowledge by observing that it was his mistake in recording the statement of plaintiff when he was presiding officer of trial court. No application for correction of statement was made by plaintiff at any stage that his statement was wrongly recorded.
(H) Whether first appeal abated as a whole when the plaintiff failed to substitute legal representatives of defendant no.3 Smt. Niamat Ilahi and Lower Court erred in taking the contrary view.”
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arising in this appeal nor need be allowed to be raised at this stage. Suffice it to state that two questions, already formulated by this Court while admitting appeal, only need be decided. Hence application requesting to allow additional substantial question of law is hereby rejected.
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Constitution, which confered fundamental right to acquire, hold and dispose of property. The aforesaid right of property has now been ceased to be a fundamental right by virtue of 42nd amendment of Constitution and has become a constitutional right under Article 300A, which is drafted in a different language. Therefore, law as it was earlier need be examined afresh in the cases arising after amendment of Article 19(1)(f).
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exercised only when sale is complete and not before thereto. When a plea is raised by defendant that right of pre-emption has been waived, onus lie upon defendant to prove it.
2 issues framed by the court
Whether right of pre-emption is barred by the Constitution of India as it imposes an unreasonable restriction to hold the property?
Whether plaintiff was entitled to pre-emption even when he did not perform the necessary Talabs according to law.
Colour shows how this judgement treated each authority
Bhanu Ram vs. B. Baijnath Singh AIR 1961 SC 1327Referred¶22
Sant Ram vs. Labh Singh AIR 1965 SC 314Referred¶22
A. Razzaque Sajansaheb Bagwan vs. Ibrahim Haji Mohd. Hussain AIR 1999 SC 2043Referred¶22
Bishan Singh vs. Khazan Singh AIR 1958 SC 838Referred¶24
Irishna vs. State of Haryana AIR 1994 SC 2536Referred¶28
Begum vs. Muhammad Yakub (1894) IL 16 All 344Referred¶31
Zamani Begum vs. Khan Muhammad (1924) 46 All. 142Referred¶31
Radhakisan Laxminarayan vs. Shridhar AIR 1960 SC 1368Referred¶32
Ram Saran Lall Vs. Mst. Domini Kuer AIR 1961 SC 1747Referred¶32
S.K.Mohd. Rafiq vs. Khalilul Rehman AIR 1972 SC 2162Referred¶32
Kumar Gonsusab vs. Sri Mohammed Miyan JT 2008 (9) SC 334Referred¶33
Mohd. Alim And Others
Tahir Husain
Sudhir Agarwal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
