Second appeal by defendants against a first appellate Court decree upholding plaintiffs' Muslim pre-emption claim over a share sold to defendant No.3. The High Court found evidence of post-sale demand wanting on talab-i-iishhad requirements and restored the Trial Court's dismissal.
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.
1
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22TH DAY OF JULY, 2024
BEFORE
THE HON’BLE MR. JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 190 OF 2007
BETWEEN
1(a). MOHABBAT W/O JAMALUDDIN MULLA
AGE: 65, OCC: HOUSEHOLD
R/O JATRA,
TALUK: HUKERI, DIST: BELGAUM.
AGE: 52 , OCC: HOUSEHOLD, R/O SOLAPUR,
TALUK: HUKERI, DIST: BELGAUM.
AGE: 45, OCC: HOUSEHOLD, R/O SOLAPUR, TALUK: HUKERI, DIST: BELGAUM.
AGE: 42, OCC: HOUSEHOLD, R/O SOLAPUR, TALUK: HUKERI, DIST: BELGAUM.
AGE: 40, OCC: AGRICULTURE, R/O JATRAT, TALUK: HUKERI, DIST: BELGAUM.
2
AGE: 35, OCC: AGRICULTURE,
TALUK: CHIKODI, DIST: BELGAUM.
TALUK: HUKERI, DIST: BELGAUM.
3(A) MAMTAZ SHIKUR SHAIK, AGE: 60, OCC: HOUSEHOLD, R/O : YARANAL ROAD NIPPAN, TALUK: HUKERI, DIST: BELGAUM.
3(B) RASEED HAMID SUTAR AGE: 58, OCC: AGRICULTURE, R/O : SOLAPUR, TALUK: HUKERI, DIST: BELGAUM.
3(D) SHENAJU SHIKANDAR NAIKWADI, AGE: 58, OCC: AGRICULTURE, R/O : SOLAPUR, TALUK: HUKERI, DIST: BELGAUM.
3
AGE: 46, OCC: AGRICULTURE,
R/O : SOLAPUR,
TALUK: HUKERI, DIST: BELGAUM.
…APPELLANTS (BY SRI B.S.KAMATE, ADVOCATE SRI DINESH M. KULKARNI, ADVOCATE FOR R1 (A TO F))
AND
1(A) MUSTAQ BABASAHEB MULLA, AGE: 42 YEARS, OCC: AGRICULTURE, R/O : SOLAPUR, TALUK: HUKERI, DIST: BELGAUM.
AGE: 42 YEARS, OCC: AGRICULTURE, R/O : SOLAPUR, TALUK: HUKERI, DIST: BELGAUM.
AGE: 39 YEARS, OCC: HOUSEHOLD WORK, R/O : TAHASILDAR PLOT, NIPANI, TALUK: NIPANI, DIST: BELAGAVI,
1(C) SHAKEERA YASEEN SANIDI, AGE: 37 YEARS, OCC: HOUSEHOLD WORK, R/O BAMBALAWAD, TALUK: CHIKODI, DIST: BELAGAVI.
1(A) MUSTAQ BABASAHEB MULLA, R/O : SOLAPUR, TALUK: HUKERI, DIST: BELAGAVI.
4
1(E) MEENAJ IRFAN MUJAWAR, AGE: 32 YEARS, OCC: HOUSEHOLD WORK, BACKSIDE HANUMAN TALIM R/O RANDAL, TALUK” HATKANANGALA, DIST: KOLHAPUR,
1(F) RUKKAYYA JAMEED KAMATE AGE: 29 YEARS, OCC: HOUSEHOLD WORK, R/O PATTANKUDI, TQ. CHIKODI, DIST: BELAGAVI.
…RESPONDENTS
(R-1 DECEASED; NOTICE TO R2 SERVED BUT UNREPRESENTED)
THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 13.10.2006 PASSED BY THE FAST TRACK COURT-I (DIST. AND SESSIONS JUDGE) CHIKODI IN R.A.NO.460/2004 AND FURTHER THE JUDGMENT AND DECREE DATED 03.08.2004 PASSED BY THE LEARNED CIVIL JUDGE (SR.DN.) HUKERI IN O.S.NO.38/1998 MAY KINDLY BE CONFIRMED BY ALLOWING THIS RSA WITH COSTS.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 22.06.2024 COMING ON FOR 'PRONOUNCEMENT OF ORDER' THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
5
JUDGMENT
The present second appeal is filed under Section 100 of Code of Civil Procedure, 19081 by the defendants challenging the judgment and decree dated 13.10.2006 passed in RA No.460/2004 by the Fast Tract Court-I (District and Sessions Judge), Chikodi2 and the judgment and decree dated 3.8.2004 passed in OS No.38/1998 by the Civil Judge (Sr.Dn), Hukkeri3 , whereunder the suit for declaration of the preferential right and execution of the Sale Deed has been dismissed by the Trial Court and decreed by the first appellate Court.
1 Hereinafter referred to as ‘CPC’
2 Hereinafter referred to as the ‘first appellate Court’
3 Hereinafter referred to as the ‘Trial Court’
4 Hereinafter referred to as ‘Fakruddin’
6
and Shileman and after their death, the plaintiffs and defendant Nos.1 and 2 were in actual possession and enjoyment of the suit properties jointly. That as the father of the plaintiffs namely, Fakruddin became old and was unable to manage the suit properties, the names of the plaintiffs were entered in the revenue records of the suit properties. As also, the names of defendant Nos.1 and 2 have been entered in the revenue records of the suit properties. That though their names have been entered in the records of rights separately, there was no partition of the suit properties between the plaintiffs and defendant Nos.1 and 2.
5 Hereinafter referred to as ‘Shileman’
7
their willingness to purchase their share. At that time, defendant Nos.1 and 2 informed the plaintiffs that they will intimate the plaintiffs when they sell their share in the suit properties. That the plaintiffs got issued a legal notice dated 27.12.1997 to defendant Nos.1 and 2 claiming their preferential rights and the same was served on defendant Nos.1 and 2 on 30.12.1997. That defendant Nos.1 and 2 have not replied to the same. However, behind the back of the plaintiffs, defendant Nos.1 and 2 in collusion with one another and without any intimation to the plaintiff executed Sale Deed dated 23.2.1998 in favour of defendant No.3 conveying their share in the suit properties for a total sale consideration of ₹68,000/-. That defendant No.3 has no right to purchase the share of defendant Nos.1 and 2 and therefore, the Sale Deed executed in favour of defendant No.3 is void ab initio and not binding on the rights of the plaintiffs. That the plaintiffs are ready to purchase the share of defendant Nos.1 and 2 at the prevailing market rate of ₹68,000/-. That defendant No.3 has filed an application before the revenue authorities to enter his name in the revenue records of the suit properties to the extent of the share of defendant Nos.1 and 2. Hence, the plaintiffs have filed the suit.
8
suit through a counsel and defendant No.3 entered appearance in the suit through another counsel. In the written statement filed by defendant Nos.1 and 2, the case of the plaintiffs has been denied. They further contend that the partition has been effected of the family properties between the father of the plaintiffs and father of defendant Nos.1 and 2 after the death of Modin Mulla and after the death of Shileman, defendant Nos.1 and 2 have inherited the suit properties and they are in separate possession and enjoyment of their share to the exclusion of the plaintiffs. It is contended that the plaintiffs have expressed their intention not to purchase the share of defendant Nos.1 and 2 when they approached the plaintiffs along with the others after issuance of the notice. As such, defendant Nos.1 and 2 sold the suit properties in favour of defendant No.3.
denying the case of the plaintiffs and supported the case putforth by defendant Nos.1 and 2. It is further contended by defendant No.3 that he is a bonafide purchase for value vide registered Sale Deed dated 23.2.1998. Hence, he seeks for dismissal of the suit.
9
8. The Trial Court, consequent to the pleadings of the
parties, framed the following issues and additional issues:
1. Whether the plaintiffs proves that themselves and defendant no.1 and 2 are the owners of the suit properties and they were in joint possession of the same on the date of suit?
2. Whether the plaintiffs proves that they have got preferential rights to purchase the share of defendants 1 and 2?
3. Whether the plaintiffs proves the cause of action to file the suit?
4. Whether the defendant no.3 proves that there was partition between Suleman and Faqruddin sons of Modin Mulla in the suit properties after the death of Modin Mulla?
5. Whether the deft no.3 proves that he is a bonafida purchaser of the share of the defendant no.1 and 2 for valuable consideration of Rs.68,000/- through registered sale deed dated 23/2/1998?
6. Whether the defendant no.3 is entitled for the compensatory costs of Rs.5,000/- from the plaintiffs.
7. Whether the plaintiffs are entitled for the reliefs as prayed for?
8. What order or decree?
Addl. Issues:-
1.Whether the D-1 and 2 proves that they have sold that shares in the suit property for Rs.68,000/- in favour of deft no.3 through registered sale deed dated 23/2/98 for their family necessity and delivered possession of the same to the deft no.3?
10
witnesses have been examined as PWs.2 and 3. Exs.P1 to P13 have been marked in evidence. Defendant No.1 examined himself as DW.1. The GPA holder of defendant No.3 has been examined as DW.3. Two witnesses have been examined as DWs.2 and 4. Exs.D1 to D54 have been marked in evidence. The Trial Court by its judgment and decree dated 3.8.2004 dismissed the suit.
dated 13.10.2006 allowed the appeal and passed the following order:
11
“ In the result the appeal is allowed. The Judgment and Decree of the lower court is hereby set aside. The suit of the plaintiffs in O.S.No.38/98 on the file of civil judge (Sr.Dn.), Hukkeri is hereby decreed as prayed for with cost through out. The respondents are directed to execute the sale-deed within 90 days from the date of this order failing which the plaintiff is at liberty to get the sale-deed executed through the process of court.
following substantial question of law:
“ Whether the plaintiffs have complied with the provisions of Section 236 of Mohammadan Law for obtaining the relief fared on pre-emption.”
the first appellate Court, after taking this Court through the provisions of Sections (Clause/Note) 226, 231, 232 and 236 of the Mulla’s Mahomedan Law contends that there is no compliance of Section (Clause/Note) of 236 of the Mohammadan Law. He further contends that the Trial Court had properly appreciated the oral and documentary evidence on record and dismissed the suit and that the first appellate Court has erroneously set aside the
12
same and decreed the suit. Hence, he seeks for allowing of the above appeal and setting aside of the judgment of the first appellate Court and affirming the judgment of the Trial Court.
13
having inherited the same upon the death of Fakruddin and Shileman are undisputed.
“i) The plaint is silent in respect of the willingness of plaintiff Nos.1 and 2 in respect of expressing their intention to purchase the suit property after having received information of the sale. So also they have not affirmed their intention in the presence of buyer or seller or on the premises which is the subject matter of the sale and in the presence of two witnesses. Section (Clause/Note) 232 of Mulla’s Mahomedan Law contemplates that
14
sale alone gives rise pre-emption. When the provision is clear, issuance of notice by the plaintiff Nos.1 and 2 to defendant Nos.1 and 2 itself is premature. Hence, none of the ingredients of Section (Clause/Note) 236 of Mulla’s Mahomedan law are complied with;
ii) More over the plaintiffs never expressed their willingness or affirmed their intention referring expressly to the fact that they are ready to purchase the suit property in the presence of two witnesses;
iii) Under the circumstances, the plaint is lacking in respect of the ingredients of Section (Clause/Note) 236 of Mulla’s Mahomedan Law. When such being the fact, claim by the plaintiffs is not sustainable as they have not complied with the mandatory provisions of Clause/Note 236 Mulla’s Mahomedan Law.”
findings:
i) The main defence of defendant Nos.1 and 2 is that the waiver of the right of the plaintiffs and also the plaintiffs have no preferential right to the property;
15
ii) As could be seen from the pleadings of the parties, they have admitted that they are co– owners of the suit survey number;
iii) There is no dispute with regard to possession of the property as also the extent the parties are entitled to in the survey number;
iv) The revenue records disclose that the extent of lands held by the plaintiffs and defendant Nos.1 and 2;
v) If we carefully apply Section (Clause/Note) 231 Mulla’s Mahomedan Law, considering that there was a partition, then condition No.3 is fulfilled. If the parties were to consider that there was no partition and they are co-sharers, then condition No.1 is applicable.
vi) The right of pre-emption ripens only after the sale of the property. Section (Clause/Note) 232 Mulla’s Mahomedan Law deals with this aspect. The right of pre-emption arises only out of valid, complete and bonafide sale. Here, there is valid, complete and bonafide sale of the property by defendant Nos.1 and 2 to defendant No.3. Therefore, the plaintiffs will get clear right of preemption against the defendants;
vii) In this case, the plaintiffs have expressed their willingness to purchase the property under registered notice dated 27.12.1997. The
16
defendant Nos.1 and 2 sold the property to defendant No.3 by registered Sale Deed dated 23.8.1998. Therefore, when the plaintiffs came to know about the sale of the property, immediately they expressed their intention to purchase the property. Therefore, there is a demand made by the parties immediately at the time of sale;
viii) According to Section (Clause/Note) 236 Mulla’s Mahomedan Law, the demand must be made after the sale is completed. PW.1 has stated that after coming to know the execution of the Sale Deed they have approached defendant Nos.1 and 2 and asked them why they have not sold the suit lands in our favour, but defendant Nos.1 and 2 told that they are not going to sell the suit property to the plaintiffs. This part of evidence of PW.1 clearly goes to show that after execution of the Sale Deed they have made a demand of sale to defendant Nos.1 and 2 and they have completed the formal requirement of kalad-i-mowasibat;
ix) Further, it is not denied in the crossexamination of PW.1 that they have not demanded for execution of the Sale Deed after it was registered in favour of defendant No.3;
x) The panchas told about the sale of suit land by defendant Nos.1 and 2 and after coming to know of the sale, they approached defendant Nos.1 and 2. This clearly shows that after the sale of the
17
property, the plaintiffs have demanded for sale of the property and exercised their right under law;
xi) The defendants have not stated that after execution of the Sale Deed, they have approached the plaintiff requesting him to purchase the property;
xii) There can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and of facts enabling him to take effective action for enforcement of such rights;
xiii) In this case, the plaintiffs have demanded their right in the legal notice and the defendants have pleaded that the plaintiffs have waived their right orally. If really the plaintiffs have waived their right as contended by defendant Nos.1 and 2, then why the plaintiffs have filed the suit. Therefore, the defendants have not established the waiver as required under law;
xiv) The plaintiffs had expressed their intention of purchasing the property for market value and in spite of it, defendant No.3 had purchased the property from defendant Nos.1 and 2 by depriving the right of the plaintiffs. Therefore, defendant No.3 cannot be called as a bona fide purchaser for value without notice and he cannot be protected under the above principle;
18
226. Pre-emption.- The right of shufaa or preemption is a right which the owner of an immovable property possesses to acquire by purchase another immovable property which had been sold to another person.
231 . Who may claim pre-emption.- The following three classes of persons and no others, are entitled to claim pre-emption, namely:-
The first class excludes the second, and the second excludes the third. But when there are two or more pre-emptors belonging to the same class,
19
they are entitled to equal share of the property in respect of which the right is claimed (Baillie, 500).
Exception- The right of pre-emption on the third ground, viz., that of vicinage does not extend to estates of large magnitude, such as villages and zamindaris, but is confined to houses, gardens, and small parcels of land(d). The right, however, may be claimed by a co-sharer(e).
iii. Clause/Note 232 reads as follows:
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), sadaqah (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). …..”
iv. Clause/Note 236 reads as follows:
236. Demands for pre-emption - No person is entitled to the right of pre-emption unless-
(1) He has declared his intention to assert the right immediately on receiving information of the sale. This formality is called talab-i-mowasibat (literally, demand of jumping, that is, immediate demand): and unless
(2) he has with the least practicable delay affirmed the intention, referring expressly to the fact that the talab-i-mowasibat had already been made(a), and has made a formal demand-
20
Explanation I The talab-i-mowasibat should be made after the sale is completed. It is of no effect if it is made before the completion of the sale (s.232).
Explanation II- It is not necessary that the talab-imowasibat or talab-i-ishhad should be made by the preemptor in person. It is sufficient if it is made by a manager or a person previously authorized by the preemptor to make the demand(e). When the pre-emptor is a minor, his de facto guardian may make a demand on his behalf(f). A demand made by the father or brother of the pre-emptor is not sufficient, even if he has a right to pre-empt, unless he has been previously authorized to make the demand(g). When the preemptor is at a distance, the demand may be made by means of a letter(h).
Explanation III- If the talab-i-ishhad is made in the presence of the buyer, it is not necessary that the buyer should then be actually in possession of the property in respect of which pre-emption is claimed(i).
Explanation IV- When two or more persons claim to pre-empt, each one of them should make the demands, unless one of them has also been authorized by the other to do so, and he makes the demands on their behalf also. If a suit is brought by several persons claiming to pre-empt, and only one of them has made the demand on his own behalf the suit will proceed as regards him, but it must be dismissed as to the rest(j).
Where there are two or more buyers, and the talabi-ishhad is not made in the presence of the vendor or on the property sought to be pre-empted, the demand mush be made to all the buyers(k), It is made only to some of them, the shares of those buyers only can be pre-empted(l). (s.244)
Explanation V.-No particular formula is necessary either for the performance of talab-i-mowasibat or talab-i-ishhad so long as the claim is unequivocally asserted.”
21
22
willingness to purchase the property and hence, the ingredients of Clause/Note 236 Mulla’s Mahomedan Law have not been complied with dismissed the suit. In this context, as pointed by the learned counsel for the respondents, it is relevant to note that at para 8 of the plaint the plaintiffs have averred as follows:
“ *ಖ�ೕ� ಆದ �ಷಯ ��ಯ�� ��ದು ��ಉ� ಪ���ಉ�� �ೕ� ಆ� ನಮ� �ೕಡು��ೕ� ಅಂ� �� ಈಗ ಪ��� ನಂ.3 ಈತ&� ಏ( ಖ�ೕ� ಕ�ರು�� ಅಂ� �,�ಸ.� ಪ��� ನಂ.1 ಮತು� 2 ಅವರು 23 ನಮ4 ಮನ � ಬಂದಂ� ವ�6ಸು��ೕ� &7ೕನು 8ಡು��ೕ� 2ನು &ಮ� ಸದ� ಜ:ೕನ ಖ�ೕ� �ಡು3�ಲ<.”
23
on 27.12.1997, after coming to know of the sale made on 23.02.1998 by defendant Nos.1 and 2, the plaintiffs have once again approached defendant Nos.1 and 2 to purchase the property sold by them. However, it is relevant to note that in the testimony of PW.1, it is not specifically stated as to when the plaintiffs have approached defendant Nos.1 and 2 after the said Sale Deed dated 23.02.1998 and it is also not specifically stated that the panchas i.e., PWs.2 and 3 had also accompanied the plaintiffs.
24
24. Therefore, now only two grounds remain. Therefore, in that context it was necessary for the plaintiffs to have pleaded specifically what is the nature of pre-emptive right which they have and they are enforcing in the suit. That apart, Section 236 as set out above, prescribes what are the conditions precedent which are to be satisfied before the claim for preemption would be up held by the Courts. The conditions are: firstly, the person claiming pre-emption right has to declare his intention to assert the right immediately on receiving the information of the same. That is formally called talab-i-mowasibat, Secondly, with the
6 ILR 2012 KAR 1192
25
least practicable delay affirmed intention and making formal demand either in the presence of buyer or seller or on the premises which are the subject of sale, in the presence of atleast two witnesses. The second formality is called as talab-i-ishhad (demand for invocation of witness). It is only thereafter he can resort to third step of filing a suit for enforcement of pre-emptive right, if the earlier two demands are not complied with.
26. Therefore it is clear that when a Muslim wants to enforce the pre-emptive right that is conferred on him by the custom, the requirement prescribed under the custom is to be strictly followed. The essence of this pre-emptive right is firstly he must express his intention to purchase the property immediately on receiving the information of the sale. Then he has to follow such communication by making a demand to the purchaser or seller in the presence of two witnesses. It is only if such a demand is not complied with, a cause of action arises for him to file a suit within a period of one year from the date of sale enforce the right of preemption. This is the requirement prescribed in the custom. Therefore when the customary right is sought to be enforced in a Court of law, all the prescriptions of the custom have to be meticulously followed.
(emphasis supplied)
has stated that plaintiff has enquired with defendant Nos.1 and 2 after the sale is made, he has not stated that PWs.2 and 3 have also accompanied the plaintiff. PW.2 has not stated that he has
26
accompanied the plaintiffs to meet the defendants after the sale. In fact in the cross examination, he has specifically stated that he has not accompanied the plaintiffs to meet the defendants after the sale. PW.3 has specifically stated regarding accompanying the plaintiffs and along with PW.2 to meet defendant Nos.1 and 2 after the sale.
ORDER
i) The above appeal is allowed. ii) The judgment and decree dated 13.10.2006 passed in R.A.No.460/2004 by the Fast Track Court – I (District and Sessions Judge), Chikodi is set aside.
27
iii) The judgment and decree dated 03.08.2004 passed in O.S. No.38/1998 by the Civil Judge (Sr.Dn.), Hukkeri is affirmed.
Sd/JUDGE
nd /- / BS
1 issue framed by the court
Whether the plaintiffs complied with Clause/Note 236 of Mulla's Mahomedan Law (talab-i-mowasibat and talab-i-ishhad) in asserting their pre-emption right.
Colour shows how this judgement treated each authority
Maheboob Buransab Maniyar and Others Vs. Mohadinsab Maheboosab Maniyar and OthersRelied on¶29
ILR 2012 KAR 1192 · Who else cites this
1 provisions across 1 enactments
Jamaluddin Shileman Mulla (deceased) by LRs
Gajabarsab Shileman Mulla
Hamid Modin Sutar (deceased) by LRs
Babasaheb Fakruddin Mulla (deceased) by LRs
Nazruddin Fakruddin Mulla
C.M. Poonacha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
