Kumar Gonsusab & Ors vs Sri Mohammed Miyan & Ors

Kumar Gonsusab & Ors. ...Appellants

VERSUS

Sri Mohammed Miyan Urf Baban & Ors ...Respondents

JUDGMENT

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

2 (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

4 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

5 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

7 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

8 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

9 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 10 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

11 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

13 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

14 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

15 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

16 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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