Nannibu and Others vs Gudusab and Others

S.N. Satyanarayana, J.—The defendants in O.S. No. 42/2000 on the file of Addl. Civil Judge (Sr.Dn.), Gadag, have come up in this second appeal impugning the divergent finding rendered in the judgment and decree dated 3.3.2004 passed in R.A. No. 25/2003 on the file of District and Sessions Judge, Gadag, wherein the dismissal of plaintiffs suit for preemption in O.S. No. 42/2000 which was dismissed by the judgment and decree dated 22.9.2003 is set aside and the suit of the plaintiffs is decreed.

The brief facts leading to this second appeal are that the plaintiff in the original suit Sri Gudusab S/o. Imamhusensab Nadeghar is first cousin of 1st defendant Khajasab S/o. Dawoodsab Nadeghar. According to the plaintiff his father Imamhusensab is brother of 1st defendant''s father Dawoodsab and that the property bearing CTS No. 4764 situated in Hulageriban of Laxmeshwar was jointly belonging to the father of plaintiff and as well as father of 1st defendant. It is stated that on 26.8.1996 there was a partition between the plaintiff''s father and 1st defendant''s father in dividing the property bearing CTS No. 4764 wherein an extent of 120'' east-west and 70'' north-south was allotted to the share of plaintiff''s father and an equal share was allotted to the share of defendant''s father.

According to the plaintiff, the share which had come to his father was assigned CTS No. 4764/3 and the share which is allotted to the father of 1st defendant was assigned CTS No. 4764/4. Subsequent to death of plaintiff''s father and 1st defendant''s father, the said properties have respectively come to the share of plaintiff and defendant. The case of the plaintiff is that in the deed of partition dated 26.8.1996 there was a clause with reference to right of pre-emption provided to both the parties for partition i.e., in the event of any one of them trying to sell their share in the property before offering the same to an outsider, the first option of purchase should be given to the other member.

It is the case of the plaintiff that in the year 1998 he came to know about the intention of defendant trying to sell the suit property in favour of 3rd parties which was allotted to the share of the 1st defendant''s father subsequently which has come to the 1st defendant and it has been in use and occupation of defendants 1 to 6. Hence he approached the 1st defendant and offered to purchase the suit property by exercising his right of pre-emption. According to the plaintiff, when the defendant did not heed to his request, he approached the Civil Court by filing a suit in O.S. No. 73/1998 seeking the relief of permanent injunction restraining the 1st defendant to sell the suit property in favour of the third parties contrary to his right of pre-emption in deed of partition dated 26.8.1996.

It is further stated that during the pendency of the said suit on 25.11.1999 the 1st defendant along with defendants 2 to 4 sold the suit property in favour of respondents 5 to 7 under registered sale deed dated 25.11.1999 and delivered possession of the suit property in favour of defendants 5 to 7. Hence the plaintiff herein filed the present suit in O.S. No. 42/2000 for the relief of pre-emption over the suit property and also for mandatory injunction in directing defendants 1 to 4 collectively to convey the suit schedule property in his favour.

It is seen that during the pendency of the present suit, the suit in O.S. No. 73/1998 which was filed by the plaintiff for the relief of permanent injunction came to be decreed by judgment and decree dated 1.6.2001 which was not challenged by the defendants in the said suit.

In the present suit on behalf of defendants 1 to 4 the 1st defendant filed his written statement and on behalf of defendants 5 to 7 the 6th defendant filed the written statement. The defence of defendants 1 to 7 which was filed through defendants 1 and 6 being one and the same it is stated that before the sale deed of suit schedule property was executed by defendants 1 to 4 in favour of defendants 5 to 7, they approached the plaintiff and requested him and also indicated the price for which the defendants 5 to 7 have agreed to purchase the suit property and it is stated that the plaintiff did not respond to that and it is also stated that he had no objection for sale of the suit property in favour of defendants 5 to 7 and as such the sale deed dated 25.11.1999 came into existence.

On the basis of the pleadings of the parties, the following issues were framed by the trial Court for its consideration.

ISSUES

"(i) Whether the plaintiff proves that the defendants 1 to 4 have sold the suit property behind his back and as such liable to be cancelled?

(ii) Whether the plaintiff is entitled for the relief?

(iii) Whether the defendants prove that before sale of suit property, plaintiff had expressed his inability to purchase and then gave oral consent for the sale and as such sale deed executed by the defendants 1 to 4 in favour of defendants 5 to 7 is valid?

(iv) What order/decree?

Thereafter the matter went into trial. On behalf of plaintiff, he himself got examined as PW.1, relied upon three documents which are at Exs. P.1 to 3 which are the certified copy of the sale deed dated 25.11.1999, the CTS extract of the property No. 4764/4 which is the suit schedule property and CTS extract of property No. 4764/3 which belongs to him exclusively. In the said proceedings on behalf of the defendants the 1st defendant got examined himself as DW.1 and 6th defendant was examined as DW.2. The 3rd defendant was examined DW.3. In addition to that two independent witnesses who are residents of Laxmeshwar and the members of Jamat were examined as DWs. 4 and 5 to demonstrate that in their presence the defendants 1 to 4 went and requested the plaintiff either to buy the property or to give his consent for sale of suit schedule property by defendants 1 to 4 in favour of defendants 5 to 7.

The trial Court on appreciation of the oral and documentary evidence available on record proceeded to answer issues 1 to 3 in the negative and consequently dismissed the suit of the plaintiff for the relief of right of pre-emption. Being aggrieved by the same, the plaintiff preferred R.A. No. 25/2003 on the file of District and Sessions Court, Gadag, wherein the lower appellate Court on re-appreciation of pleadings and evidence proceeded to frame the following points for its consideration.

POINTS

"(i) Whether the plaintiff has shown that the defendants 1 to 4 have sold the suit property behind his back?

(ii) Whether the defendants have shown that the plaintiff had expressed his inability to purchase the suit property before selling the same to defendants 5 to 7?

(iii) Whether the judgment and decree of the trial Court need interference?

(iv) What order?"

After hearing the counsel for the appellant and respondents in the said proceedings, the lower appellate Court answered the 1st point for consideration regarding whether the defendants 1 to 4 have sold the suit schedule property behind the back of the plaintiff in the affirmative and 2nd point regarding whether defendants have shown inability of plaintiff to purchase suit property before selling the same to defendants 5 to 7 in the negative and consequently the 3rd point which was framed to consider whether the judgment and decree of the trial Court requires interference, in the affirmative. Thereafter by allowing the appeal set aside the judgment and decree in dismissing the suit of the plaintiff, consequently the suit of the plaintiffs was decreed.

Being aggrieved by the divergent finding rendered by the lower appellate Court, the present second appeal is preferred by the defendants 2 to 7 for the reason that the 1st defendant died during the pendency of R.A. No. 25/2003. In this appeal after hearing the learned counsel for the parties, this Court admitted this appeal to consider the following:

SUBSTANTIAL QUESTIONS OF LAW

"(i) Whether the plaintiff has established his right in raising a plea of pre-emption over the suit schedule property in the light of the finding in O.S. No. 73/1998?

(ii) Whether the order of the trial Court is perverse in the given circumstances?"

Heard the learned counsel Sri G.N. Narasammanavar for the appellant and learned counsel Sri S.S. Yadrami for respondent plaintiff in the original suit and Sri S.S. Koliwad for respondents 1(a) to (e) and (g) to (j). Perused the judgment of both the Courts below with reference to pleadings and evidence available on record.

The undisputed facts in this proceedings are that the original 1st defendant and plaintiff in the Courts below are 1st cousins i.e., their respective fathers being own brothers were joint owners of CTS No. 4764 as it stood prior to 1996. In the year 1996 there was a partition between the father of plaintiff and father of 1st defendant which has resulted in a memorandum of partition being recorded between them on 26.8.1996. Under the said document the original property bearing CTS No. 4764 was divided into two equal parts and an extent of 120'' x 70'' was allotted to each of the brothers. The property which was allotted to the share of plaintiff''s father was assigned CTS No. 4764/3. The portion which was given to the father of 1st defendant was assigned CTS No. 4764/4.

It is further not in dispute that in the memorandum of partition there was a right of pre-emption provided to both the parties reserving them right to purchase the share of another if any of them decide to sell the property which was allotted to their share under the said memorandum of partition. It is this right the plaintiff herein is trying to enforce by filing the present suit. Earlier to filing of this suit, it is seen that he has filed O.S. No. 73/1998 for the relief of permanent injunction seeking direction to restrain the 1st defendant from selling the suit property in favour of 3rd parties, in the event he decide to sell the suit property. It is seen that even before the said suit came to be decided by judgment and decree dated 1.6.2001, there was a transaction of sale of suit property by 1st defendant along with defendants 2 to 4 in favour of defendants 5 to 7 on 25.11.1999. Hence the suit in O.S. No. 42/2000 is filed by the plaintiff/respondent herein on 20.3.2000 to enforce his right of pre-emption.

It is seen that the aforesaid suit was contested by the defendants by filing written statement contending that in fact the defendants 1 to 4 had taken all the precaution to inform the plaintiff regarding their intention of selling the suit property and giving the 1st right of option in his favour which according to them he did not utilize and thereafter sold the suit property in favour of defendants 5 to 7. The defendants 5 to 7 being on record, filed written statement on the same lines. In this suit what is required to be seen is whether the procedure that was required to be followed for the right of pre-emption under section 236 of Mohammedan Law was strictly adhered to by the parties before filing the suit. It is to be seen in the instant case whether the person who is trying to enforce his right of ''shufaa'' the Arabic word synonym to right of pre-emption in Mohammedan Law has meticulously followed the procedure that he was required to follow as contemplated under Section 236 of Mohammedan Law. The relevant section along with explanation reads as under:

"236. Demands for pre-emption.--No person is entitled to the right of preemption 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-

(a) either in the presence of the buyer, or the seller, or on the premises which are the subject of sale (b), and

(b) in the presence at least of two witnesses (c). This formality is called talab-i-ishhad (demand with invocation of witnesses) (d).

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-i-mowasibat or talab-i-ishhad should be made by the pre-emptor in person. It is sufficient if it made by a manager or a person previously authorized by the pre-emptor 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 pre-emptor 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 preemption 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 talab-i-ishhad is not made in the presence of the vendor or on the property sought to be preempted, the demand must be made to all the buyers (k). If it is made only to some of them, the shares of those buyers only can be pre-empted (1) (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 (m)."

The reading of the aforesaid provision would clearly indicate that there are two stages where the plaintiff will have to press into service his right of pre-emption which according to the Apex Court is a weak right as observed in the judgment rendered in the matter of Radhakisan Laxminarayan Toshniwal Vs. Shridhar Ramchandra Alshi and Others, AIR 1960 SC 1368 : (1961) 1 SCR 248 , wherein it is held that ''it is now well settled that the right of pre-emption is a weak right and is not looked upon with favour by the Courts and therefore the Courts cannot go out of their way to help the pre-emptor''.

In the light of this judgment what is required to be looked into is strict adherence to the procedure incorporated in Section 236 by the preemptor. The procedure that is required to be followed is in two stages. One is defined as talab-i-mowasibat which means the person exercising pre-emption right has to declare his intention to assert his right of pre-emption immediately on receiving the information of the same. The second stage is invoking the formality of talab-i-ishhad which is a demand for invocation of his right in the presence of two witnesses which are essential. Though it is a formality, the formality is required to be followed in its strict sense. How the said two stages will have to be strictly adhered by the preemptor is discussed in detail by coordinate bench of this Court in a reported judgment in the matter of Maheboobsab Buransab Maniyar and Others Vs. Mohadinsab Maheboobsab Maniyar and Others, (2012) ILR (Kar) 1192 wherein while discussing the relevant provision namely Section 236, the Court has taken into consideration the Explanations 1 to 5 which are appended to the said Section.

The learned counsel for the appellant tried to draw the attention of this Court in highlighting that in the instant case there is failure on the part of the plaintiff in not following the procedure so far as with reference to the talab-i-ishhad i.e., raising the demand in the presence of two witnesses. However the said arguments is countered by the learned counsel for the respondents Sri S.S. Yadrami that the said two provisions which are encompassed in Section 236 of Mohammedan Law will have to be appreciated with reference to Explanation 5 which clearly states that no procedure is fixed to consider the basic principles of talab-i-mowasibat and talab-i-ishhad will have to decided in the surrendering circumstances of the facts in each case.

If that is taken into consideration, in the instant case filing of earlier suit for permanent injunction in O.S. No. 73/1998 and also subsequently filing of present suit in O.S. No. 42/2000 would clearly indicate in unequivocal terms that the intention of the plaintiff to exercise his right of pre-emption is shown and spelt and observed by him throughout at every stage and therefore a lapse in mere formality of two witnesses giving in the presence of defendants and putting the demand is only a formality and it need not be strictly followed as could be seen from Explanation 5. However this Court is not inclined to accept the same, which would dilute the strict adherence to the procedure. As rightly observed by the Apex Court in the matter of Shri Audh Behari Singh Vs. Gajadhar Jaipuria and Others, AIR 1954 SC 417 : (1955) 1 SCR 70 where the relevant portion reads as under:

"The right of pre-emption is an incidence of property and attaches to the land itself."

Therefore, it held that:

"The right of pre-emption under Muhammadan Law is a personal right on the part of the pre-emptor to get a re-transfer of the property from the vendee who has already become owner of the same. The right becomes enforceable only when there is a sale but the right exists antecedently to the sale; the foundation of the right being the avoidance of the inconveniences and disturbances which would arise from the introduction of a stranger into the land. The sale is a condition precedent not to the existence of the right but to its enforceability. The correct legal position seems to be that the law of pre-emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owners unfettered right of sale and compels him to sell the property to his co-sharer or neighbour as the case may be. The persons who is a co-sharer in the land or owns lands in the vicinity consequently gets an advantage or benefit corresponding to the burden with which the owner or the property is saddled; even though it does not amount to an actual interest in the property sold. The crux of the whole thing is that the benefit as well as the burden of the right of pre-emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre-emptor does not amount to an interest in the land itself."

In the light of above judgment it should be understood that while exercising such right which is detrimental to the right of the defendant in enjoyment of his property and also in his right to deal with the same, the procedure which is provided under Section 236 is required to be followed in its strict sense. As observed by the Apex Court in the matter of Bhau Ram v. Baij Nath Singh and others and in Sant Ram and others v. Labh Singh and others, wherein the Courts have observed that the conditions which are required to be followed by the plaintiff and which is properly explained by the coordinate bench of this Court in its judgment reported in Maheboobsab Buransab Maniyar and Others Vs. Mohadinsab Maheboobsab Maniyar and Others, (2012) ILR (Kar) 1192 is in the following manner.

"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 pre-emption 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 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."

And also in para 26 which reads as under:

"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 to enforce the right of pre-emption. 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."

On going through aforesaid judgment, it clearly indicates that the plaintiff Gudusab in the instant case has failed to adhere to the procedure which is prescribed in Section 236 i.e., in not making a demand in the presence of two witnesses before filing the suit for pre-emption. In that view of the matter this Court is unable to accept that the plaintiff has established that he has followed the procedure required to seek his right of pre-emption. The finding in the judgment in O.S. No. 73/1998 would not enure to his benefit unless he follow the procedure which is required to be followed as provided under Mohammedan Law. In the absence of the procedure being strictly followed, merely securing judgment and decree in his favour restraining the defendant from selling the property to 3rd party without giving him an option would not enure to his benefit to seek pre-emption. That order by itself would not give him right to ignore the procedure which is statutorily provided under Section 236 of the law. Therefore the first question of law is answered in favour of defendants/appellants herein and against the plaintiff.

In that view of the matter it is seen that the well reasoned judgment passed by the trial Court is reversed by the lower appellate Court under the presumption that merely because the plaintiff having secured the order of permanent injunction in O.S. No. 73/1998 by itself would give him a right of pre-emption without meticulously following the procedure as contemplated under Section 236 of Mohammedan Law, which is an erroneous finding.

In that view of the matter this Court answer the 2nd substantial question of law also in favour of the appellants/defendants in the suit and consequently allow this second appeal filed by the defendants in the original suit who are respondents in R.A. No. 25/2003. In the light of the appeal being allowed, the judgment and decree dated 3.3.2004 passed in R.A. No. 25/2003 is hereby set aside.