# Mohammad Alim & Ors v. Tahir Husain

- **Citation:** (2020) 2 ILRA 1357
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-06
- **Case number:** Second Appeal No. 1798 of 1978
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-alim-ors-v-tahir-husain-45668
- **Pages:** 9

## Headnote

A. Muslim Law - Transfer of property -
Right of 'Pre-emption' - also called
right of 'Shufaa' - Right of preemption to co-sharers - is valid and
not violative of Articles 14, 15 and 16
of Constitution - Held - Plaintiff was a
co-sharer with defendant-3 in respect
of property in dispute - to this extent
right of pre-emption of plaintiff is
valid (Para 28, 29)

B. Muslim Law - Transfer of property -
Pre-emption - Exercise of right of preemption - Right of pre-emption has to
be exercised only when transfer of
property/sale is complete and not
before
thereto
-
till
transfer
is
completed, there is no occasion to
exercise right of pre-emption - Waiver
of right of pre-emption - Onus - When
a plea is raised by defendant that
right of pre-emption has been waived,
onus lie upon defendant to prove

Held - Defence by defendants that offer
was made to plaintiff before execution of
sale deed and since he did not agree, it
amounts to waiver of his right of preemption - Held - it cannot be said that
plaintiff did not exercise his right of preemption and waived such right before
execution of sale deed since till transfer is
completed, there is no occasion to exercise
right of preemption. (Para 34, 38)

Second Appeal dismissed. (E-5)

List of cases cited :

## Text

2 All. Mohammad Alim & Ors. Vs. Tahir Hussain
1357
the Bhadohi-Gyanpur road was sold @
Rs.20,000/- per biswa.

10. Under the circumstances, I am of the
considered view that the sale deed exemplars
being paper Nos.22ga and 23ga can be made
basis to determine market value of the acquired
land of the claimant-appellant as on the date of
acquisition, i.e. 17.04.1982. Since as per the
sale deed exemplars filed in evidence, smaller
area measuring 10 dhoors was sold @
Rs.20,000/- per biswa while total land
measuring 1.492 acres, i.e. 2 bighas 7 biswas
and 16 dhoors was acquired and therefore a
deduction on account largeness of area
deserves to be made.

11. Considering the facts and evidences
on record and after applying deduction of 40%
for the largeness of the area, the market value
of the acquired land of the claimant-appellant
is determined @ Rs.12,000/- per biswa. The
claimant-appellant shall be entitled to all other
statutory benefits as per the impugned
judgment of the reference court dated
23.02.1985 in L.A.R. No.113 of 1984 (Kailash
Nath Gupta vs. Collector, Varanasi). The
impugned judgment and decree is accordingly
modified.

12. The appeal is partly allowed to the
extent indicated above.
----------
(2020)02ILR A1357

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.01.2020

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Second Appeal No. 1798 of 1978

Mohammad Alim & Ors. ...Appellants
Versus
Tahir Husain ...Respondent
Counsel for the Appellants:
Sri R. Asthana, Sri Gulrez Khan, Sri H.S.
Ahmad, Sri Haji Iqbal Ahmad, Sri Javed
Husain Khan, Sri Ramendra Asthana, Sri
W.H. Khan

Counsel for the Respondent:
Sri R.K. Jain, Sri R.G. Prasad

A. Muslim Law - Transfer of property -
Right of 'Pre-emption' - also called
right of 'Shufaa' - Right of preemption to co-sharers - is valid and
not violative of Articles 14, 15 and 16
of Constitution - Held - Plaintiff was a
co-sharer with defendant-3 in respect
of property in dispute - to this extent
right of pre-emption of plaintiff is
valid (Para 28, 29)

B. Muslim Law - Transfer of property -
Pre-emption - Exercise of right of preemption - Right of pre-emption has to
be exercised only when transfer of
property/sale is complete and not
before
thereto
-
till
transfer
is
completed, there is no occasion to
exercise right of pre-emption - Waiver
of right of pre-emption - Onus - When
a plea is raised by defendant that
right of pre-emption has been waived,
onus lie upon defendant to prove

Held - Defence by defendants that offer
was made to plaintiff before execution of
sale deed and since he did not agree, it
amounts to waiver of his right of preemption - Held - it cannot be said that
plaintiff did not exercise his right of preemption and waived such right before
execution of sale deed since till transfer is
completed, there is no occasion to exercise
right of preemption. (Para 34, 38)

Second Appeal dismissed. (E-5)

List of cases cited :

1. Bhanu Ram Vs B. Baijnath Singh AIR 1961
SC 1327;

2. Sant Ram Vs Labh Singh AIR 1965 SC 314
1358 INDIAN LAW REPORTS ALLAHABAD SERIES
3. A. Razzaque Sajansaheb Bagwan Vs Ibrahim
Haji Mohd. Hussain AIR 1999 SC 2043

4. Bishan Singh Vs Khazan Singh AIR 1958 SC
838

5. Irishna Vs State of Haryana AIR 1994 SC
2536

6. Begum Vs Muhammad Yakub (1894) IL 16
All 344

7. Zamani Begum Vs Khan Muhammad (1924)
46 All 142

10. Radhakisan Laxminarayan Vs Shridhar AIR
1960 SC 1368

11. Ram Saran Lall Vs Mst. Domini Kuer AIR
1961 SC 1747

12. S.K.Mohd. Rafiq Vs Khalilul Rehman AIR
1972 SC 2162

13. Kumar Gonsusab Vs Sri Mohammed Miyan
JT 2008 (9) SC 334

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Sri W.H.Khan, Senior Advocate,
assisted by Sri J.H.Khan, learned counsel
for appellants is present. None has
appeared on behalf of respondents though
this appeal has been called in revise. Since
appeal is old one, relates to the year 1978,
hence I proceed to hear and decide the
same ex parte.

2. This is defendants' appeal under
Section 100 of Code of Civil Procedure
(hereinafter referred to as "C.P.C.")
arising from judgment and decree dated
01.6.1978 passed by Sri I.P.Singh, Vth
Additional District and Sessions Judge,
Saharanpur, in Civil Appeal No.337 of
1976 dismissing the same and confirming
judgment and decree dated 18.9.1976
passed by Sri R.C.Pandey, Civil Judge,
Saharanpur decreeing Original Suit No.42
of 1972.

3. Appeal was admitted vide order
dated dated 17.7.1978 on the substantial
questions (A) and (D), which read as under
:

"A.
Whether
right
of preemption 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)

4. The facts giving rise to present
appeal are that Original Suit No.42 of
1972 was filed by Tahir Husain, sole
plaintiff-respondent (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.

5. As per plaint dated 03.03.1972,
suit property detailed at the bottom of
plaint is described as under :

"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.
2 All. Mohammad Alim & Ors. Vs. Tahir Hussain
1359

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."

6. The plaint case set up by plaintiff
Tahir Husain is that Darogha Mohd.
Ibraheem was first owner in possession of
suit property. When Darogha Mohd.
Ibraheem expired, he left behind two heirs
i.e. two daughters viz. Mrs. Amtul and
Mrs. Amna Khatoon. Thereafter, Mst.
Amtul died without leaving any issue. She
left her sister Mrs. Amna Khatoon as her
heir, who became sole owner in possession
of property mentioned in the plaint. Later
on, Amna Khatoon also died. She left two
sons viz. Shabbeer Ahmad and Reyaz
Ahmad and daughter Niyamat Ilahi, as
heirs,
who
became
joint-owners
in
possession of property mentioned in the
plaint. Subsequently, Shabbeer Ahmad S/o
(Late) Amna Khatoon also died. He left
plaintiff, Zahid Husain, 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.

7. Plaintiff is joint-owner in
possession of property as described in the
plaint in accordance with Shariyat, along
with his brothers, sisters, Mrs. Khushnuma
Begum (step-mother) and Reyaz Ahmad
and Mrs. Niyamat Ilahi. Suit property is
located at a very prime locality near
Makan Ram Leela, at Madarsa Mazahirul
Uloom, at a crossing inside the city,
Saharanpur. It was around twenty years
ago that the rent used to be very nominal
in city Saharanpur. Zinda Hasan S/o Abdul
rented suit property at the rate of Rs.30/-.
He started business of Taal Sokhta.
Plaintiff is engaged in sale and purchase of
trees. He owns no shop. He felt dire need
of a shop for the purpose of keeping woodlog. Hence, in 1971, he asked Zinda Hasan
to vacate suit property. However, he
plotted a conspiracy in collusion with
others who were his relatives and refused
to vacate the premises.

8.

Zinda
Hasan,
under
the
apprehension
of
being
vacated,
in
collusion with Mrs. Niyamat Ilahi, who
was his relative, agreed secretly to sell her
1/5th part of suit property to appellantsdefendants-1 and 2 on a consideration of
Rs.8,500/-, without knowledge of or
information to plaintiff. Defendant -3, Mst.
Niyamat Ilahi, sold out her 1/5th part of
suit property through sale deed dated
24.09.1971,
for
consideration
of
Rs.8,500/- secretly, without knowledge of
and information to plaintiff. As soon as
plaintiff came to know about sale deed
executed between Mrs. Niyamat Ilahi and
defendants-1 and 2, first he performed
duty of pre-emption and immediately went
to the spot alongwith witnesses in the
presence of defendants 1 and 2 and
performed
duty
of
preemption.
On
27.10.1971, he gave an application for
copy of sale deed in the office of SubRegistrar, Saharanpur. He received copy
on 12.11.1971. Parties are Sunni Muslims
and Mohammadan Law is applicable to
them. Plaintiff has been a co-sharer in the
property mentioned even before sale deed
1360 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

9. Plaintiff claimed following reliefs
:

"v-
c:;s
fMxzh
'kqQk
'kjbZ
izfroknhx.k ua0 1 o 2 dks gqDe fn;k tkos fd
og oknh ds lQkZ ls tk;nkn eqQLlyk tSy ds
1@5 fgLls dh ckcr vUnj fe;kn eksb;uk
vnkyr oknh ds gd esa c;ukek rgjhj o
rdehy dj ds jftLV~h djk nsA vkSj eqcfyx
8500 :i;s jftLV~h ij olwy dj ysA vkSj vxj
izfroknhx.k ua0 1 o 2 ,slk djus esa dkflj jgs
rks vnkyr mudh rjQ ls c;ukek o tjs leu
eqcfyx 8500 :i;s oknh ds gd esa rgjhj o
rdyhe dj ns vkSj eqcfyd 8500 :i;s vnkyr
esa tek djus dk oknh dks ekSdk fn;k tkosA

c- oknh dks [kpkZ eqdnek izfroknhx.k
ua0 1 o 2 us fnyk;k tkosA**

A.
That
as
pre-emption,
defendants no-1 & 2 be directed to get the
registry executed of the 1/5 part of the
property mentioned, in favour of the
plaintiff within the stipulated time and
recover the amount of Rs. 8500/-, and if
the defendants 1 and 2 fail to do so, the
Court may kindly receive an amount of Rs.
8500/- for the purpose of sale deed and get
the sale deed executed. The plaintiff may
be allowed to deposit the amount of Rs.
8500/- in the court.

B. The expenses of the case be
awarded
to
the
plaintiff
from
the
defendants no-1 and 2.

(English Translation by Court)

10. Suit was contested by defendants
1 and 2 by filing a combined 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/-.
2 All. Mohammad Alim & Ors. Vs. Tahir Hussain
1361

(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.

(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 preemption.

(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.

11. Subsequently, there was amendment
in the written statement. Paras 10a and 10b
were inserted stating as under :

^^10 v- ;g fd nkSjku vihy ekSj[kk 30-477 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.

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)

12. Trial Court formulated following
four issues :

"1. Whether the plaintiff is
entitled to seek pre-emption?

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?"

13. Issue-1 was answered in favour
of plaintiff and thereafter issues 2 and 3
were taken together. Both these issues
were answered in favour of plaintiff. As a
result thereof issue-4 was answered
holding that suit is liable to be decreed.
Consequently, Trial Court decreed the suit
and operative part of judgment reads as
under :

"The suit for pre-emption in
respect of one-fifth share of the defendant
1362 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

14. Defendants 1 and 2 i.e.
Mohammad Alim and Mohammad Arif
assailed judgment of Trial Court filing
Civil Appeal No.337 of 1976 in the Court
of District Judge, Saharanpur vide memo
of appeal dated 7.11.1976.

15. Subsequently, an amendment
application was filed stating that after
pronouncement of judgment by Trial
Court, but before filing of appeal,
defendant 3 in the suit i.e. Smt. Niyamat
Ilahi, widow of 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.

16.

Lower
Appellate
Court
(hereinafter
referred
to
as
"LAC")
considered
following
questions
for
deciding appeal:

(i) Impugned decree is not made
in terms of Order 20 Rule 14 C.P.C.

(ii) Appellants having become
co-sharerer in disputed property, no preemption can be enforced against them.

(iii) Whether there was requisite
demand for pre-emption?

17. While answering question (i),
Court found that Trial Court has obviously
ignored Order 20 Rule 14 C.P.C., but. that
defect was curable therefore, that defect
will not vitiate the judgment. Questions
(ii) and (iii) were answered against
appellants.
Consequently,
appeal
was
dismissed.

18. Before this Court, Appellants
filed an application dated 21.4.2019 under
Section 100(5) Second Proviso, C.P.C.,
proposing three more substantial questions
of law, and formulated the same as under :

"F.
Whether
the
lower
appellate
court
erred
in
law
in
converting
a
decree
of
specific
performance of contract into a decree
of pre-emption on an assumption that
it was the mistake of the trial court
without looking into the plaint which
itself prayed a decree of specific
performance. There was no amendment
sought by the plaintiff to amend the
prayer in the plaint nor the plaintiff
filed any cross objection or cross
appeal?

G.
Whether
the
lower
appellate
court
erred
in
law
in
importing his personal knowledge by
observing that plaintiff 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
2 All. Mohammad Alim & Ors. Vs. Tahir Hussain
1363
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."

19. This application has been
opposed by plaintiff-respondent by filing
objection/counter
affidavit
sworn
on
29.5.2019 stating that suit was for decree
founded on pre-emption and not specific
performance.
Finding
was
already
recorded by Courts below that sale deed
dated 24.9.1971 came to the knowledge of
plaintiff on 27.10.1971 and that defendant
3 was a proforma respondent against
whom no relief was sought, hence, it is
pleaded that additional questions sought to
be raised have not arisen in this appeal and
should not be allowed.

20. I have gone through additional
questions and find that entire case set up
by plaintiff was founded on the right of
'pre-emption' and that is why appeal was
admitted on two questions relating to
alleged right of pre-emption, pleaded by
plaintiff, and decided by Courts below.
With regard to date of sale deed and
knowledge, I find that date of sale deed is
not in dispute and date of knowledge is
also subsequent to the date of execution of
sale deed. Therefore, it would make no
material
difference.
Further
non
substitution of heirs of defendant 3 after
her death would not result in abating entire
proceedings as no relief was claimed
against Smt. Niyamat Ilahi since she had
already executed sale deed in favour of
Mujeeb. Therefore in my view, the three
additional
questions,
sought
to
be
formulated by appellants can neither be
said to be substantial questions of law
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.

21. Now, I proceed to decide two
substantial questions of law, as noticed
above.

22. Right of ''pre-emption', also
called right of ''Shufaa', is right which the
owner
of
an
immovable
property,
possesses, to acquire by purchase, another
immovable property, which had been sold
to another person in preference by paying
a price equal to that settled, or paid by the
latter. Now, it is settled that right of preemption based on vicinage is void and
unconstitutional. It has been declared so
by Supreme Court in Bhanu Ram vs. B.
Baijnath Singh AIR 1961 SC 1327; Sant
Ram vs. Labh Singh AIR 1965 SC 314
and A. Razzaque Sajansaheb Bagwan
vs. Ibrahim Haji Mohd. Hussain AIR
1999 SC 2043.

23. Pre-emption is not a right of ''repurchase', either from vendor or vendee,
involving any new contract of sale. It is
simply a right of substitution, entitling preemptor, by reason of a legal incident to
which the sale itself was subject to stand in
the shoes of the vendee in respect of all the
rights and obligations arising from the
sale, under which he has derived his title.

24. In Bishan Singh vs. Khazan
Singh AIR 1958 SC 838, Court said that
right of pre-emption is a right of
1364 INDIAN LAW REPORTS ALLAHABAD SERIES
substitution but not of repurchase. Preemptor takes the entire bargain and steps
into the shoes of original vendee.

25. Validity of right of preemption
has
been
examined
by
Supreme Court in the cases noticed
above in the light of Article 19(1)(f) of
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).

26. However, that is not material in the
present case since right of pre-emption sought
to be exercised in this case relates to the period
when Article 19(1)(f) was on the statute book.
Therefore, I have to decide the matter as the
law as then was.

27. Right of pre-emption is an incident
annexed to a property. Although it is essentially
a right in rem but it its exercise, from the time
it arises upto the time of decree, is restricted as
a personal right, which is neither heritable nor
transferable. Right of pre-emption by a cosharer has been upheld by Supreme Court in
Bhanu Ram (supra) with reference to Article
19(5) of Constitution treating it to be a
reasonable restriction.

28. While considering validity of Section
15(1)(b) of Punjab Pre-emption Act, 1923, in
Irishna vs. State of Haryana AIR 1994 SC
2536 Court held that right of pre-emption to
co-sharers is valid and not violative of Articles
14, 15 and 16 of Constitution.

29. In the present case, admittedly
plaintiff was a co-sharer with defendant-3 in
respect of property in dispute, therefore, to this
extent right of pre-emption of plaintiff is valid
and constitutional.

30. In view of above discussion, it
cannot be said that right of pre-emption as a
whole is unconstitutional. In a restricted way,
right of pre-emption of co-sharers has been
held to be constitutional, therefore, question
(A) is answered against appellants.

31. Now, coming to question (D), it is
also now well settled that right of pre-emption
arise only out of a valid, complete and bona
fide sale. A Full Bench of this Court in Begum
vs. Muhammad Yakub (1894) IL 16 All 344
followed in Zamani Begum vs. Khan
Muhammad (1924) 46 All. 142 has taken a
view that right of pre-emption arises not only
when an out-and-out sale has been completed,
but also, when a complete contract of sale
without any option to the vendor has been
made.

32. This aspect has now been
considered
in
Radhakisan
Laxminarayan vs. Shridhar AIR 1960
SC 1368 and it has been held that transfer
of property where Transfer of Property
Act, 1882 (hereinafter referred to as "Act,
1882") applies, has to be under the
provisions of that Act only. Mohomedan
Law or any other personal law of transfer
of property cannot override the statute.
Therefore, unless title has passed in
accordance with Act, 1882, no right to
enforce pre-emption arises. Supreme Court
thus has made it clear that demand,
exercising right of pre-emption, should be
made after registration of sale deed. This
view has been subsequently followed in
Ram Saran Lall Vs. Mst. Domini Kuer
AIR 1961 SC 1747 and also reiterated in
2 All. State of U.P. Vs. Abid & Anr.
1365
S.K.Mohd. Rafiq vs. Khalilul Rehman
AIR 1972 SC 2162.

33. The above aspect stands further
clarified from a subsequent judgment in
Kumar Gonsusab vs. Sri Mohammed
Miyan JT 2008 (9) SC 334 wherein it has
been held that a contract for sale does not
by itself create any interest in or charge on
immovable property. Therefore, where
parties enter into mere agreement to sell, it
creates no interest in the suit property in
favour of vendee. The proprietary title
does not validly pass from vendor to
vendee. Until that is completed, no right to
enforce pre-emption arises.

34. This also reiterate the fact that
right of pre-emption can be 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.

35. I may also add at this stage that
right of pre-emption has not been looked
upon with great favour by Courts since it
is in derogation of right of owner to
alienate his/her property. It is neither
illegal nor fraudulent for parties to a
transfer to avoid and defeat a claim for
pre-emption by all legitimate means. It is
a weak right and Courts would not go
out of their way to help the pre-emptor.

36. In the present case, defence
taken by defendants is that offer was
made to plaintiff before execution of sale
deed and since he did not agree, it
amounts to waiver of his right of preemption. This plea goes contrary to law,
as discussed above, since right of preemption has to be exercised only when
transfer
of
property
is
complete.
Therefore, it cannot be said that plaintiff
did not exercise his right of pre-emption
and waived such right before execution
of sale deed since till transfer is
completed, there is no occasion to
exercise right of pre-emption.

37. Moreover, Question (D), which
has been argued by learned counsel for
appellants, based on defence taken by
defendants that plaintiff was given offer
to
purchase
suit
property
before
execution of sale deed but he did not
agree and thereafter sale deed was
executed. This made it clear that there
was no waiver on the part of plainitff
and with regard to his subsequent
exercise of right of pre-emption, nothing
otherwise has been brought to the notice
of this Court. Hence, I find no reason but
to
answer
question
(D)
against
appellants.

38. No other point has been argued.

39. Appeal lacks merit and is
dismissed with costs throughout.
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(2020)02ILR A1365

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.01.2020

BEFORE
THE HON'BLE ARVIND KUMAR MISHRA-I, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Government Appeal No. 2116 of 2001

State of U.P. ...Appellant
Versus
Abid & Anr. ...Respondents

Counsel for the Appellant:
Sri R.P. Dubey, A.G.A.

Counsel for the Respondents: