1982 PLP 2441 (CLC)

This first civil appeal is directed against the judgment and decree of first Senior Civil Judge, Hyderabad, passed in F.. C. Suit No. 275/75 decreeing the suit of respondent for pre‑emption against the appellant and one Mst. Aisha. The facts relevant to the present appeal are as under

1. The respondent instituted a suit for pre‑emption against the appellant and one Mst. Aisha wife of Dr. Bashir Ahmad, in respect of first floor tenement of House No. 1281/5, Bherumal Building, Ward F, Court Road, Opposite Firdous Cinema, Hyderabad. The right of pre‑emption was claimed by the Respondent as "Shaft‑e‑Sharik" and Shaft‑e‑Khaleet". It was urged in the plaint that in January, 1975, Mst. Aisha who was owner of first floor tenement of House S. 1281 /5/A, entered into an agree ment to sell the premises to the appellant without knowledge of respon dent and completed the sale surreptitiously. It was further alleged that the price of the tenement though paid was Rs. 25,000 but in order to defeat the right of respondent it was stated in the registered sale deed at Rs. 65,

000. It was also averred in the plaint that possession of the house was delivered to the appellant by the vendor on 2nd February, 1975 and on the same day when the respondent came to know of the sale he asserted his right of pre‑emption by making the first demand (Talab‑e Muwasibat) and on the same day the plaintiff in presence of witnesses further made the second demand (Talab‑e‑Ishhad) from the appellant asserting his right of `Shufaa' in the property and offered the same price which she had paid for purchasing the above property but the appellant turned down the offer. The appellant as well as Mst. Aisha, the vendor, filed a joint written statement in the suit denying all the allegations made against them in the plaint. The trial Court on the basis of controversy between the parties settled the following issues :‑ "(1) Whether the suit is not maintainable in law as purchaser/defen dant No. 2 is a Hindu ? (2) Whether Plaintiff is Shaft‑i‑Sharik and Shaft‑i‑Khaleet with defen dant No. I in respect of suit premises ? (3) Whether plaintiff made demands asserting his rights of pre‑emp tion as referred by law ? (4) For what price defendant No. 1 sold the suit property to defendant No. 2 ? (5) Whether the plaintiff has any cause of action to file this suit 7 (6) What should the decree be ? After recording the evidence the trial Court came to the conclusion that the respondent was entitled to claim pre‑emption in respect of the premises purchased by the appellant on the ground of being a "Shafi e‑Khaleet". The claim of respondent as Shafi‑e‑Shareek was rejected by the Court. In so far Talab‑e‑Mawasibat and Talab‑e‑Ishhad were concerned, the trial Court found them in order and on the valuation of property the conclusion reached by the trial Court was that it was sold by the vendor to the appellant for a sum of Rs. 65,000 and not Rs. 25,000 as claimed by respondent. Accordingly the suit of res pondent was decreed and he was directed to deposit the deficit court‑fee amounting to Rs. 1,125 and the sale consideration amounting to Rs. 65,000 within one month of the passing of the judgment and the appel lant was directed to receive the sum of Rs. 65,000 and convey the property and hand over its possession to respondent.

2. I have heard Mr. Abdul Matin and Mr. Syed Inayat Ali, the learned counsel for the appellant and respondent respectively in this appeal. The learned counsel for the appellant has assailed the judgment and decree of the trial Court on the following grounds :‑‑ (i) That the Vendee (Appellant) being a Hindu by faith the right of pre‑emption could not be enforced against her. (ii) That the findings of trial Court that the respondent was Shafee‑e -Khalezt is unsupported on record. (iii) That the first demand (Talab‑e‑Mawasibat) was not made promptly by the respondent after he came to know of the sale and therefore the right of pre‑emption if any was lost. (iv) That the respondent having failed to deposit the purchase money within the time allowed by the Court in terms of Order XX, rule 14, C. P. C. the right of pre‑emption was lost and became unen forceable in law and suit is liable to be dismissed. In support of his first contention the learned counsel for the appellant has relied upon the case of Qudratullah v. Mohni Mohan (4 B L R 134) and Muhammad Beg v. Narayan Meghaji Patel (32 1 C 933). There appears to be some divergence of opinion between different High Courts in India, on the point whether the pre‑emptor as well as the purchaser both should be Muslim in order to enforce the right of pre‑emption. In the case reported as Qudratullah v. Mohni Mohan a Full Bench of the Calcutta High Court by a majority decision held that in order to enforce a claim of pre emption in respect of a property both the pre-emptor and the purchaser should be Muslims. This view of Calcutta High Court is followed by the High Court of Bombay. However, a Full Bench of Allahabad High Court in the case of Govinda Dayal v. Inayatullah (7 All. 775) took a contrary view and disagreed with the view of Calcutta High Court expressed in the case of Qndratullah v. Mohni Mohan on the ground that the Calcutta view was based on misinterpretation of the Arabic expression 'Tajibo' which was wrongly translated as meaning "established" whereas the correct meaning is "becomes obligatory, necessary or enforceable". Both the above Full Bench cases of Allahabad and Calcutta High Courts came up for consideration before the Supreme Court of India in the case of Audh Behari v. Gajadhar (A I R 1954 S C 417) and the learned Judges of the Supreme tracing the historical background and foundation of law of pre‑emption in British India agreed with the leading opinion of Mahmood, J. in the Full Bench case of Allahabad High Court (Govinda Dayal v. Inayatullah), The opinion of the learned Judges of Supreme Court of India in Audh Behari's case is recorded as follows at page 422 of the report :‑ "(16) In our opinion it would not be correct to say 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. We prefer to accept the meaning of the word "Tajibo" used in the Hedaya in the sense in which Mr. Justice Mahmood construes it to mean and it was really a mistranslation of that word by Hamilton that accounted to a great extent for the view taken by the Calcutta High Court. It is true that the right becomes enforceable only when there is a sale but the right exits 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. We agree with Mr. Justice Mahmood that the sale is .a condition precedent not to the existence of the right but to its enforceability." It will thus be seen that the opinion expressed by the learned Judges in the Full Bench case of Govinda Dayal v. Inayatullah, that it is not necessary in order to enforce the right of pre‑emption that the purchaser should also be a Muslim, proceeds on the ground that the right of pre‑emption was not one of re‑purchase from the vendee but it is a right inherent in the property. In other words the right of pre‑emption is a sort of legal servitude running with the land. It is simply a right of substitution ‑entitling the pre‑emptor, 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. It is in effect, as if, in a sale the vendee's name was rubbed out,,! and the pre‑emptor's name substituted in his place. I am accordingly of the view that in order to enforce a claim of pre‑emption it is not necessary that both the pre‑emptor and purchaser should be Muslims. The right of pre‑emption being in the nature of a legal servitude running with the land, it could be enforced against the property in whosoever hand it may be. The respondent was, therefore, entitled to enforce the claim of pre emption against the appellant in respect of the suit premises.

3. It is next contended by the learned counsel that the findings of the trial Court that the respondent was a Shafi‑e‑Khaleet is unsupported on record. The admitted position in the case is that the two premises namely, one owned by the appellant and the other owned by the respondent are situated one over the above. The ground floor premises is occupation' of the respondent while the first floor is occupied by the appellant. The plaintiff Ghulam Hussain in his statement before the Court categorically stated that the passage and drainage system of both the house is same‑

18. The suggestion given to this witness in cross‑examination that the passage and drainage of both the tenements are separate was denied. In view of the admitted position that the premises are situated one over the above,1 the conclusion reached by the trial Court that the respondent is Shafi‑e‑! Khaleet appears to be correct and in accordance with the evidence.

4. The third contention of the appellant is that there was unreasonable delay on the part of respondent in maintaining "Talab b4awasibat". It is urged by the learned counsel for the appellant that the respondent in his examination‑in‑chief asserted that on 2nd February, 1975 when he came to know of the transfer in favour of the appellant he made the first demand (Talab‑e‑Mawasibat) at about 11 a.m. after taking the witnesses, Mushtaq Soofi and Gul Hussan Sahto with him to the house of appellant. The second demand (ralab e‑Ishhad) was made on the same day at about 5 p.m. in presence of the same witnesses. However, in his cross‑examination the respondent admitted that he came to know of the sale at about 9‑30 a.m. when he was informed by the son of the appellant about the sale of the premises in her favour. It is accordingly urged that the delay of about 11 hours in making Talab‑e‑Mawasibat was fatal to the right of pre‑emption. In the case of Jarfan Khan v. Jabbar Mean ((1884) ‑10 Cal. 383), the plaintiff was informed about the sale of land by his wife, when he came to house ; whereupon without saying any thing to his wife, he went to his chest, took out the sum required, called the witnesses, proceeded first to the premises sold where he found the purchaser and tendered the money, crying aloud that he had the right of pre‑emption and wanted to exercise it and then on the money being refused, proceeded to the house of vendor and made an equally formal declaration to him. It was held in the above circumstances that the demand of plaintiff though met the requirement of Talab‑e‑Ishhad, it did not fulfil the requirement of Talab‑e‑Mawasibat. In the case of Monajul Haq v. Shafiullah (P L D 1961 Dacca 640), it was held that failure of pre‑emptor to make the first demand at the registration office after having come to know of the sale and travelling 21 miles to the sold property and making demand there amounted to delay is making "Talab‑e‑Mawasibat." In arriving at the above conclusion the learned Judge of the erstwhile High Court of Dacca relied upon the following passage from Hedaya, Second Edition, page 550 :‑ "Claims to "Shaffa" are of three kinds ; the first of these is termed "Talab‑e‑Mawasibat", or immediate claim, where the "Shafee" prefers his claim the moment he is apprised of the sale being concluded, and this it is necessary that he should do, insomuch that if he makes any delay his right is thereby invalidated, for the right of "Shaffa" is but' of a feeble nature, as has been already observed, and the Prophet, moreover has said : The right of Shaffa is established in him who prefers his claim without delay. If the Shafee receive a letter which, either is the beginning of the middle, apprises him of the circumstances of his "Shafee", and he read it on to the end, his right of Shaffa is thereby invalidated. Manv of our modern doctors accord in this opinion, and it is in one place recorded as the doctrine of Muhammad." "Talab‑e‑Mawasibat" is defined as the immediate claim. The 'Shafee' must make this claim the moment he learns of the sale of the property and any delay in asserting this claim will invalidate the right of "Shafa" for the right of 'Shafa; is but of feeble nature. The Prophet (peace upon him) has said "the right of Shaffa is established in him who prefers his claim without delay (see Hedaya by Hamilton at page 550). The respondent has not explained the delay of about 1 hours in making the Talab‑e‑Mawasibat. It has come in the evidence that the appellant was residing on the 1st floor while the respondent was on the ground floor of the same building. In these circumstances the delay of hours in making the first demand (Talab‑e‑Mawasibat) was fatal to the claim of 'Shafa' asserted by the respondent. 1 accordingly reverse the finding of the trial Court on issue No. 3 and hold that the right of pre‑emption asserted by the respondent was defeated on account of delay in making the first demand (Talab‑e‑Mawasibat) and, therefore, the plaintiff was not entitled to the decree of pre‑emption.

5. It is lastly contended by the learned counsel for the appellant that the deposit of purchase money amounting to Rs. 65,000 was not made by the respondent in accordance with the directions contained in the judgment and therefore in view of the provision of Order XX, rule 14, C. P. C. the suit is liable to be dismissed. Order XX, rule 14 is to the following effect :‑ "

14. Decree in pre‑emption suit.‑(1) Where the Court decrees a claim to pre‑emption in respect of a particular sale of property and the purchase money has not been paid into Court, the decree shall‑ ‑ (a) specify a day on or before which the purchase money shall be so paid, and (b) direct that on payment into Court of such purchase money, to gether with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase money and the costs (if any) are not so paid, the suit shall be dismissed with costs. (2) Whether the Court has adjudicated upon rival claims to pre‑emp tion, the decree shall direct‑ (a) if and in so far as the claims decreed are equal in degree, that the claim of each pre‑emptor complying with the provision of sub‑rule (1) shall take effect in respect of a proportionate share of the property including any proportionate share in respect of which the claim of any pre‑emptor failing to comply with the said provisions would, but for such default, have taken effect ; and (b) if and in so far as the claims decreed are different in degree, that the claim of the inferior pre‑emptor shall not take effect unless and until the superior preemptor has failed to comply with the said provisions." It is contended by the learned counsel for the appellant that the purchase money amounting to Rs. 65,000 was to be paid/deposited by the respon dent within 30 days of the judgment. The judgment was pronounced on 3rd September, 1977 and therefore this amount could be deposited up to 2nd October, 1977. It is an admitted position that on 28th September, 1977 the respondent made an application under section 151, C. P. C. praying for extension of time to deposit the purchase money. The trial Court ordered notice of this application to the appellant. However, no notice was issued and this application was dismissed as not pressed on 13th October, 1977. A second application was then filed by the respondent on the same day praying that he may be allowed to pay the amount of Rs. 65,000 which was allowed by the Court same day‑without notice to appellant but without prejudice to the right of other side. The amount was deposited by the respondent on 13th October, 1977 after the above order was passed by the Court. It is contended by the learned counsel for the respondent that there was no delay in making the deposit of purchase money in Court as it was to be made within 30 days of the decree in the suit. The decree in the suit was admittedly signed by the Presiding Officer on 1st October, 1977 and, therefore, it is contend ed that the deposit of the amount on 13th October, 1977 by the respon dent was within time. The contention of the learned counsel for the respondent is that in accordance with the provision of Order XX, rule 14, C. P. C. the direction for deposit of purchase money is to given in the decree and since the decree did not come into existence until it was signed by the Judge by 1st October, 1977 the time available to the respondent to deposit the amount was upto 30th October, 1,

977. Reliance is placed by the learned counsel on the case of Government of Pakistan v. Niaz Muhammad (P L. D 1967 S C 271). In the Supreme Court case the matter was considered by the Court with regard to the period of limitation prescribed for filing an appeal under Article 156 of the Limitation Act and with reference to the provision of Order XLI, rule 1, C.P.C. it was held that the terminus a quo under Article 156 of Limitation Act for filing an appeal is the date of decree and not the date of judgment. It was observed by the Court in the above case that although notionally the decree when signed relates back to the date of judgment but in cases where there is delay in signing the decree the period which elapsed between the announcement of judgment and signed of decree will ordinarily be accommodated in the period requisite for obtaining a copy of the decree and time would run from the date of signing of decree under Article 156 of the Limitation Act. The above cited case in my humble view has no application to the present case. In the case before me the trial Court gave direction to respondent for deposit of purchase money amounting to Rs. 65,000 together with deficit court fee of Rs. 1,125 within one month of the passing of the judgment. The argument of the learned counsel, therefore, that the decree was signed later on and therefore the direction should be construed as having effect n from the date of signing of the decree is not correct. Similarly the order passed by the trial Court on the application of respondent dated 13th October, 1977 allowing him to deposit the amount in Court is also of n significance as firstly the order was passed without notice to the appellant and secondly it was made/passed without prejudice to the right of the appellant in this regard. In the case of Shah Wali v. Ghulam Din (P L D 1966 S C 983) it was held by the Supreme Court in the majority judgment that Court after having passed the decree for pre‑emption and fixed the time for payment of purchase money could not enlarge the time under section 148, C. P. C. and the suit in these circumstances stood dismissed for default in payment of purchase money in time. In view of above legal position I held that the deposit of the amount by the respondent on 13th October, 1977 was not in accordance with the direction contained in the judgment of the lower Court and, therefore, the respondent lost the right of enforcing the decree of pre‑emption passed in his favour by the trial Court and the suit stood dismissed for such default.

6. For the aforesaid reasons I reverse the decree of the trial Court and dismiss the suit of respondent. However, in the circumstances of the case there will no order as to costs. M. Y. H. Appeal accepted.