2001 (7) TMI 1317 - SC - Indian Laws

Summary

Issues Involved:
1. Principle of talab in Muhammadan Law.
2. Right of pre-emption and its nature.
3. Contextual facts and procedural history.
4. Effect of notification dated 7th April, 1927.
5. Issue of waiver of right of pre-emption by the plaintiffs.

Issue-wise Detailed Analysis:

1. Principle of Talab in Muhammadan Law:
The principle of talab in Muhammadan Law has three specific facets: talab-e muwathaba (first demand), talab-e ishhad (second demand), and talab-e tamlik or talab-e khusumar (initiation of legal action). Talab-e muwathaba requires the preemptor to assert his claim immediately upon hearing of the sale. Talab-e ishhad involves making the demand in the presence of two witnesses and either the vendor or the purchaser. Talab-e tamlik is the initiation of legal action, which must be brought within one year of the purchaser taking possession of the property. The law is settled that any unreasonable delay in making these demands will be construed as an election not to pre-empt.

2. Right of Pre-emption and Its Nature:
The right of pre-emption (shuf'a) is the right which the owner of immovable property possesses to acquire by purchase any immovable property sold to another person. The Supreme Court in Shri Audh Behari Singh v. Gajadhar Jaipuria & Ors. [1955]1SCR70 held that the right of pre-emption is an incidence of property and attaches to the land itself. The right is not a mere personal right but a limitation on the ownership of the property, compelling the owner to sell to a co-sharer or neighbor. It does not amount to an actual interest in the property sold but can be enforced against the owner of the land for the time being.

3. Contextual Facts and Procedural History:
The defendants sold their house to defendant No. 1 on 30th July 1962. The plaintiffs, co-sharers, filed a suit claiming the right of pre-emption. The trial court dismissed the suit, holding that the plaintiffs had waived their right to pre-emption and had not made the necessary talabs. The appellate court reversed this decision, decreeing the suit for pre-emption. The High Court dismissed the second appeal, leading to the special leave petition before the Supreme Court.

4. Effect of Notification Dated 7th April, 1927:
The notification required sellers to give notice of the sale through the court to persons with a right of pre-emption, who then had three months to tender the price through the court. The Rajasthan High Court in Radha Ballabh Haldiya & Ors. v. Pushalal Agarwal & Ors. held that this notification modified the customary right of pre-emption in Jaipur, making the formalities of making talabs unnecessary. The notification was seen as a complete code for enforcing the right of pre-emption, except for the concept of pre-emption itself, which was derived from customary law.

5. Issue of Waiver of Right of Pre-emption by the Plaintiffs:
The main issue was whether the plaintiffs waived their right of pre-emption by expressing an inability to purchase the house and refusing to purchase it after the sale deed was executed. The burden of proof was on the defendants. The High Court found no evidence to support the defendants' claim that the plaintiffs had waived their right. The Supreme Court upheld this finding, stating that the High Court's decision was based on evidence and did not warrant interference.

Conclusion:
The Supreme Court dismissed the appeal, upholding the High Court's decision that the plaintiffs had not waived their right of pre-emption and had complied with the necessary legal requirements. The notification dated 7th April, 1927, was significant in determining the procedural aspects of enforcing the right of pre-emption in Jaipur. The appeal was dismissed without any order as to costs.