9911796707
TMI Blog1972 (5) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... ortion came to the share of the four daughters. Respondent No. 1 purchased the western portion of the house from the widow and the sons. On August 19, 1952 he also entered into an agreement with the four daughters for the purchase of their part of the house, namely, the eastern portion. The period in which the sale-deed was to be executed was three months but it appears that the sale was not completed. On August 11, 1953 all the four daughters executed an agreement of sale in favour of the appellant. Musammat Chhoti Begum, however, changed her mind and executed a sale-deed in favour of respondent No. 1 on August 14, 1953. The other three daughters, however, did not go back on the agreement entered into with the appellant and they got a sale-deed transferring their share registered in favour of the appellant on August 17, 1953. This sale was, however, actually registered in the books of the Sub-Registrar on October 6, 1953. 3. On September 9, 1953 the appellant filed a suit against respondent No. 2 (Chhoti Begum) for specific performance of her part of the agreement. Respondent No. 1 also filed on February 6, 1954 a suit for possession by pre-emption on the allegation that he had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above decision the sale sought to be pre-empted by respondent No. 1 could not be regarded as having been completed until October 8, 1953 when the sale deed was copied put in the books of the Sub-Registrar. The talab had been made according to the evidence which was accepted by the courts below on August 17, 1953, namely, the day on which the sale deed in favour of the appellant by the three daughters was got registered by the Sub Registrar, but the registration of which was not completed in the books of the Sub-Registrar till October 6, 1953. Mr. Chagla has contended strenuously that the only demand alleged to have been made was oh August 17, 1953 and the suit for pre-emption was bound to fail as being premature according to the ratio of the decision of this Court in Ram Saran Lall's MANU/SC/0280/1961 : [1962]2SCR474 case. 6. The difficulty in the way of the appellant is that a wholly new case is now being set up on his behalf by Mr. Chagla. In the plaint it was stated in para 14 that as soon as. the plaintiff came to know about the purchase of the property by defendant No. 1 he fulfilled the condition of the pre-emption according to Mahomadan Law and sent message to de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng done so at that stage. It must be remembered that the entire litigation had proceeded on the basis that the rules of Mohamodan Law relating not only to pre-emption but also to the point of time when the sale is completed were being applied by the courts. After the pronouncement in Ram Saran Lall's MANU/SC/0280/1961 : [1962]2SCR474 case it became settled that the necessary demands in a pre-emption suit had to be made after the sale had been completed not by execution or registration of the sale deed but by the sale deed having been copied out in the sub-Registrar's Books and it would be the date entered in that book which was to be considered as the date of sale. According to Mr. Chagla the demands on the evidence of the respondent himself, were made before the 6th of October 1953 and not afterwards.This was a question of fact which was never investigated by any of the courts. Even if the argument canvassed before us had been raised before the High Court that could have gone into the matter and considered the evidence on the record to find out when the demands were made. Our attention has been called to a registered notice having been served on the appellant by the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expected that a preemptor should keep a perpetual watch and go on making constant inquiries with regard to the point of tune when the office of the Sub-Registrar would copy out the sale deed in the prescribed book. However, that is a matter on which legislation may become necessary and that is for the Parliament to consider and not for us. 10. It would be abundantly clear from what has been stated above that the question of demand has not been examined by any of the courts keeping in view the law laid down by this Court and the principles to which reference has been made. Obviously it was the appellant who was to blame for not agitating these matters at least before the High Court. The point whether the demands made were premature or complied with the rules of Mahomedan Law could only be determined by reference to the entire evidence and is not a pure question of law. It is surprising that even in the petition for special leave to this Court the points which Mr. Chagla has raised were not canvassed. In the Statement of the Case only the matter was put in these words : Further, the respondent could not claim pre-emption as a co-sharer (Shafi-e-Sharik) he had not become owner o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
