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TMI Blog2001 (7) TMI 1317X X X X Extracts X X X X X X X X Extracts X X X X ..... a person jumping from his seat, as though started by news of the sale (See in this context Wilson on Mohammadan Law). In Talab-e-muwathaba the preemptor must assert his claim immediately on hearing of sale though not before and law stands well settled that any unreasonable delay will be construed as an election nor to pre-empt. The second, being popularly known as the Second Demand. is talab-e ishhad, which literally speaking mean and imply the demand which stands witnessed. The second demands thus must be in reference to the first demand and it is so done in the presence of two witnesses and also in the presence of either the vendor (if he is in possession) or the purchaser and the Third Demand though not strictly a demand but comes within the purview of the Principal and means initiation of legal action. It is however not always necessary since it is available only when one enforces his right by initiation of a civil suit- such an action is called talab-e tamlik or talab-e khusumar. In this form of Talab the suit must be brought within one year of the purchaser taking possession of the property and a suit or claim for preemption must relate to whole of the interest and not a part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neighbour as the case may be. The person who is a co-shares 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 the land and can be enforced by or against the owner of the land for the time being although the right of the preemptor does not amount to an interest in the land itself. It may be stated here that if the right of pre-emption had only a personal right enforceable against the vendee and there was no infirmity in the title of the owner restricting his right of sale in a certain manner a benefit purchaser without notice would certainly obtain an absolute title to the property, unhampered by any right of the preemptor and in such circumstances there could be no justification for enforcing the right of pre-emption against the purchaser on grounds of justice, equity and good conscience on which grounds alone the right could be enforced at the present day. In our opinion the law of pre-emption cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the suit was not maintainable as it was for partial pre-emption and as regards talabs it was the finding of the learned trial court that no talabs were made by the plaintiffs. Consequently, the suit of the plaintiffs was dismissed by the learned Munsiff. Being aggrieved by the judgment and decree passed by the learn Additional Munsiff Magistrate No. 1, Jaipur dated 12th dated 12th January, 1973, an appeal was preferred to the Court of the learned Civil Judge, Jaipur. The learned first appellate Court allowed the appeal setting aside the judgment and decree passed by the learned trial court and thus consequently, the plaintiffs' suit for pre-emption was decreed with costs. The plaintiffs were directed to deposit in the trial court a sum of ₹ 4667/- on or before 18th April, 1975, and it was directed that on payment of such amount in the court, Smt. Matto Devi, defendant No. 1, shall deliver possession of the property to the plaintiffs whose titled to the property shall be deemed to have accrued from the date of such payment. It was also directed that if the said amount is not (sic) paid, the suit shall stand dismissed. Aggrieved by the judgment and decree passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quire the whole of the property sold and not a share of the property sold. (5) Preference being essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place. (6) The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place. 9. In the recent past this Court in the decision of Indira Bai v. Nand Kishore AIR1991SC1055 while dealing with the issue of estoppel and the rule of equity stated as below: 3. Estoppel is a rule of equity flowing out of fairness striking on behavior deficient in good faith. It operates a check on spurious conduct by preventing the inducers from taking advantage and assailing forfeiture already accomplished. It is invoked and applied to aid the law in administration of justice. But for it great many injustice may have been perpetrated. Present case is a glaring example of it. True no notice was given by the seller but the trial Court and the appellate Court concurred that the pre-emptier not only came to know of the sale immediately but he assisted the purchaser-appellant i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough the Court the price aforesaid to the person so proposing to sell. 3. Any person entitled to a right of pre-emption may bring a suit to enforce such right on any of the following grounds (namely):- (a) that no due notice was given as required by Rule 1; (b) that tender was made under Rule 2 and refused: (c) that the price stated in the notice was not fixed in goods faith: 11. Incidentally Rajasthan High Court in the case of Radha Ballabh Haldiya Ors. v. Pushalal Agarwal Ors. upon reference to the notification, answered the reference or the effect that the notification dated 7th April, 1927 as published in the Jaipur Gazette dated 15th April, 1927, in fact, modified the customary right of pre-emption prevailing to the former Jaipur State and made the formalities of making talabs as unnecessary. While coming to the conclusion as above, the High Court in Radha Ballab's decision (supra) stated in paragraphs 69 and 75 of the Report as below: 69. In our considered opinion, the procedure law and substantive low though well defined concept in jurisprudence and there was no watertight compartments for them created by any statute. If we have to make a correct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the defendants and the defendant were required to prove that the plaintiffs after execution of the agreement to sell, expressed their inability to purchase the property and also after execution of the sale-deed, refused to purchase the property for a sum of ₹ 4,499/-. The High Court upon consideration of the evidence came to the conclusion as below: I have myself gone into the entire evidence and my conclusion is that the finding arrived at by the learned first appellate Court is clear and based on evidence that there was no evidence before the learned Munsiff to hold that the plaintiffs showed their inability to purchase the house, or had refused to purchase the same. The defendants have failed to prove their case that the plaintiffs after the execution of the agreement to sell expressed their inability to purchase the house and that after the execution of the sale-deed refused to purchase the house for a consideration of ₹ 4,499/- plus expenses for registration. Thus, the question of waiver of right of pre-emption by the preemptor does not arise at all. 14. The learned Advocate appearing in support of the appeal very strongly contended that the evidence on r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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