Holding

The Supreme Court held that the High Court's factual findings were not perverse and that the plaintiffs had not waived their pre‑emptive right, thereby dismissing the appeal.

Summary

The plaintiffs, co‑sharers of a house in Jaipur, claimed a right of pre‑emption (shuf'a) under Muhammadan law when the co‑owners sold their share to Smt. Mattoo Devi. They alleged that they made the required "talab" (demand) upon learning of the sale but the trial court found no such demand and dismissed the suit. The first appellate court reversed that decision, holding that the plaintiffs had a valid pre‑emptive right, a view affirmed by the High Court. On appeal, the Supreme Court examined the three facets of talab (talab‑e‑muwathaba, talab‑e‑ishhad, and talab‑e‑tamlik) and the effect of the 1927 Jaipur notification, concluding that the factual findings of the High Court were not perverse and that the plaintiffs had not waived their right. Consequently, the Court dismissed the appeal, leaving the High Court’s judgment intact.

Issues considered

The nature and requirements of the three facets of talab under Muhammadan law for asserting a right of pre‑emption
Whether the plaintiffs waived their pre‑emptive right by expressing inability to purchase or by delay
The effect of the 7 April 1927 Jaipur notification on the customary procedure of making talab
Whether the High Court's factual findings can be interfered with under Article 136 of the Constitution
The character of the right of pre‑emption as a property right or a personal right

Subjects

Pre-emptionRight of pre-emptionTalabMuhammadan lawProperty lawWaiverNoticeRajasthan Pre-emption ActCivil appealEstoppelEquity

Judgment

·- SMT. MA TTOO DEVI
v.
A

DAMODAR LAL (DEAD) BY LRS. AND ORS.

JULY 18, 2001

[A.P. MISRA AND UMESH C. BANERJEE, JJ.] B

Mohammadan Law:

Immovable property-Sale of-Right of pre-emption-Ta/ab-Principle
of-Held : There are three facets of ta/ab; (i) talab-e-muwathaba, (ii) ta/ab- C
e-ishhad and (iii) talab-e-tamilik or talab-e-khusumat-The first implies a
demand, the second, reiteration of demand in the presence of witnesses and
the third, initiation of legal action-The owner of an immovable property
possesses a right of pre-emption (shuf'a) over immovable property that has
been sold to another person.
D
Practice and Procedure :

Finding of fact-lnte1ference with-Scope of-Held: Ought not to be
inte1fered with unless there is a total perverse view of the matter in issue.

Words and Phrases:
E

;'Talab-e muwathaba '", "talab-e ishhad", "talab-e tamlik ", "talab-e
khusumat" and "shuf'a "-Meaning of-In the context of Immovable property
under Mohammodan law.
F
The respondents-plaintiffs filed a suit for a declaration that 3/4th portion
of the suit property belonged to them and the sale to that extent in favour of
the appellant-defendant was null and void. The respondents also claimed that
they had a right of pre-emption as they were the co-sharers. The appellant
alleged that no 'talabs' were made by the respondents and that the respondent
showed their inability to purchase the property and thus they waived their G
right to pre-emption. The trial court dismissed the suit. The first appellate
court allowed the appeal, which was confirmed by the High Court. Hence this
appeal

Dismissing the appeal, the Court
1009
H
1310 SUPREME COURT REPORTS [2001] 3 S.C.R.

A HELD : 1.1. The principle of talab in Mohammadan Law has three
specific facets; the first being talab-e muwathaba. Talab in common parlance
· means and implies demand and talab-e muwathaba literally means 'the demand
of jumping'. The idea is of a person jumping from his seat, as though startled
In
by the news of the sale. talab-e muwathaba the pre-emptor must assert his
claim immediately on hearing of the sale though not before, and law stands
B well settled that any unreasonable delay will be constructed as an election not
to pre-empt. The second, being popularly known as the second demand, is
talab-e ishhad, which literally speaking means and implies the demand which
stands witnessed. The second demand thus must be in reference to the first .,._
demand and it is so done in the presence of two witnesses and also in the
C 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 principle and means initiation of legal action. It is, however, not always
necessary since it is available only when one enforces his right by initiatioq
of a civil suit - such an action is called talab-e tamilk or talab-e khusumat.
In this form oftalab the suit must be brought within one year of the purchaser
D taking possession of the property and a suit or claim for pre-emption must
relate to whole of the interest and not a part of the estate.
11011-F-H; 1012-A)

Wilson on Mohammadan L9w, referred to.

E 1.2. The right of pre-emption (shuPa) is the right, which the owner of . ,
an immovable property possesses to acquire by purchase of any immovable
property, which had been sold to another person. [1012-B]

Shri Audh Behari Singh v. Gajadhar Jaipuria, 11955) 1 SCR 70; Bishan
Singh v. Khazan Singh, 11959] SCR 878; Indira Bai v. Nand Kishore, AIR
F (1991) SC 1055; Dhaninath v. Budhu, 136 PR 1894; Gobind Dayal v. {

lnayatullah, (1885) ILR 7 All 775; Moo! Chandv. Ganga Jal, (1930) ILR 11
Lah 258; Radha Ballabh Haldiya v. Pushalal Agarwal, AIR (1986) Raj 88
· and Sheikh Kudratul/a v. Mohini Mohan 4 Beng., LR 134 (Cal), referred to.

Smt. Rajeshwari Devi v. Mukesh Chandra, (1966) SC Notes 403, cited.
G
2.1. The defendants 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. [1018-F)

H 2.2. The finding of fact arrived at upon consideration of the evidence on
SMT. MATTOO DEVI v. DAMODAR LAL [BANERJEE, J. J 1011
record ought not to be interfered with unless there is a total perverse view A
of the matter in issue. There is no such perversity so as to attribute the
judgment of the High Court, otherwise not sustainable. [1019-C]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5816 of
1994.
B
From the Judgment of Order dated 5.2.86 of the Rajasthan High Court
in S.B.C.S.A. No. 161of1975.

B.D. Sharma for the Appellant.

Ms. Madhurima Tatia and Indra Makwana for the Respondents. C
The Judgment of the Court was delivered by

BANERJEE, J. Whilst an appeal has been taken against the judgment
and decree passed by the learned Civil Judge, Jaipur in favour of Respondent
Nos. 1 & 2 on deposit of Rs. 4657 on the basis of the doctrine of Pre-emption D
in the court before a specified date and the High Court dismissed the appeal
on the ground of there being no material for interference with the finding of
the Civil Judge, Jaipur and a special leave petition was filed against the same
(being Civil Appeal No. 5816/1994 ), the learned Advocate in support of the
Appeal only restricted his submission on the issue of the principle of talab,
as is known in Muslim Law. E
The principle of talab in Muhammadan Law has three specific facets:
the first being talab-e muwathaba: Talab in common parlance means and
implies a demand and talab-e muwathaba literally means 'the demand of
jumping'. The idea is of a person jumping from his seat, as though startled
by news of the sale (See in this context Wilson on Mohammadan Law). In F
Talab-e-muwathaba the pre-emptor 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 not 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 G
demand 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 H
~-
I-

1012 SUPREME COURT REPORTS [200 I] 3 S.C.R.

A an action is called talab-e taml-k or talab-e khusnmat. In this form of Talab
the suit must be brought within one year of the purchaser taking possession ,oL

of the property and a suit or claim for pre-emption must relate to whole of
the interest and not a part of the estate.

Needless to record that right of pre-emption (shuf' a) is the right which
B . the owner of immovable property possesses to acquire by purchase of any
immovable property which had been sold to another person. Whereas the
High Courts at Bombay and Calcutta held that the right of pre-emption is a
right of re-purchase from the buyer and a mere personal right; the Allahabad "-
High Court held that it is an incidence of property. This Court, however, in
c the case of Shri Audh Behari Singh v. Gajadhar Jaipuria & Ors., [1955] l
SCR 70 has held that the right of pre-emption is an incidence of property and
attaches to the land itself. Detailing the judgments of the Calcutta High Court
in Sheikh Kudratulla v. Mahini Mohan, (4 Bengal Law Reporter 134) as also
the Allahabad and Patna High Courts view, this Court observed:

D "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 mis-
E
translation 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 exists
antecedently to the sale, the foundation of the right being the
avoidance of the inconveniences and disturbances which would arise
F 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. We do not, however,
desire to express any opinion on the view taken by the learned Judge
that the right of pre-emption partakes strongly of the character of an
easement in law. Analogie·s are not always helpful and evep. if there
G is resemblance between the two rights, the differences between them
are no less material. The correct legal position seems to be that the
law of pre-emption imposes a limitation or disability upon the ownership
of a property to the extent that it restricts the owner's unfettered right "
of sale and compels him to sell the property to his co-sharer or
H neighbour as the case may be. The person who is a co-shares in the

r
SMT. MATTOO DEVI v. DAMODAR LAL [BANERJEE, J.] 1013

land or owns lands in the vicinity consequently gets an advantage or A
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 with the
land and can be enforced by or against the owner of the land for the B
time being although the right of the pre-emptor does not amount to
an interest in the land itself. It may be stated here that if the right of
pre-emption had been 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 bonafide purchaser without
notice would certainly obtain an -absolute title to the property, C
unhampered by any right of the pre-emptor 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 crea~es a right I)
which attaches to the property and on that footing only it can be
enforced against the purchaser."

Before adverting to the contentions raised, though not strictly relevant,
the contextual facts ought to be noticed at this juncture for proper and
effective appreciation of the matter in issue. E

Briefly stated, the facts depict that defendants Nos. 2 and 4 has sold
their house situated in Gali Chaudharian Chowkri Bisheshswarji, to defendant
No. I on 30th July, 1962, for a sum of Rs. 4,499 by a registered sale deed. The
plaintiff, Damodar Lal (since deceased) and his son Satya Narain filed a suit
in the Court of Addi. MunsiffNo. 1, District Jaipur on 23rd July, 1963. The F
case of the plaintiff is that 3/4th portion of the house is owned and possessed
by them and defendant Nos. 2 to 4 sold their portion in the said house to
defendant No. I on 30th July, 1962. The plaintiffs claimed that they have a
right of pre-emption as they are co-sharers. It was further contended by the
plaintiffs that when they came to know of the sale on 12th September, 1962, G
they informed Matto Devi about their right of pre-emption and asked to sell
the property to them. But she paid no heed to it. It is also alleged in the plaint
that in the sale-deed, certain portions exclusively belonged to the plaintiffs.
The plaintiffs, therefore, sought declaration that certain portions of the property
belong to them and the sale to that extent in any event is null and void. The
appellant Smt. Matto Devi, being the vendee, however, denied the allegations, H
1014 SUPREME COURT REPORTS (2001] 3 S.C.R.

A though the character of the plaintiff as co-sharer was not denied. It was
alleged that no talabs were made by Damodar Lal and Satya Deo, the plaintiffs.
It was also alleged that an option to purchase the property was given to the
plaintiffs, but they did not avail of the same and as a matter of fact they
waived their right from enforcing the right of pre-emption. The records,
however, depict that the piaint was amended for making, an assertion that
B talabs were made on 12th November, 1962, in the presence of Kalyah and
Satya Narain witnesses; but the property was not sold to them. The learned
Munsiff, after trial held that the right or custom of pre-emption was prevalent
ii). the city of Jaipur and the plaintiff had a right to pre-empt. It was also held
\that the plaintiffs had !lb.own their inability to purchase the property and, ... .
C 1
thus, they hav,e waived their right. to pre-emption. The learned trial court also ...
held that the suit was not maint~inable 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 learned Additional Munsiff Magistrate No.1, Jaipur
D dated 12th January, 1973, an appeal was preferred before the learned District
Judge, which was transferred 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 a~d thus 9onsequently, the
plaintiffs' suit for pre~emption was decreed. with costs. The plaintiffs were
E directed to deposit in the trial court.a sum of Rs. 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 title 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
so paid, the suit shall stand dismissed. Aggrieved by the judgment and
F decree passed by the learned first appellate court, the second appeal ferred
by Smt. Matto Devi, however did not yield any benefit in favour of the
defendant and hence the petition before this Court.

As noticed above, the question pressed pertains to the issue of talab
G only and it is in that perspective, the effect of a notification dated 7th April,
1927 ought to be noticed.

Before, however, proceeding with the scope and effect of the notification,
it would be convenient to note the observations of Subba Rao, J. in Bishan
Singh & Ors. v. Khazan Singh & Anr., [1959] SCR 878 wherein the learned
H Judge relied upon the statement of law as given by Plowden, J in Dhan~nath
SMT. MATTOO DEVI v. DAMODAR LAL [BANERJEE, J.] 1015
v. Budhu, (136 PR 1894 at page 511) as below: A
"A preferential right to acquire land, belonging to another person
upon the occasion of a transfer by the latter, does not appear to me
to be either a right to or a right in that land. It is jus ad rem alien um
acquirendum and not a jus in re alien ........ A right to the offer of a
thing about to be sold is not identical with a right to the thing itself, B
and that is the primary right of the pre-emptor. The secondary right
is to follow the thing sold, when sold without the proper offer to the
pre-emptor, and to acquire it, if he thinks fit, in spite of the sale, made
in disregard of his preferential right."

On the basis of the aforesaid, Subba Rao, J, with his usual felicity of
c
expression observed that the general law of pre-emption does not recognise
any right to claim a share in the property sold when there are rival claimants
and pre-emption is a right to acquire the whole of the property sold in
preference to other persons. The learned Judge further relied upon the decision
in the case of Gobind Dayal v. Inayatullah, (1885 ILR 7 Allahabad 775) as D
also the decision of the Lahore High Court in the case of Moo/ Chand v.
Ganga Jal, (1930 ILR 11 Lahore 258) and summarised the law pertaining to
the right of pre-emption in the manner as below:

"(l) The right of pre-emption is not a right to the thing sold but a right
to the offer of a thing about to be sold. This right is called the primary E
or inherent right. (2) The pre-emptor has a secondary right or a
remedial right to follow the thing sold. (3) It is a right of substitution
but not of re-purchase, i.e., the pre-emptor takes the entire bargain
and steps into the shoes of the original vendee. (4) It is a right to
acquire the whole of the property sold and not a share of the property F
sold. (5) Preference being the 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."
G
In the recent past this Court in the decision of Indira Bai v. Nand
Kishore, AIR ( 1991) SC 1055 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
behaviour deficient in good faith. It operates a check on spurious H
1016 SUPREME COURT REPORTS [2001] 3 S.C.R.

A conduct by preventing the inducer 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-emptor not only came to know of the sale
B immediately but he assisted the purchaser-appellant in raising
construction which went on for five months. Having thus persuaded,
rather misled, the purchaser by his own conduct that he acquiesced
in his ownership he somersaulted to grab the property with
constructions by staking his own claim and attempting to unsettle the
c legal effect of his own. conduct by taking recourse to law to curb and
contro-1 such unwarranted conduct the Courts have extended the
. broad and paramount considerations of equity, to transactions and
assurances, express or implied to avoid injustice.
4. Legal approach of the High Court, thus that no estoppel could arise
D unless notice under Section 8 of the Rajasthan Pre-emption Act (in
brevity 'the Act') was given by the seller and pre-emptor should have
had occasion to pay or tender price ignores the fallacy that estoppel
need not be specifically provided as it can always be used as a
weapon of defence. In the Privy Council decision referred earlier, the
Court was concerned with Oudh Laws Act (18of1876) which too had
E an identical provision for giving notice by seller. No notice was given
but since pre-emptor knew that the property was for sale and he had
even obtained details of lots he was precluded from basing his claim
on pre-emption."

The notification noticed above seems to have, however, a definite
F impact in the matter in issue and as such the same is detailed hereinbelow
in extenso for ascertainment of its true effect. The notification reads as below:

"No.2155/J-I-148 - Dated Jaipur, the 7th April, 1927.

Whereas it is expedient to give all possible claimants fm;mal notice of
G a sale, with a view to facilitate their assertion of pre-emptive right
without recourse to litigation, the following rules have been passed
by the Council of State, and they shall come immediately into force:
1. When any person proposes to sell any property in respect of •
which any person have a right of pre-emption, he shall give
H notice to the persons concerned of (a) the property; and
SMT. MATTOO DEVI v. DAMODAR LAL [BANERJEE, J.] 1017
(b) the price at which he is willing to sell it. A
Such notice shall be given through the Court within the local limits
of whose jurisdiction the property or any party thereof is situate.

2. Any person having a right of pre-emption in respect of any
property proposed to be sold shall lose such right, unless within B
3 months from the date of service of such notice he or his agent
pays or tenders through 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):- C
(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 good faith."

Incidentally Rajasthan High Court in the case of Radha Ballabh Haldiya
D
& Ors. v. Pushalal Agarwal & Ors., AIR (1986) Rajasthan 88 upon reference
to the notification, answered the reference to 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 fo~lities of making talabs as unnecessary. While E
coming to the conclusion as above, the High Court in Radha Bal/ab 's decision
(supra) stated in paragraphs 69 and 75 of the Report as below:

"69. In our considered opinion, the procedure law and substantive law
though well defined concept in jurisprudence and there was no
watertight compartments for them created by any statute. If we have F
to make a correct statement of law, we must further mention in
unequivocal iaanner that the matter of substance in contradistinction
to the matters of form can be found both in substantive law and
procedural law and it would be fallacious to say that all which form
in the branch of substantive law are matter of substance and all which G
form in procedure law are matter of form. It all depends upon the
particular statute, its object, its formulation and the effect which is
desired to be achieved by the requirement of procedure. We do not
propose to deal with this point any further because in our considered,
opinion the substantive law and procedural law overlap each other
more often than not and the proposition of law laid down by us is so H
1018 SUPREME COURT REPORTS (2001] 3 S.C.R.

A patent and well known that it requires no examples, illustrations and
citation of decisions, any further.

75. We are of the opinion that this notification is a complete Code in
respect of right of pre-emption except that the concept of pre-emption
has been left to be deduced from the customary law of the parties and
B has not been mentioned in it. In other words, the right of pre~emtption,
as per the customary law is to be found in the customary law but once
the right of pre-emption exists either on account of vicinity or otherwise
then that right can be enforced only according to the requirement and
conditions laid down in this notification of 1927. It is true that 'talabs'
have not been distanced with in this notification. We are assuming for
c the purpose of this reference that the requirement of 'talabs' was
necessary under the customary Mohammedan Law before this
notification was issued and if there is any doubt on that point, i.e.
amply answered by th~ two judgments of the Supreme Court in Smt.
Rajeshwari Devi v. Mukesh Chandra, (1966) SC Notes 403) (supra)
D and Bhagirath Singh Shekhawat v. Ram Niwas Barit (ibid) later
being related to the Jaipur State itself."

Turning on to the contextual facts the main issue which fell for
consideration before the High Court has been as to whether the plaintiffs after
the execution of the agreement to sell, expressed their inability to purchase
E the house and after the execution of the sale deed, refused to purchase the
house for Rs. 4499 plus expenses for registration and, therefore, the plaintiffs
waived their right of pre-emption?

Obviously, the burden of the issue was upon the defendants and the
defendants were required to prove that the plaintiffs after execution of the
F agreement to sell, expressed their inability to purchase the property and also y
after execution of the sale-deed, refused to purchase the property for a sum
of Rs. 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
G 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 ho'use, or had refused to purchase the same. The defendants have
failed to prove their case that the plaintiffs after the execution of the
H agreement to sell expressed their inability to purchase the house and
SMT. MATTOO DEVI v. DAMODAR LAL [BANERJEE, J. J 1019
that after the execution of the sale-deed refused to purchase the A
house for a consideration of Rs. 4,499 plus expenses for registration.
Thus, the question of waiver of right of pre-emption by the pre-emptor
does not arise at all."

The learned Advocate appearing in support of the appeal very strongly
contended that the evidence on record does not lend any credence to the B
case of the Respondents herein and as such the High Court was. in gross error
in the matter in issue. Incidentally the finding of fact arrived at upon
consideration of the evidence on record ought not to be interfered with
unless there is a total perverse view of the matter in issue. On perusal of the
records, we do not find any such perversity so as to attribute the judgment C
of the High Court, otherwise not sustainable. In our view the High Court has
dealt with the issue in its proper perspective having due regard to the
language used in the notification and as such question of any interference
under Article 136 of the Constitution of India would not arise.

In that view of the matter this appeal fails and is dismissed without, D
however, any order as to costs.

v.s.s. Appeal dismissed.

.,.