MATTOO DEVI Vs. DAMODAR LAL

JUDGEMENT

(1.) Whilst an appeal has been taken against the judgment and decree passed by the learned Civil Judge, Jaipur in favour of Respondent Nos. 1 and 2 on deposit of Rs. 4657/- on the basis of the doctrine of Pre-emption 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.

(2.) 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 Talab-emuwathaba 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 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 leagal 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-eKhusumat. 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 pre-emption must relate to whole of the interest and not a part of the estate.

(3.) Needless to record that right of preemption (shuf'a) is the right which the owner of immovable property possessess to acquire by purchase of any immovable property 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 personal right; the Allahabad High Court held that it is an incidence of property. This Court, however, in the case of Audh Behari Singh v. Gajadhar Jaipuria (1955) 1 SCR 70 : (AIR 1954 SC 417) 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 (1870) 4 Beng LR 134 as also the Allahabad and Patna High Courts view, this Court observed : (at.p. 422 of AIR)