MAHFOOZ ALI KHAN Vs. MOHAMMED AHSAN

JUDGEMENT

(1.) This is a plaintiffs' second appeal in a suit for pre-emption. The trial court decreed the suit but the lower appellate court dismissed it on the grounds, firstly that the law of pre-emption entitling a Shafi Khalit to pre-empt the sale of property on which he exercised certain rights of easement, is void for placing an unreasonable restriction on the fundamental right to property guaranteed under Article 19 (1) (f) of the Constitution; and secondly on the ground that the first demand, Talab Mowasibat required to be made by Mohammedan Law, immediately on comming to know of the completion of the sale had in the present case been made before the completion of the sale, and was, therefore, invalid. Mr. Banarsi Das, learned counsel for the appellants has questioned the correctness of the decision of the lower appellate court on both the said grounds.

(2.) The decision of the lower appellate court on the first point is based on a Full Bench decision of this Court in Jagdish Saran v. Brij Raj Kishore (1972 All LJ 413). It was held in that case that the plaintiff was not entitled to sue for pre-emption of a sale either on the basis of his right to rest his beams on the wall of the shops sold, or on the basis of his right to flow rain water through the common spot for "a customary right of preemption" based simply on an easementary right, is void for placing an unreasonable restriction on the fundamenal rights guaranteed by Article 19 (1) (f) of the Constitution. Mr. Banarsi Das did not question the correctness of the decision but urged that the right held to be void in that case was the customary right of pre-emption and not the personal law right of Muslims arising to them under the Muslim Law. Now, the right of pre-emption as a Shafi-I-Khalit was a legacy of the Muslim Law. The right of pre-emption is a right arising from and relating to ownership of immovable property. It was applied independently of the religious status of owners of land of im-moveable property wherever the Muslim Law of pre-emption had through passage of time become the customary law of the local area where the land or the immovable property was situated. A reference may be made to the Supreme Court's decision in Audh Bihari Singh v. Gajadhar (AIR 1954 SC 417) wherein it was held that the right of pre-emption is an incident annexed to the property or a right attaching to the ownership of the property. The provisions of the Constitution are overriding even as Muslim Law relating to property, it could not be applied in derogation of the provision of the Constitution.

(3.) In Ram Saran Lal v. Mst. Domini Kuer (AIR 1961 SC 1747), the Supreme Court held that the provisions of the Transfer of Property Act supersede the principles of Mohammedan Law as to sale and it is to the statute that in the Transfer of Property Act that one should look to find out whether, and if so when, a sale is complete in order to give rise to a right of pre-emption, and since under Section 54 of that Act sale of tangible immovable property of the value of Rs. 100/and upwords, can be made only by a registered instrument, and the registration is not complete under the Registration Act until the document of sale has been copied out in the records of the Registration Office, under Section 61 of that Act, notwithstanding the provisions of Section 47 of the Registration Act that a registered instrument dates back, on its registration, to the date of its execution, the sale is not complete until the. completion of registration and, therefore, the provisions of Mohammedam Law that a sale is complete on delivery of the property must give, way to the statutory provisions governing the sale of immovable property. This decision of the Supreme Court is sufficient to dispose of both the points involved in the case. The first demand of Talabi Mowasibat under the Muslim Law must be made immediately on the completion of the sale but the sale must be deemed to be complete when the registration of the instrument of sale is complete, therefore, any demand made before the completion of the registration is invalid. At the same time if the provisions of the T. P. Act and the Registration Act can displace the provisions of the Mohammedan Law as to completion of sale of immovable property, it stands to reason that the provisions of Muslim Law as to preemption must necessarily be held to be unconstitutional if they violate the fundamental right to property guaranteed under Article 19 (1) (f) of the Constitution. This position has been settled beyond controversy by the decision of the Supreme Court in Bhanu Ram v. Baij Nath Singh (AIR 1962 SC 1476), which has been applied in Jagdish Satan's case by the Full Bench of our Court.