BHAGWAN SAHAI Vs. SATYA NARAIN

JUDGEMENT

(1.) AS both these appeals arise out of the same judgment and decree passed by the learned District Judge, Jaipur District, Jaipur dated November 18, 1969, they have been taken up together for hearing and are disposed of by a common judgment.

(2.) THE only question which arises in these appeals is as to whether a suit for pre-emption could not be filed because the pre-emptor failed to make the customary Talabs.

(3.) HOWEVER, the position was made clear by a notification No. 2155/J-1-148 dated April 7, 1927 which was issued by the then Government of Jaipur and which runs as under:- "Whereas it is expedient to give all possible claimants formal notice of 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 persons have a right of pre-emption, he shall give notice to the persons concerned of (a) the property; and (b) the price at which he is willing to sell it. Such notice shall be given through the Court within the local limits of whose jurisdiction the property or any part 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 three months from the date of service such notice he or his agent pays or tenders through the court the price aforesaid to the persons 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 service 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." Even it the decision of the Jaipur Chief Court in Mst. Mathura's case (3) may not be taken in to consideration then on account of the aforesaid notification dated April 7, 1927 the customary right of pre-emption founded on Mohammedan Law stood modified by law, so far as the area comprised in the former State of Jaipur was concerned. The notification makes it amply clear that the right of pre-emption would be enforced by bringing a suit in the conditions specified in clause 3 thereof, irrespective of the fact whether Talabs were made or not. The aforesaid notification required that the person who proposed to sell the property, in respect of which any other person may have a right of pre-emption, should give a notice of bis intention to sell the property to the possible pre-emptor through the court which had jurisdiction over the locality in which the property or any part thereof was situated. The person who has the right of pre-emption then had the option either to make payment of or tender the price for which the property was proposed to be sold through the Court within a period of three months from the date of the service of such notice or he could contest that the price stated in the notice was exorbitant and was not fixed in good faith or he could refuse to make such payment of the price. In the first case, if the proposed sale price was paid to the vendor or tendered through the court then the vendor would have to sell the property to the pre-emptor for the proposed price. If the price claimed in the notice was contested to be exorbitant and not fixed in good faith, then the pre-emptor could bring a suit for enforcing his right of pre-emption. In case the person, to whom such a notice was given by the vendor, failed to make payment of or tender the proposed price within a period of three months through the court and did not contest the proposed price as exorbitant or in bad faith, then such a person completely lost his right of pre-emption in respect of the proposed sale. If the right was lost, as specified in clause (2) of the aforesaid notification, then after the sale was completed, such a right could not be renewed merely by making Talabs. If on the other hand the amount was paid or tendered through the court by the pre-emptor, on receipt of the notice, then no action for enforcement of right of pre-emption would be necessary, as the vendor would sell the property to the pre emptor on making payment of or tendering the amount, as that would amount acceptance of the offer and the contract would become complete. But in case no notice is given by the vendor to the person who could assert a right of pre-emption in respect of the proposed sale, as required by clause (1) of the aforesaid notification, the pre-emptor could enforce the right of pre-emption by filing a suit and the said right could not be denied or defeated on the ground that talabs were not made according to Mohammedan Law.