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Case Number

Second Appeal No. 68 of 1955

Advocates

A.Razak

Judges

P.K Tare, J.

Acts

EVIDENCE ACT

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Smart Summary

Structured Summary of the Opinion — Second Appeal (Pre-emption under Mohammedan Law)

Factual and Procedural Background

The plaintiff filed a suit claiming a right of pre-emption under Mohammedan law in respect of a portion of a house that adjoined his portion and was divided by a common wall. The house originally belonged to Sheikh Magtumbux and had been partitioned among family members including Jan Mohammad, Umraobi, Mohammad Umar and Mst. Sofiabi.

The plaintiff alleged that the sale consideration was fictitious and inflated to defeat his right of pre-emption and asserted that the real consideration was Rs. 700/-. He averred that he had made the two demands required by Mohammedan law (Talab-i-Mowasibat and Talab-i-Isshad) and served a registered notice dated 30-5-1952 on the defendant, who did not reply.

The defendant's defence was that he had no knowledge of the plaintiff's pre-emptive right, that the sale deed and consideration were genuine, and that the plaintiff had not made the requisite two demands. The trial and appellate courts dismissed the plaintiff's claim for pre-emption: both courts rejected elements of the plaintiff's case on the two-demands point, and the appellate court additionally (though not pleaded) expressed doubt whether the right of pre-emption could be exercised post-Enactment of the Constitution in view of Article 19(1)(f).

Legal Issues Presented

Whether the plaintiff complied with the two-demands formalities required by Mohammedan law (Talab-i-Mowasibat and Talab-i-Isshad) so as to establish a right of pre-emption.
Whether the customary Mohammedan right of pre-emption can be exercised after the commencement of the Constitution of India, particularly in view of Article 19(1)(f) of the Constitution.

Arguments of the Parties

Appellant's (Plaintiff's) Arguments

The plaintiff asserted his status as a participator in the appendages and as owner of the adjoining portion, thus claiming a right of pre-emption under Mohammedan law.
He alleged the sale consideration was fictitious and inflated to defeat his right; the true consideration was Rs. 700/-.
He stated he made the two demands required by Mohammedan law: Talab-i-Mowasibat and Talab-i-Isshad, and served a registered notice dated 30-5-1952 on the defendant who did not reply.
Evidence included his own testimony and testimony of two witnesses (P.W.2 Abdul Hussain and P.W.3 Abdul Rahman Khan) describing making the first demand and immediately thereafter making the second demand, and that at the time of the second demand he mentioned the first demand in the presence of witnesses.

Respondent's (Defendant's) Arguments

The defendant contended that he had no knowledge of the plaintiff's pre-emptive right and that the sale deed and consideration were genuine and not fictitious.
He denied that the plaintiff had made the two requisite demands under Mohammedan law.
In deposition (D.W.1) the defendant attempted to suggest waiver by alleging the plaintiff was present during negotiations and measurements and never raised objection, but that waiver was not pleaded and was rejected by the trial Judge.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mubarak Husain v. Kaniz Bano (ILR 27 All 160)	Held that at the time of making Talab-i-Isshad it was necessary to mention the fact of having made Talab-i-Mowasibat previously, even if the witnesses to both demands were the same.	The appellate Judge relied on this decision to find the plaintiff had not complied with the formalities; the court under review discussed this authority but found the appellate Judge applied too exacting a standard.
Sadiq Ali v. Abdul (ILR 45 All 290 : AIR 1923 All 251)	Held that failure to mention the previous demand at the time of the second demand (Talab-i-Isshad) was fatal to a pre-emptor's claim.	The appellate Judge relied on this case along with Mubarak Husain; the present court contrasted subsequent authorities that permitted a more flexible approach.
Shivashankar Chhaganlal v. Laxman Chimanlal (ILR (1943) Bom 441 : AIR 1943 Bom 83)	Held it was not necessary that the first demand be made in the presence of witnesses; but the second demand must mention the first demand in the presence of at least two witnesses.	The court noted this decision as representing a less rigid standard than the Allahabad authorities and used it to show divergence in the case law.
Mst. Mahbooban v. Mst. Fatima Begum (AIR 1952 All 167)	Held that if the first demand was made in the presence of the vendor or vendee or on the premises and in presence of witnesses who heard it, it was not necessary to mention the first demand at the time of Talab-i-Isshad.	Referred to as authority supporting the position that formalities may be satisfied without literal adherence to the stricter formulation relied on by the appellate Judge.
Rujjub Ali v. Chundi Churn (ILR 17 Cal 543)	Full Bench authority relied upon by Mushtaq Ahmad J.; cited as foundational in the line of cases permitting a flexible approach.	Referred to by the court to support the view that a strict or doctrinaire approach is not required and that the appellate Judge failed to consider development in the law.
Sonaji v. Narhar (AIR 1952 Hyd 159)	Held similar to Mst. Mahbooban and stated presence of two witnesses was not necessary; after enactment of Evidence Acts, even a single witness at first or second demand could suffice; matter governed by Evidence Act rather than customary rule about number of witnesses.	Cited to justify that a single witness could be sufficient and to show the appellate Judge's standard was unnecessarily exacting.
Abdul Gaffar Khan v. Abdul Jikar (ILR 1954 Nag 407 : AIR 1954 Nag 113)	Held that two demands are required but the two demands could be combined in a single demand if all requirements for both Talabs were fulfilled.	The present court relied on this authority to reject the appellate Judge's view that the two talabs could not be combined when the plaintiff's evidence indicated the second demand immediately followed the first.
Abdul Ajij v. Khairunnisa Begum (ILR (1949) Nag 740 : AIR 1949 Nag 361)	Held that where all parties are Mohammedans, it is equitable to apply the Mohammedan law of pre-emption.	Cited in the Nagpur decisions to support application of Mohammedan pre-emption law; the present court noted this as part of the body of supporting authorities.
Audh Behari Singh v. Gajadhar Jaipuria (1955-1 SCR 70 : AIR 1954 SC 417)	Described the right of pre-emption as "a right attached to the property, which goes with the land concerned."	The court relied on this Supreme Court authority to support the proposition that customary pre-emption is a recognized property-related right and to justify not subjecting it to exclusion under Article 19(1)(f).
Lachmandas Kewalram v. State of Bombay (AIR 1952 SC 235)	Noted (by Patanjali Shastri C.J.) that a doctrinaire approach to constitutional interpretation should be avoided (observation cited for general guidance).	The court invoked this observation as general guidance in constitutional interpretation, while acknowledging it was a minority view on Article 14 in that case.

Court's Reasoning and Analysis

The court examined (1) the factual evidence of compliance with the two Talabs, (2) the relevant case law on the formalities and flexibility of those Talabs, and (3) the constitutional question whether Article 19(1)(f) bars the customary Mohammedan right of pre-emption.

On the factual question of the two formal demands, the court recited the plaintiff's evidence (P.W.1) and the testimony of P.W.2 and P.W.3. The plaintiff's account was that upon learning of the sale he made a first demand on the premises in the presence of his agent (P.W.2), then immediately fetched P.W.3 and made the second demand, and, in the presence of both witnesses, mentioned the earlier demand. The court found this to be clear proof of compliance with the two-talab formalities.

The court contrasted the appellate Judge's reliance on the early Allahabad decisions (which required explicit mention of the previous demand at the time of Talab-i-Isshad) with a body of later decisions from other High Courts (Bombay, All, Hyderabad, Nagpur) that took a more flexible view. Those later authorities held, in varying formulations, that:

the first demand need not be in the presence of witnesses if made to the vendor or on the premises;
the second demand need only be made in the presence of witnesses (and some authorities held a single witness could suffice post-Evidence Acts); and
the two demands could be combined or made in quick succession if the substantive requirements of both were satisfied.

The court concluded that the appellate Judge had applied an unduly exacting standard of proof, ignoring the development of case law (notably the Nagpur and Hyderabad authorities and the Full Bench view cited) and thereby required a higher burden than the law warrants. On the evidence presented, the court found that the plaintiff had complied with the talab formalities.

On the constitutional point, the court analysed Article 19(1)(f) together with Clause 5 of Article 19 and Article 13(3)(a) and Article 372 of the Constitution. It noted:

Clause 5 of Article 19 indicates the sub-clauses (including (f)) are subject to reasonable restrictions and do not affect existing law insofar as it imposes reasonable restrictions.
Article 13(3)(a) defines "law" to include custom or usage having the force of law.
Article 372 preserves existing law (which includes customary and personal law) as in force before the Constitution.

The court therefore held that customary rights and personal law (including Mohammedan pre-emption) were saved by Article 372 and would only be invalidated if they failed the test of reasonableness under Article 19(5). The court saw nothing unreasonable in the customary right of pre-emption and observed that similar pre-emptive protections exist in statutory law (e.g., in respect of agricultural holdings). The court relied on the Supreme Court decision in Audh Behari Singh v. Gajadhar Jaipuria to support the characterization of pre-emption as a right attached to property.

Combining these strands, the court concluded that Article 19(1)(f) did not bar the customary Mohammedan right of pre-emption and that the plaintiff had proved compliance with the required talabs. The appellate Judge's additional constitutional doubt and the factual conclusion on the talabs were therefore set aside.

Holding and Implications

Core Ruling: THE APPEAL SUCCEEDS AND IS ALLOWED; THE JUDGMENTS AND DECREES OF THE COURTS BELOW ARE SET ASIDE.

Direct consequences for the parties (as ordered by the court):

The plaintiff's claim for pre-emption is decreed on condition of deposit of Rs. 700/- (minus the costs awarded) within two months in the trial court; in default the appeal shall stand dismissed with costs throughout.
The appellant (plaintiff) is awarded half of the costs incurred in the present appeal and in the appeal before the lower appellate court, and full costs of the trial court.
Counsel's fee of Rs. 60/- is allowed if certified.

Broader implications identified by the court:

The court held that the customary Mohammedan right of pre-emption survives the Constitution and is not automatically barred by Article 19(1)(f); it survives subject to the general constitutional framework (i.e., it must satisfy the test of reasonable restriction where applicable).
The decision rejects a doctrinaire or overly literal approach to the talab formalities, endorsing instead the view from later authorities that allows a flexible, evidence-driven assessment (including acceptance that the two demands may be made in quick succession and that, under the Evidence Acts, even a single witness may suffice in some circumstances).
No new constitutional principle was announced beyond applying existing constitutional provisions (Articles 13, 19 and 372) and relevant precedents to hold that customary pre-emption is not foreclosed by Article 19(1)(f).

This summary is prepared strictly from the content of the supplied opinion and does not add or infer information beyond that text.

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Mohammad Umar v. Amir Mohammad

1. This second appeal has been filed by the plaintiff, whose suit for pre-emption according to Mohammedan law was dismissed by both the courts below.

The house originally belonged to Sheikh Magtumbux. It was partitioned in a family partition between Jan Mohammad, Umraobi, Mohammad Umar and Mst. Sofiabi. The plaintiff as a participator in the appendages and as the owner of the adjoining portion of the house (which is divided by a common wall) claimed the right of pre-emption. It was also alleged that the consideration was fictitious and inflated with a view to defeat the plaintiffs right. The real consideration was alleged to be Rs. 700/-. The plaintiff also averred that he had made two demands as required by the Mohammadan Law (namely, Talab-i-Isshad and Talab-i-Mowasibat). He had also served a registered notice dated 30-5-1952 upon the defendant claiming pre-emption. The defendant did not reply to the notice.

3. The defence was that the defendant had no knowledge about the plaintiffs right. The sale deed was not fictitious nor was the consideration inflated. It was further averred that the plaintiff had not made Talab-i-Mowasibat and Talab-i-Isshad.

4. The lower courts upheld all the contentions of the plaintiff, but held against him on the question of the two demands required by the Mohammadan law. Therefore, the suit was dismissed. Although the point was not raised in the pleadings, the learned appellate Judge also held that it was doubtful if such a right of pre-emption could be exercised after the enactment of the Constitution of India 1950 in view of Article 19(1)(f) of the Constitution. The learned appellate Judge, relying on the cases of of Mubarak Husain v. Kaniz Bano, ILR 27 All 16ft (A) and Sadiq Ali v. Abdul, ILR 45 All 290: (AIR 1923 All 251) (B) held that the plaintiff had failed to prove that he had made the two demands as required by the 'Hedaya.'

5. As regards the law on the subject of preemption, the learned author, Sir D.F. Mulla has dealt with the topic in his book -- 'Principles of Mahomedan Law' 14th (1955) Edition, Section 238 -- page 221, In the case of Mubarak Husain v. Kaniz Bano (A) (supra) a Division Bench of the Allahabad High Court held that at the time of making the Talab-i-Isshad it was absolutely necessary to mention the fact of having made the Talab-i-Mowasibat previously, although the witnesses to the two demands may be the same.

In the case of ILR 45 All 290: (AIR 1923 All 251) (B) another Division Bench of the same High Court held that the failure to mention the previous demand (Talab-i-Mowasibat) at the time of making the second demand (Talab-i-Isshad) was fatal to a pre-emptor's claim. In the case of Shivashankar Chhaganlal v. Laxman Chimanlal, ILR (1943) Bom 441: (AIR 1943 Bom 83) (C), a Division Bench of the Bombay High Court held that it was not necessary that a pre-emptor should make the first demand in the presence of witnesses. The only requirement was that after knowing of the sale, the pre-emptor should make first demand at the earliest opportunity, but at the time of making the second demand, he should mention the fact of the first demand having been made, in the presence of at least two witnesses. In the case of Mst. Mahbooban v. Mst. Fatima Begum, AIR 1952 All 167 (D), Mushtaq Ahmad J. held that if the first demand be made in the presence of the vendor or the vendee, or on the premises sold and in the presence of witnesses, who heard the demand, it was not necessary to mention the fact of the first demand at the time of the Talab-i-Isshad.

The learned Judge based his view upon the Full Bench case of Rujjub Ali v. Chundi Churn, ILR 17 Cal 543 (E). A Division Bench of the Hyderabad High Court in the case of Sonaji v. Narhar, AIR 1952 Hyd 159 (F), expressed the same view as Mushtaq Ahmad J. and further held that the presence of two witnesses was not necessary. The learned Judges opined that after the passing of the Indian Evidence Act and the Hyderabad Evidence Act, even the presence of a single witness at the first or the second demand, as the case may be, would be sufficient. They held that the matter would not be governed by the customary Mohammedan Law, but by the provisions of the Evidence Act.

In the case of Abdul Gaffar Khan v. Abdul Jikar, ILR 1954 Nag 407: (AIR 1954 Nag 113) (G), the late Rao J. held that for a pre-empter to succeed, he had to make two demands as required by the law, but the two demands could be combined in a single demand, if all the requirements for both (he Talabs were fulfilled. The learned Judge on the authority of Abdul Ajij v. Khairunnisa Begum, ILR (1949) Nag 740 : (AIR 1949 Nag 361) (H), held that where all the parties are Mohammedans, it would not be inequitable to apply the Mohammedan law of preemption. As regards the question about tenability of a claim of pre-emption under the Muslim law in view of Article 19(1)(f) of the Constitution the learned Judge did not think it necessary to pronounce his decision, as it was not necessary. In that case the plaintiff appellant's claim was dismissed, as he had not complied with the formalities of the two demands.

6. Therefore, in the light of the case law referred to above, we have to see if the formalities of the two Talabs were complied with in the present case. The learned appellate Judge, referring to the case of ILR (1954) Nag 407: (AIR 1954 Nag 113) (G), observed that according to the plaintiff, he (pre-emptor) had made the second demand within a few minutes of the first demand.

Therefore the learned Judge failed to see bow the plaintiff could combine the two talabs in one. So the first appellate Court decided to apply an exacting standard by applying "The normal law of two talabs and not the exception". It was in this light that the appellate Judge came to the conclusion that the formalities of the two talabs were not strictly complied with. I may only remark that the first appellate Court, without applying his mind to the development of the case law, which the late Rao J. has elaborately discussed, required a much higher standard of proof from the plaintiff than was warranted by the law and also applied an exacting standard more than was warranted by the cases referred to above.

7. The plaintiff's case, as pleaded and brought out in the evidence was a simple one. On learning of the sale, he went to the premises and made a demand from the vendor and the vendee in the presence of P.W. 2 Abdul Hussain, his agent. Immediately after, he went out and fetched P.W. 3 Abdul Rahman Khan and made the second demand in the presence of the two witnesses. The learned Judge, being of the opinion that the two demands could not be combined in one, field that the formalities as laid down by the cases of ILR 27 All 160 (A) and ILR 45 All 290: (AIR 1923 All 251) (B) had not been complied with.

I fail to see why the second demand could not be made immediately after the first demand. The presence of witnesses is not necessary if the demand be made to the vendor or the vendee or on the premises. The witnesses would be necessary for the second demand only. According to the Hyderabad High Court, even a single witness would be sufficient. The learned appellate Judge was clearly in error in concluding that the plaintiff had failed to mention the fact of the first demand at the time of making the second demand. This is what the plaintiff as P.W. 1 said :

On 13-5-1952 at about 3 or 4 O'clock I learnt that the defendant had purchased a part of the house. I saw the defendant and Gulam Mohammad taking measurements of the sites. I told them that I shall purchase the portion ....... On going out I saw Abdul Rahman going. I took him on the spot and in the presence of Abdul Rahman and my agent Abdul Hussain, I again made a demand. In the presence of both the witnesses I mentioned the fact of my first demand.

This is what Abdul Hussain P.W. 2 said :

"I went with the plaintiff on the spot. Gulam Mohammad and Amir Mohammad were taking measurements. The plaintiff said that he was prepared to purchase. ............. After some time Abdul Rahman arrived. The plaintiff again repeated his demand."

This is what Abdul Rahman P.W. 3 stated :

The plaintiff said that he was prepared to purchase. ........... The plaintiff also said that before my (witness's) arrival he had made a demand. But Amir Mohammad and Gulam Mohammad are not amenable

8. I think, no clearer proof about compliance with the formalities of the two talabs could have been given. It is obvious that the learned Judge, influenced by his observations wanted a more exacting standard of proof than was warranted by the provisions of the law. It was on that account that the appellate Judge disposed of the appeal without even a notice to the other side.

It would be interesting to see the conduct of the defendant. He did not reply to the plaintiff's notice dated 30-5-1952. In his deposition as D.W. 1, he tried to make out a new case of waiver by alleging that the plaintiff was present at the time o£ negotiations, and at the time of taking measurements, but ho never raised any objection. The learned trial Judge correctly overruled that part of the evidence relating to waiver, which was never pleaded. The defendant has mentioned an inflated consideration in the sale deed with a view to encumber the plaintiff's right of pre-emption. It was clear that the defendant was out to defeat the plaintiff's right by any means, fair or unfair.

9. As regards the learned appellate Judge's view that the customary right of pre-emption cannot be exercised in view of Article 19(1)(f) of the Constitution, I am of the opinion that rights conferred by usage or custom are not at all affected by the enactment of the present Constitution. The said Article has to be read along with Clause 5 of the said Article, which is as follows :

"Nothing in Sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses cither in the interests of the general public or for the protection of the interests of any Scheduled Tribe."

It is, therefore, clear that the fundamental rights guaranteed by Article 19(1)(f) are subject to reasonable restrictions and that it is not an absolute right. Article 13(3)(a) defines 'law' thus :

" law' includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage haying in the territory of India the force of law."

Article 372 of the Constitution provides for continuance of the existing law, as was in force immediately preceding the enactment of the Constitution. Thus all customary law including the personal law was saved by Article 372 of the Constitution. Any custom or usage having the force of law can only be declared void as per Article 13(1) if it does not comply with the test of reasonableness laid by Article 19(5). If the personal law applicable to persons of all religious faiths, of all sects, and of all colours and races does not stand abrogated by the new Constitution, it would be futile to single out the Muslim customary law of pre-emption and put it to the test of reasonableness. Even on the question of reasonableness, I am unable to sec anything unreasonable, as customary law of pre-emption is prevalent in Punjab as also in other States there is a statutory law of preemption in respect of agricultural holdings. As laid down by their Lordships of the Supreme Court, in the case of Audh Behari Singh v. Gajadhar Jaipuria, 11955-1 SCR 70: (AIR 1954 SC 417) (I), it is a right attached to the property, which goes with the land concerned. If rights in property could be circumscribed from ownership to tenancies, sub-tenancies and annual leases, the right of pre-emption could as well be another type of such circumspection. At least I am unable to see anything unreasonable in the exercise of the customary right of pre-emption. 12, therefore, hold that Article 19(1) is no bar to the customary right of pre-emption exercisable under the Mohammadan law. I may only remark that as observed by his Lordship of the Supreme Court, Patanjali Shastri C. J. in the case of Lachmandas Kewalram v. State of Bombay, AIR 1952 SC 235 (J), a doctrinnaire approach in this matter ought to be avoided. I am aware of the fact that the judgment of his Lordship was a minority judgment, so far as interpretation of Article 14 of the Constitution is concerned and that the law declared is the majority view of their Lordships. But I wish to rely on the said observation, as a general proposition for guidance in the matter of constitutional interpretations.

10. For the reasons aforesaid, the judgments and decrees of the Courts below cannot be upheld.

They are consequently set aside. The present appeal succeeds and is allowed. The plaintiff appellant's claim for pre-emption upon deposit of Rs. 700/-

minus the costs awarded within 2 months from today in the trial Court, is decreed. In default, the appeal shall stand dismissed with costs throughout. The appellant shall be entitled to half of the costs incurred in the present appeal, and the appeal before the lower appellate Court. However, he shall be entitled to full costs of the trial Court. Counsel's fee Rs. 60/-

if certified.

Mohammad Umar v. Amir Mohammad

Structured Summary of the Opinion — Second Appeal (Pre-emption under Mohammedan Law)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's (Plaintiff's) Arguments

Respondent's (Defendant's) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Mohammad Umar v. Amir Mohammad

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