Kheyali Prosad v. Mullick Nazarul Alum

Mullick, J.:— The Plaintiff, the pre-emptor, is a Hindu. The first, party Defendants are the vendees and-Defendant No. 4 the second party Defendant is the vendor. The Plaintiff sues to enforce his right of pre-emption in an estate of which he and the Defendant No. 4 are co-sharers and in which Defendant No. 4 has sold his share to the first party Defendants.

That the Plaintiff, though a Hindu, is entitled to pre-empt has not been disputed. The learned District Judge finds that the sale was complete under the Muhammadan law on the 14th of July 1911 on which day the kobala was executed. The Plaintiff's story is that he came to hear of the sale at 6 A.M on the 17th of July 1911, and that he immediately performed the talabi mawasibat; that he then went with the witnesses to the houses of the vendee and the vendor, and also to the land sold and performed the talabi ishtishad: and that about 3 P.M he went to the Registry Office and put in a petition before the Sub-Registrar praying that the registration of the sale deed might be stayed. The learned District Judge does not find when the Plaintiff came to know of the sale, but he finds as a fact that the Plaintiff never made either the talabi mawasibat or the talabi ishtishad, and disagreeing with the Subordinate Judge he has dismissed the suit. Hence this second appeal by the Plaintiff.

The contention of the learned Vakil for the Appellant is that the sale was not complete till registration of the sale deed and that the petition made to the Registrar constitutes a sufficient performance of both demands.

Now under sec. 37, Act XII, 1887, it is clear that there being no special custom pleaded the case must be tried on the principles of justice, equity and good conscience. According to the Allahabad High Court these principles require that not only the Muhammadan law of pre-emption should be applied but also the Muhammadan law of sale which has confessedly been altered by sec. 54 of the Transfer of Property Act. Therefore it has been held by that Court that the right of pre-emption arises as soon as there has been a complete sale by unconditional offer and acceptance, and that if consideration has been paid and possession transferred, registration of the sale-deed is not necessary; at all events if the formality was intentionally omitted in order to defeat pre-emption and if the circumstances are such that the purchaser could have obtained the legal ownership by means of a suit for specific performance, Najmunnessa v. Ajaib Ali Khan, Janki v. Girjadat (Mahmud, J., dissenting) and Begum v. Muhammed Yakub (Banerji, J., dissenting).

The Calcutta High Court, have, however, expressed doubts as to the soundness of these decisions. In Jadu Lal v. Janki Koer, though not definitely deciding whether the sale became complete on the execution of the sale-deed or upon registration, a Bench of two Judges of that Court were of opinion that there were difficulties in applying the Muhammadan law of sale strictly and that the real solution depended in each case on the intention of the parties. The objection to this test is that it seems unequitable that the rights of the pre-emptor should depend on his ability to discover what the vendor and vendee had in their minds at the time of the execution of a conveyance to which he was not a party.

In Budhai v. Sonaullah, however, Carnduff, J., expressed a more decided view. He was of opinion that sec. 54, Transfer of Property Act, had abrogated the Muhammadan law of sale, and that the pre-emption right did not accrue till after registration. He dissented from the decision of the Allahabad Court in Janki's and Begam's cases so far as they decided that the Muhammadan law of sale should be strictly applied. In the case before him there was neither payment of consideration nor delivery of possession till registration and he was satisfied that it was in accord with the spirit of the Muhammadan law to hold that the sale became complete for the purposes or pre-emption only upon registration. In the same case Richardson, J., while agreeing with the decree of Carnduff, J., expressed the view that the application of the Muhammadan law of sale presented great if not insuperable difficulties and he was inclined to accept the test suggested by Brett, J., in Jadulal's case with the addition that the intention of the parties must be manifested in some unequivocal way such as delivery of possession or registration.

Adopting the reasoning of Carnduff, J., and of Sir Roland Wilson at page 412 of the 4th Edition of his ‘Digest of Anglo-Muhammadan law,’ I would hold that as the sale is not complete till legal ownership passes, no matter whether there has been payment and delivery, the pre-emptor's title in the case of a property worth more than Rs. 100 does not accrue till after registration. It seems to me that it would be against equity, justice and good conscience to apply in the case before us the Muhammadan law of sale which is no longer in force and to attach to a mere contract for sale an incident which the Muhammadan lawyers intended to attach only to an actual sale.

Turning now to the facts before us it would seem from the pleadings that the parties were agreed that payment of consideration and delivery of possession had taken place before the 17th July, which was the date of registration. The case made by the Plaintiff in the Court of first instance was that the sale was complete on the 14th July and that he performed the talabi mawasibat as soon as he learnt of the sale at 6 A.M oil the 17th July in the shop of a sweet seller. That case has been found to be false.

The learned Vakil for the appellant cannot challenge that finding but he now makes a new case. He contends that as the sale only became complete upon registration the petition which the Plaintiff made in person to the Sub-Registrar was a sufficient compliance with the law in the matter of the performance of the talabi mawasibat and talabi ishtishad.

Now what is that petition? It does not make any reference to the talabi mawasibat. No doubt the two formalities can be combined, but it is essential that the talabi ishtishad should refer expressly to the talabi mawasibat as having been duly made. This the Plaintiff did not do. There is not a word in the petition about any talabi mawasibat. I cannot admit that the petition complies with the requirements of the Muhammadan law in the matter of the two talabis, although it was made in the presence of witnesses and in the presence of the vendor. That being so, the Plaintiff has no right to pre-empt and the suit has been rightly dismissed.

Roe, J.:— I agree that the appeal should be dismissed. In my view there is not that divergence in the rulings quoted in this case, which it has been suggested by the learned Vakils on either side exists. The test in each case should be, firstly, has there been a real sale; secondly, at what date had the pre-emptor knowledge that the sale was complete. In the case of Budhai Sardar v. Sonaullah, it was clear that the sale was not complete at the time when the pre-emptor performed the ceremonies of “mawasibat” no consideration had passed, and the vendor was, in spite of the sale to Budhai, still negotiating for a sale to Sonaulla. In the case of Jadu Lal Sahu v. Janhi Koer, the judgment of Mr. Justice Brett shows that what was weighing chiefly in his mind was the question of fact at what particular moment Mr. Lowis knew of a sale to Jadu Lal Sahu. This is clear from pages 586 to 589 of the judgment. It will appear that in that case also Amirul Hussain, the agent of the vendor, was, in spite of the intended sale to Jadu Lal Sahu, negotiating through Mr. Irwin with Mr. Lowis for a sale to the Bettiah Raj. In these two cases the pre-emptor could not be certain that the sale was complete until registration had actually been effected. In the case of Begum v. Muhammed Yakub, there had been a complete sale within the meaning usually attached to a sale by Muhammadans. It was had in that case that the sale, in the eyes of the contracting parties and of the pre-emptor, being complete, it was not necessary for the pre-emptor to wait till registration before performing the ceremony of mawasibat.

That is the test that I would apply to the present case. Was the sale in the eyes of the parties complete? In para. 7 of the plaint we find the following sentence:—“on that very day (the 17th July) while he was at Sheikhpura he all of a sudden learnt that the Defendant, second party, had really sold, by a deed of sale dated the 14th July, his shares in mauzas Belchhi and etcetera.”

The Plaintiff's case, therefore, as set forth in the pleadings, was that he knew that there had been a sale which was in his eyes complete, and that this knowledge came to him on the 17th July while he was at Sheikhpura. He was, therefore, required by the law of preemption to perform the ceremonies of mawasibat immediately. The case is that he did so perform those ceremonies immediately. He cannot now change the nature of his case. It has been found as a fact by the learned Subordinate Judge that he did not perform mawasibat immediately upon obtaining knowledge of the sale. He cannot be permitted to argue that he was not aware that the sale was complete unite after registration was effected. I agree that the appeal should be dismissed with costs.

A.K.E

Appeal dismissed.