Case: Sheikh Mohammad Rafiq Vs. Khalilul Rehaman &amp; Another

2. One Gauhar Ali was the owner of a pucca two storeyed house in the City of Moradabad. On his death he left behind as his heirs his widow Musammat Begum, two sons Liaqat Ali and Ishtiaq Ali and four daughters Sughara Begum. Kubra Begum, Mehmooda Begum and Chhoti Begum. In 1941 the heirs of Gauhar Ali partitioned the property. According to the partition the house in dispute was divided longitudinally east and west. The western portion was allotted to the widow and the sons and the eastern portion came to the share of the four daughters. Respondent No.1 purchased the western portion of the house from the widow and the sons. On August 19, 1952 he also entered into an agreement with the four daughters for the purchase of their part of the house, namely, the eastern portion. The period in which the sale-deed was to be executed was three months but it appears that the sale was not completed. On August 11, 1953 all the four daughters executed an agreement of sale in favour of the appellant. Musammat Chhoti Begum, however, changed her mind and executed a sale-deed in favour of respondent No.1 on August 14, 1953. The other three daughters however, did not go back on the agreement entered into with the appellant and they got a sale-deed transferring their share registered in favour of the appellant on August 17, 1953. This sale was, however, actually registered in the books of the Sub-Registrar on October 6, 1953.3. On September 9, 1953 the appellant filed a suit against respondent No.2 (Chhoti Begum) for specific performance of her part of the agreement Respondent No.1 also filed on February 6, 1954 a suit for possession by pre-emption on the allegation that he had become a co-sharer with the other three daughters by virtue of the sale effected in his favour by Chhoti Begum of her share in the eastern portion of the house. Both the suits were tried and disposed of by the trial Court which held that respondent No.1 was not a bona fide purchaser for value but since he had a right of pre-emption the suit for specific performance was dismissed and the suit relating to pre-emption was decreed in favour of respondent No.1. The appellant filed appeals before the first appellate Court which failed. He preferred two appeals to the High Court which upheld the decree of dismissal in the suit for specific performance filed by the appellant. As regards the suit for pre-emption it was held that the ground of vicinity was no longer available in view of the judgment of this Court in Bhau Ram v. B. Baijnath Singh, 1962 Supp (3) SCR 724 = (AIR 1961 SC 1327  ). The High Court, however, came to the conclusion that respondent No.1 was a sharer in the appendages - common gate and common passage - and therefore he was entitled to pre-emption.

Reasoning: 9. It seems to us that a strict compliance with all the requirements of the two demands which are necessary before a pre-emptor can succeed in a suit for pre-emption under the Mahomedan Law may become very difficult, particularly, on the question of the promptness and avoidance of delay with regard to the first demand.As stated before a sale shall be deemed to be completed only after the sale deed has been copied in the books of the Sub-Registrar. If the demand has to be made after such completion it would be virtually impossible or at any rate extremely difficult for any pre-emptor to make the first demand as promptly as required under the principles of Mahomedan Law. It cannot be expected that a pre-emptor should keep a perpetual watch and go on making constant inquiries with regard to the point of time when the office of the Sub-Registrar would copy out the sale deed in the prescribed book. However, that is a matter on which legislation may become necessary and that is for the Parliament to consider and not for us.10. It would be abundantly clear from what has been stated above that the question of demand has not been examined by any of the courts keeping in view the law laid down by this court and the principles to which reference has been made. Obviously it was the appellant who was to blame for not agitating these matters at least before the High Court. The point whether the demands made were premature or complied with the rules of Mahomedan Law could only be determined by reference to the entire evidence and is not a pure question of law. It is surprising that even in the petition for special leave to this court the points which Mr. Chagla has raised were not canvassed. In the statement of the Case only the matter was put in thesethe respondent could not claim pre-emption as a co-sharer (Shafie-Sharik) he had not become owner of the one fourth share in the eastern portion before the sale deed in favour of the appellant. The sale deed in his favour was registered on the 17th August, 1953, some time after the three sisters registered the deed in favour of the appellant. As held by this Honble Court in the case reported in 1962 (2) SCR 474     the demand made by the respondent at 4 or 5 p.m. on 17-8-1953 was not valid.Mr. Chagla, while fairly and properly admitting that all these infirmities are present, has maintained that we should give a decision on the question of demand in the light of his argument and that the pre-emptor whose right is weak and is of a piratical nature should not be allowed to succeed unless he satisfies the court that he has strictly complied with the requirements of law relating to pre-emption. In our judgment adjudication of this matter which is a mixed question of law and fact should have been invited from the courts below and in the absence of any such decision it will not be just and proper for us, at this stage to allow the matter to be re-opened and to entertain the contention of Mr. Chagla on the question of the invalidity of the demands or demands made by the respondent before filing the suit for pre-emption.