Sohan Nath Modi J., -
(1.)Vide judgment dated the 27th August, 1973, made a reference as he had differed with the earlier judgment dated the 28th April, 1972 passed by J. P. Jain J., in S. B. Civil Second Appeal No. 261/1971 (Prabhu Narain Patwa v. Suraj Narain Sanehi and others). Jain J., in substance, held that the customary right of pre-emption founded on Mohammedan Law stood modified by the notification of the State of erstwhile Jaipur dated the 7th April, 1927, and the formalities of Talabs, stood abolished by the said notification.
(2.)Before we proceed to decide this reference, we may mention chronological history of the civil proceedings from which the present reference has arisen. The appellant filed a suit for pre-emption on 29th August, 1963 in the Court of Senior Civil Judge, Jaipur City No. 1, when the Rajasthan Pre-emption Act, 1966 was not in force, which was decided on 23rd October, 1971. There, almost all the issues were decided in favour of the appellant, except issues Nos. 5 and 7. Being dissatisfied with the judgment of 23th October, 1971, the appellant filed an appeal before this Court on 11th January, 1972, which resulted in making reference on 27th August, 1973 deciding issue No. 7 in favour of the appellant. Modi J., while deciding issue No.5, referred the matter for consideration of a Division Bench for answering the following question: "Whether the notification dated 7th April, 1927 published in the Jaipur Gazette dated 15th April, 1927 modified the customary right of pre-emption prevailing in the former Jaipur State and made the formalities of making 'talabs' as unnecessary?"
(3.)The only question which calls for adjudication is, whether the making of Talabs is necessary or has become 'unnecessary' in Jaipur and what is the effect of notification dated the 15th April, 1927, which runs as under:
"No. 2155/J-I-148- Dated Jaipur, the 7th April, 1927 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 3 months from the date of service of such notice he or his agent pays or tenders through the Court the price aforesaid to the person so proposing to sell. 3. Any person entitled to a right of preemption may bring a suit to enforce such right on any of the following grounds (namely): - (a) that no due notice was given as required by R. 1; (b) that tender was made under R. 2 and refused; (c) that the price stated in the notice was not fixed in good faith;"