- (1.) Whilst an appeal has been taken against the judgment and decree passed by the learned Civil Judge, Jaipur in favour of Respondent Nos. 1 and 2 on deposit of Rs. 4657/- on the basis of the doctrine of Pre-emption in the court before a specified date and the High Court dismissed the appeal on the ground of there being no material for interference with the finding of the Civil Judge, Jaipur and a special leave petition was filed against the same (being Civil Appeal No. 5816/1994), the learned Advocate in support of the Appeal only restricted his submission on the issue of the principle of talab, as is known in Muslim Law.
(2.) The principle of talab in Muhammadan Law has three specific facets: the first being talab-e-muwathaba: Talab in common parlance means and implies a demand and talab-e-muwathaba literally means the demand of jumping. The idea is of a person jumping from his seat, as though startled by news of the sale (See in this context Wilson on Mohammadan Law). In Talab-emuwathaba the pre-emptor must assert his claim immediately on hearing of sale though not before and law stands well settled that any unreasonable delay will be construed as an election not to pre-empt. The second, being popularly known as the Second Demand, is talab-e-ishhad, which literally speaking mean and imply the demand which stands witnessed. The second demand thus must be in reference to the first demand and it is so done in the presence of two witnesses and also in the presence of either the vendor (if he is in possession) or the purchaser and the Third Demand though not strictly a demand but comes within the purview of the Principal and means initiation of leagal action. It is however not always necessary since it is available only when one enforces his right by initiation of a civil suit - such an action is called talab-e-tamlik or talab-eKhusumat. In this form of Talab the suit must be brought within one year of the purchaser taking possession of the property and a suit or claim for pre-emption must relate to whole of the interest and not a part of the estate.
(3.) Needless to record that right of preemption (shuf'a) is the right which the owner of immovable property possessess to acquire by purchase of any immovable property been sold to another person. Whereas the High Courts at Bombay and Calcutta held that the right of pre-emption is a right of re-purchase from the buyer and a personal right; the Allahabad High Court held that it is an incidence of property. This Court, however, in the case of Audh Behari Singh v. Gajadhar Jaipuria (1955) 1 SCR 70 : (AIR 1954 SC 417) has held that the right of pre-emption is an incidence of property and attaches to the land itself. Detailing the judgments of the Calcutta High Court in Sheikh Kudratulla v. Mahini Mohan (1870) 4 Beng LR 134 as also the Allahabad and Patna High Courts view, this Court observed : (at.p. 422 of AIR) "In our opinion it would not be correct to say that the right of pre-emption under Muhammadan Law is a personal right on the part of the pre-emptor to get a retransfer of the property from the vendee who has already become owner of the same. We prefer to accept the meaning of the word "Tajibo" used in the Hedaya in the sense in which Mr.Justice Mahmood construes it to mean and it was really a mis-translation of that word by Hamilton that accounted to a great extent for the view taken by the Calcutta High Court. It is true that the right becomes enforceable only when there is a sale but the right exists antecedently to the sale, the foundation of the right being the avoidance of the inconveniences and disturbances which would arise from the introduction of a stranger into the land. We agree with Mr. Justice Mahmood that the sale is a condition precedent not to the existence of the right but to its enforceability. We do not however desire to express any opinion on the view taken by the learned Judge that the right of pre-emption partakes strongly of the character of an easement in law. Analogies are not always helpful and even if there is resemblance between the two rights, the differences between them are no less material. The correct legal position seems to be that the law of pre-emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owner's unfettered right of sale and compels him to sell the property to his co-sharer or neighbour as the case may be. The person who is a co-sharer in the land or owns lands in the vicinity consequently gets an advantage or benefit corresponding to the burden with which the owner or the property is saddled; even though it does not amount to an actual interest in the property sold. The crux of the whole thing is that the benefit as well as the burden of the right of pre-emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre-emptor does not amount to an interest in the land itself. It may be stated here that if the right of pre-emption had been only a personal right enforceable against the vendee and there was no infirmity in the title of the owner restricting his right of sale in a certain manner, a bona fide purchaser without notice would certainly obtain an absolute title to the property, unhampered by any right of the pre-emptor and in such circumstances there could be no justification for enforcing the right of pre-emption against the purchaser on grounds of justice, equity and good conscience on which grounds alone the right could be enforced at the present day. In our opinion the law of pre-emption creates a right which attaches to the property and on that footing only it can be enforced against the purchaser.";