DWARKA PRASAD, J. - (1.) AS both these appeals arise out of the same judgment and decree passed by the learned District Judge, Jaipur District, Jaipur dated November 18, 1969, they have been taken up together for hearing and are disposed of by a common judgment.
(2.) THE only question which arises in these appeals is as to whether a suit for pre-emption could not be filed because the pre-emptor failed to make the customary Talabs. Kalyan Bux filed a suit for pre-emption in respect of certain portions of a house property situated in the city of Jaipur on the basis that he was a co-sharor in the same house and had. therefore, a preferential right of purchase. There was some dispute between the parties as to whether the property in question was sold for a sum of Rs. 6,999/- or for a lesser amount. However, both the courts below came to the conclusion that the plaintiff was a co-sharer and that the property in question was sold for a sum of Rs. 6,999/-. As such, a decree for pre-emption was passed in favour of the plaintiff by the learned Civil Judge, Jaipur District. No question about absence of Talabs was raised in the trial court. However, in the first appeal a question was raised that in the absence of Talabs, the plaintiff could not assert a right of pre-emption and the suit was not maintainable. The learned District Judge, Jaipur District, on the basis of a notification issued by the then Jaipur Government on April 7, 1927 held that the making of Talabs was not necessary for asserting the right of pre-emption in the case of sales made within the territory comprised in the former State of Jaipur, where the right of pre-emption was based on customary law. On all other questions, the judgment of the trial court was upheld and the defendant's appeal was dismissed. In this second appeal, as stated earlier, the only question argued by learned counsel for the appellant was that making of Talabs was absolutely necessary for asserting the right of pre-emption, as in the City of Jaipur the law of pre-emption was co-extensive with the Mohammedan Law and that in the absence of any special custom different from the Mohammedan Law, the principles of Mohammedan Law were applicable as such, even while the parties were Hindus. Learned counsel for the appellant relied upon the following observations occurring in the decision of the Full Bench of this Court in Nathu Ram vs. Pat Ram (1): "We may state at once that under the custom as prevailing in Jaipur City, the right of pre-emption is co-extensive with the Mohammedan Law. On this point, we may refer to the case of Ram Rakh vs. Mst. Gulab (29) in which this proposition of law has been accepted." The question which was before the Full Bench in Nathuram's case (1) was as to whether a co-sharer was entitled to share equally with the vendee of the property sold, even if the vendee was also a co-sharer and the pre-emptor had no preferential right. The observations made by their Lordships of the Full Bench in Nathu Ram's case must be read in the context in which they were made. Their Lordships relied upon the decision in Ram Rakh vs. Mst. Gulab (2), while making the observations that the right of pre emption under the custom prevailing in Jaipur city was co-extensive with the Mohammedan Law. In Ram Rakh's case also the question raised was whether the right of pre emption could be exercised when both the pre-emptor as well as the vendee were co-sharers in the property which was the subject-matter of sale. The following observations was made in Ram Rakh's case (2):- "The claim of pre-emption among the Hindus in the former Jaipur State, in which area this case has arisen, was recognized on the basis of custom, the said right being co-extensive with Mohammedan Law, unless modified by custom." On the basis of these observations, the argument has been sought to be made in these appeals that there could be no divergence from the Mohammedan Law, so far as the customary law of pre-emption prevalent in Jaipur city was concerned. Of course, so far as the right of the co-sharer pre-emptor was concerned, in respect of property where the buyer was also a co-sharer, the law in Jaipur city was co-extensive with the Mohammedan Law and the right of pre-emption could not be exercised by a co-sharer if the property was sold to any other co-sharer. But in aforesaid two cases the question of necessity of making the Talabs for the purpose of exercising the right of pre-emption was not in dispute and the same was neither considered nor decided. Learned counsel for the appellant also referred to a decision of their Lordships of the Supreme Court in Smt. Rajeswari Devi vs. Mokesh Chandra (Civil Appeal No. 162 decided on October 31, 1967) wherein it was held that making of Talabs after the sale is completed is not a technical rule of Mohammedan Law, but a rule of substance and that in the absence of evidence of special custom different from or not co-extensive with the Mohammedan Law of pre-emption, the Mohammedan Law must be applied to the sale of a house property situated in a locality where the law of pre-emption applies by custom. There is no doubt that in the city of Jaipur the law of preemption used to be applied by custom prior to the enforcement of the Rajasthan Pre-emption Act, 1966 and the right of pre-emption could be exercised according to Mohammedan Law, subject to modification thereof by law or special custom. In Mustt. Mathura vs. Mustt. Ramzano (3), a bench of three Judges of the former Chief Court of Jaipur, held that Mohammedan Law applied where both the vendee and the pre-emptor happened to be Mohammedans. If a Mohammedan claimed pre-emption in respect of a sale by a Hindu or if the order be reversed, the claim should be considered as based on custom and not on Mohammedan Law and if the parties, namely, the vendee and the pre-emptor, both were Hindus then also the Mohammedan Law as modified by custom would be applicable. The same situation also was applicable where both the vendee and the pre-emptor were Hindus. In the aforesaid judgment the following observations were made: "It has been held in a number of cases decided by the old Council and also by the Chief Court that talabs are not necessary when the claim is not based on Mohammedan Law. 1. Mehar Chand Versus Ratanlal, decided by the Ijlas, on 30th January 1913, 2. Mt. Gauran versus Dhania, decided by the Ijlas on the 28th February 1918, 3. Gordhah Versus Ram Kishan, decided by the Ijlas on the 13th February 1924, and 4. Choteylal versus Sheo Shanker, decided by the Chief Court, on the 10th November 1926. The omission of talabs does not, therefore, affect the plaintiff's right of pre-emption, as the reciprocity between them and the vendor is on the basis of custom and not of the Mohammedan Law." Thus, it appears that so far as the city of Jaipur was concerned, Mohammedan Law was modified by custom, in respect of the question of making of talabs and the talabs were not considered necessary.
(3.) HOWEVER, the position was made clear by a notification No. 2155/J-1-148 dated April 7, 1927 which was issued by the then Government of Jaipur and which runs as under:- "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 three months from the date of service such notice he or his agent pays or tenders through the court the price aforesaid to the persons proposing to sell. 3. Any person entitled to a right of pre-emption may bring a suit to enforce such right on any of the following grounds (namely):- (a) that no due service was given as required by Rule 1; (b) that tender was made under rule 2 and refused; (c) that the price stated in the notice was not fixed in good faith." Even it the decision of the Jaipur Chief Court in Mst. Mathura's case (3) may not be taken in to consideration then on account of the aforesaid notification dated April 7, 1927 the customary right of pre-emption founded on Mohammedan Law stood modified by law, so far as the area comprised in the former State of Jaipur was concerned. The notification makes it amply clear that the right of pre-emption would be enforced by bringing a suit in the conditions specified in clause 3 thereof, irrespective of the fact whether Talabs were made or not. The aforesaid notification required that the person who proposed to sell the property, in respect of which any other person may have a right of pre-emption, should give a notice of bis intention to sell the property to the possible pre-emptor through the court which had jurisdiction over the locality in which the property or any part thereof was situated. The person who has the right of pre-emption then had the option either to make payment of or tender the price for which the property was proposed to be sold through the Court within a period of three months from the date of the service of such notice or he could contest that the price stated in the notice was exorbitant and was not fixed in good faith or he could refuse to make such payment of the price. In the first case, if the proposed sale price was paid to the vendor or tendered through the court then the vendor would have to sell the property to the pre-emptor for the proposed price. If the price claimed in the notice was contested to be exorbitant and not fixed in good faith, then the pre-emptor could bring a suit for enforcing his right of pre-emption. In case the person, to whom such a notice was given by the vendor, failed to make payment of or tender the proposed price within a period of three months through the court and did not contest the proposed price as exorbitant or in bad faith, then such a person completely lost his right of pre-emption in respect of the proposed sale. If the right was lost, as specified in clause (2) of the aforesaid notification, then after the sale was completed, such a right could not be renewed merely by making Talabs. If on the other hand the amount was paid or tendered through the court by the pre-emptor, on receipt of the notice, then no action for enforcement of right of pre-emption would be necessary, as the vendor would sell the property to the pre emptor on making payment of or tendering the amount, as that would amount acceptance of the offer and the contract would become complete. But in case no notice is given by the vendor to the person who could assert a right of pre-emption in respect of the proposed sale, as required by clause (1) of the aforesaid notification, the pre-emptor could enforce the right of pre-emption by filing a suit and the said right could not be denied or defeated on the ground that talabs were not made according to Mohammedan Law. In Second Appeal No. 261 of 1971 decided by a learned Single Judge of this Court (J.P. Jain J.) on April 28, 1972, it was held that the notification of 1927 made the Talabs by a pre-emptor unnecessary, in case of a sale governed by customary law of pre-emption applicable to the area comprised in the former State of Jaipur. The same view was taken by another learned Single Judge of this Court (MB. Sharma J.) in Gopal and others vs. Hari Dutt Sharma (S.B. Civil Second Appeal No. 271/68 decided on July 24, 1981) and it was held that the customary law of pre-emption founded on Mohammedan Law stood modified, so far as the territories comprised in the former State of Jaipur were concerned, by the notification dated April 7,1927, learned counsel for the appellant relied upon certain observations made by another learned Single Judge of this Court (S.N. Modi J.), in a reference order dated August 27,1973, in the case of Radhaballabh vs. Pushalal (S.B. Civil First Appeal No. 18 of 1972 decided on August 27, 1973) wherein he expressed doubt about the correctness of the decision of J.P. Jain J. in Prabhu Narain Patwa's case (S.B. Civil Second Appeal No. 261 of 1971 decided on April 28. 1972). It was observed by Modi J. that: "the provisions of the notification are neither inconsistent nor they are such that they cannot stand together side by side, with the customary right of preemption founded on the Mohammedan Law and according to which making of talabs' is essential." The view expressed by Modi J. in the aforesaid passage could not be taken to be a final decision as they were made in a reference order and not while deciding a case finally. ;