- (1.) THIS is a second appeal by Kanhiyalal vendee who was defendant in a pre-emption suit.
(2.) THE suit was brought by Gourilal for pre-emption of a house sold by Mahadeo, who was also made a defendant, to Kanhiya Lal. THE house was in the city of Jaipur. THE suit was based on vicinage, though the learned Munsif says in his judgment that the plaintiff was Shafi-e-Sharik. Kanhaiyalal opposed the suit, and the main point put forward on his behalf was that the plaintiff had no right of pre-emption. We nead not mention the other points which were also subject-matter of certain issues as learned counsel for the appellant has not raised those points before us. The Munsif decided that the plaintiff had a right of pre-emption, and decreed the suit on the 12th May, 1948. Then there was an appeal to the District Judge, Jaipur City, which was dismissed on the 13th of December 1948. Then followed the present second appeal, which was filed in the High Court of the former State of Jaipur, and came to his Court when it was established in 1949. Learned counsel for the appellant has urged only two points before us In the first place, he contends that as the sale made by Mahadeo in favour of Kanhaiyalal was not a voluntary sale, no right of pre-emption whatsoever arises in such a case. Secondly, it is urged that, as held by this Court in Panch Gujar Gaur Brahmans vs. Amar Singh (l), right of pre-emption by vicinage is no longer available after the 26th of Jan. , 1950. and therefore this appeal should be allowed. We shall take the point relating to voluntary sale first. The facts in this connection are that Mahadeo executed an agreement to sell this house to Kanhaiyalal. He did not, however, carry out the agreement, and Kanhaiyalal, therefore, filed a suit for specific performance of the agreement. This suit was decreed in October, 1944, and the appeal that Mahadeo filed against it failed. Thereupon, there was execution, and the sale deed was executed by the Munsif on behalf of Mahadeo in favour of the appellant on the 29th of July. 1946. It is this sale deed which in the basis of the present preemption suit. The contention on behalf of the appellant is that there was no voluntary sale by Mahadeo in favour of Kanhaiyalal, and that the right of the pre-emption under the Mohammedan Law only arises in cases of voluntary sales. Learned counsel has relied on a number of authorities in this connection to show that in cases of court sales in execution proceedings, no right of pre-emption has been held to arise Before, however, we review these authorities, we would like to consider how pre-emption has been defined by commentators on Mohammedan Law. In Mulla's Principles of Mohammedan Law, 13tn Edition, page 209, pre-emption has been defined in paragraph 226 as - "the right of Shufaai or pre-emption a right which the owner of an immovable property possesses to acquire by purchase another immovable property which has been sold to another person. " This definition is based on Baillics translation of the Hidayat. It may be noted that there is no mention of a voluntary or an involuntary sale here, though of course normally a sale would take place voluntarily. ' In Wilson's Anglo Muhamadan Law, 6th Edn. , p. 387, the right of pre-emption is defined as "a right to acquire by compulsory purchase, in certain cases, immovable property in preference to all other persons. " This is elaborated at page 392 where the following appears - "when a Muhammadan. . . . . . . . . . . has contracted to sell any immovable property or his share in any immovable property the right to be put in the place of the vendee on tendering to him the price which he had contracted to pay to the vendor belongs to certain persons which is not necessary for our purposes to specify. This exposition would suggest that the right arises when there is a contract to sell, though of course, it can only be exercised when the sale is complete. In Tyabji's Mohammedan Law, third edition, p. 662, pre-emptor has been defined as meaning "a person having or claiming the right to get any property transferred to him self on his paying the consideration for which the owner of the said property has, or is alleged to have sold or bartered or has purported, or agreed, to sell or barter it to another. " The said right or claim is called the right (or claim) to pre-empt. This will also make it clear that the right arises when there is an agreement to sell, though, of course, as we have already mentioned, it can only be enforced after the sale is complete. Syed Ameer Ali in Mahommedan Law, Vol. I, third edition, p 596, defines preemption as meaning ''the right which one person has of acquiring a property sold to another in preference to that other by paying a price equal to that settled, or paid by the latter. " In this definition also there is no distinction between a voluntary sale and an involuntary sale, though, as we have said already, most sales are voluntary. Saxena in his Muslim Law as administered in India and Pakistan, third edition, page 668, has quoted the definition given by Mahmood J. of the right of pre-emption in Govind Dayal vs. Inayat Ullah (2) According to this definition, pre-emption is"a right which the owner of certain immovable property possesses as such for the quite enjoyment of that immovable property to obtain in substitution for the buyer's proprietary possession of certain other immovable property, not his own, on such terms as those on which such latter immovable property is sold to another person. " The same right is defined at the same page in other words by Saxena in these words - "it is a right by which a person having such right (called the pre emptor), is substituted in place of the vendee of some immovable property by reason of such right, or in other words, it means a right to acquire by compulsory purchase some immovable property in preference to all other persons, by reason of such right " It will be clear from all these definitions given in various commentaries that distinction as to voluntary and involuntary sale does not appear to have been drawn in Mohammedan Law so far as the arising of the right of pre-emption is concerned. The cases relied on by learned counsel for the appellant are generally cases of sales following decrees of courts in suits other than suits for specific performance of the contract. In those cases, it has been held that a sale by court in execution proceedings does not give rise to a right of pre-emption. These cases in our opinion are based on special considerations, and are distinguishable from cases where a sale has taken place in execution of a decree for specific performance on the basis of a contract for sale.
(3.) IN Baij Nath vs. Sital Singh (3) a question arose whether any right of pre-emption arose in respect of compulsory sales such as those which took place by public action in execution of decrees or for areas of Government revenues. Mahmood J was of the opinion that this question must be answered in the negative whether the right of pre-emption arises under the Mohammaden Law, or under certain terms of a Wajlb-ul-arz, or local usage or custom, The reason given by him for this at page 227 are these - "such sales are not the result of any vate contract to which the person whose property is sold is a party. They are the result of an authority conferred by the legislature upon she Courts for the purposes of awarding remedies against those who have failed to perform their pecuniary obligations. But for the specific interference of the Legislature such a power to sell the property of the debtor against his will could not be exercised by the Court or the revenue authorities and it would appear from general principles that when, in so interfering, the Legislature has framed specific rules, statue-law takes the place of general law, if any, in pari materia and excludes the application of the ordinary law of sale on account of the exigencies of procedure. The object of such sales is to secure satisfaction of debts by well defined means and methods calculated to achieve the object with certainly and expedition, and it seems clear that the object would be frustrated if such sales were hampered by the rules which govern private sales. The Legislature, however, in so interfering has not been needless of the right of preemption. Under the rules of procedure compulsory sales take place after a public proclamation, which, being an act of the Court or revenue authority, is taken to be sufficient notice to the pre-emptors, along with the public at large, to come forward and purchase the property; and it seems reasonable to suppose that those who do not appear to bid at the auction sale have no wish to purchase the property. " We wish to emphasise certain points appearing in these observations. The first matter, which we wish to emphasise, is that compulsory sales, which do not give rise to the right of pre-emption, should not arise out of any private contract. Now, a sale, following a suit for specific performance clearly arises out of a private contract. The second point, which we wish to emphasis, is that these compulsory sales, which do not give rise to the right of pre-emption, arise in connection with remedies for enforcing the pecuniary obligation of the debtors which are very different from an obligation arising out of a contract to sell. The third matter, which we wish to emphasise, is that such sales, which do not give rise to the right of pre-emption, take place after a public proclamation. Now, a sale by court in execution of a decree for specific performance does not take place after any public proclamation. The court makes a sale after notice to the judgment-debtor after the latter fails to do so within a certain time allowed by the court. The reasons, therefore, which led the courts to hold that compulsory sales resulting from execution of decrees in connection with pecuniary liabilities do not apply to cases in which sales are made by courts in execution of a decree for specific performance of a contract. The view taken by Mahmood J in this case has been followed by other courts so far as similar compulsory sales are concerned, and we do not think it necessary therefore to refer to the other authorities, and shall next refer only to those cases which deal with specific performance of contract. In Sadhu Lal Chand vs. L. Ram Chandra (4) the Allahabad High Court has held that a transfer of proprietary interest for cash consideration though it was under orders of the court for enforcement of a previous voluntary contract for sale is a sale within the meaning of sec. 11 of the Agra Pre-emption Act. Sale is defined in the Agra Pre-emption Act in sec. 4 (10) as a sale as defined in the Transfer of property Act. The view taken in this case, therefore, is that where a sale follows as a result of a decree for specific performance of a contract based on a contract to sell, the sale is sale within the meaning of the Transfer of Property Act, and is preemptible under the Agra Pre-emption Act. The same view should, in our opinion, be taken where pre-emption is based on custom. The Allahabad High Court followed the case cited above in Kali Charan Singh vs. Janak Deo Singh (5 ). Learned counsel for the appellant has drawn our attention to two cases which, according to him take a contrary view. In Ghulam Mohiuddin Khan vs. Hardeo Sahau (6), it was held that a sale by an official assignee of an insolvent did not give rise to a right of pre-emption. The argument is that if such a sale did not give rise to a right of pre-emption, there is no reason why a sole in pursuance of a decree for specific performance of a contract should be held to give rise to such a right. In this connection, however we may point out that in Ghulam Mohiuddin Khan's case (6), the official assignee sold the property by public auction. It was held in those circumstances that where in the case of an involuntary sale by public auction of the estate of co-sharer, the other co-sharers had full notice of the intended sale and did not bid for the property or attempted to purchase it, their action was tantamount to a refusal to purchase it. The right therefore in that case was negatived on the ground that the pre-emptors had been offered the property and had refused to purchase it, and not on the ground that the sale did not gives rise to a right of pre-emption because it was an involuntary sale. The next case is from Pakistan. In Mohammad Wazir vs. Chaudhari Jahangiri Mal (7), it was held that a sale effected in consequence of a decree for specific performance did not give rise to the right or preemption under the Punjab Preemption Act. This conclusion was, however, arrived at on the special definition of the word 'sale' in sec 3, sub-sec. (5) of the Punjab Pre-emption Act. It defined 'sale' as not including a sale in execution of a decree for money or of an order of a Civil, Criminal or Revenue Court. As a sale in a decree for specific performance of a contract was held to be a sale in execution of an order of a civil court it was held that no right of preemption arose in such a case. The Lahore case (7) also is clearly distinguishable for we are not dealing with a sale as defined in any statutes in this appeal. ;