LexKUMAR GONSUSAB & ORS. versus SRI MOHAMMED MIYAN URF SABAN & ORS.
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[2008] 12 S.C.R. 226 A KUMAR GONSUSAB & ORS. -+~ v. SRI MOHAMMED MIYAN URF SABAN & ORS. (Civil Appeal No. 157 of 2001) B AUGUST 19, 2008 [TARUN CHATTERJEE AND P. SATHASIVAM, JJ.] Mohammedan Law - ss. 226 and 232 - Suit for pre-emp- tion on the ground of vicinage - On the basis of agreement for c sale of the suit property - Entertainability of - Held: Suit not entertainable as no cause of action arose to file the suit- Cause of action would arise only when the suit property is actually sold and not when there is merely an agreement to sell - Trans- fer of Property Act, 1882 - s. 54. D Pre-emption - Right to pre-emption - Nature of - Held: Such right is a weak right - There are no equities in favour of }. pre-emptor - Courts can not go out of their way to help the .,., pre-emptor - Equity. E In the insant matter, the question for consideration was whether a suit for pre-emption on the ground of vici- nage could be entertained when only an agreement for sale has been entered into in respect of the suit property. Allowing the appeal, the Court F HELD: 1.1 On a plain reading of Sections 226 and 232 of the Mohammedan Law, it is clearly evident that the ,;.- right of pre-emption can only accrue to an owner of im- moveable property when another immoveable property is sold to another person. Section 232 of the Mohammedan G Law indicates that sale alone gives rise to pre-emption. In view of the admitted fact that merely an agreement for t --- sale was entered into by appellant No.3 in favour of ap- pellant Nos.1 and 2 in respect of the suit property, the question of exercising any right of pre-emption by the re- H 226 ..!}.. ·' "' "'-•." KUMAR GONSUSAB & ORS. v. SRI MOHAMMED 227 MIYAN URF SABAN & ORS. spondents could not arise at all. A suit for pre-emption brought on the basis of such an agreement for sale must be held to be without any cause of action as there was no right of pre-emption in the respondents which could be enforced under the law. [Paras 10 and 11] [233,G-H; 234,D] 1.2 Section 54 of Transfer of Property Act says that a contract for sale does not, of itself, create any interest in or charge on immoveable property. Therefore, where the parties enter into a mere agreement to sell, it creates no interest in the suit property in favour of the vendee and the proprietary title does not validly pass from the ven- dor to the vendee and until that is completed, no right to enforce pre-emption arises. Therefore, the suit for pre- emption brought on the basis of such an agreement was without any cause of action as there was no right of pre- emption in the respondents which could be enforced under the law. [Para 11] [234,B-D] Radhakishan Laxminarayan Toshniwal, vs. Shridhar Ramchandra Alshi and Ors. AIR 1960 SC 1368 - referred to. 1.3 If ultimately the sale deed is executed, it would be open for the respondents to apply for pre-emption of the suit property, provided that under the law they are permit- ted to maintain the suit for pre-emption. [Para 15) [235,E] 2. There are no equities in favour of a pre-emptor, . whose sole object is to disturb a valid transaction by vir- tue of the rights created in him by statute. It would be open to the pre-emptee, to defeat the law of pre-emption by any legitimate means, which is not fraud on the part of either the vendor or the vendee and a person is entitled to steer clear of the law of pre-emption by all lawful means. The right of pre-emption is a weak right and is not looked upon with favour by courts and therefore the courts cannot go out of their way to help the pre-emptor. [Paras 11 and 12] [234, H; 235,A-B] A B c D E F G H 228 SUPREME COURT REPORTS [2008) 12 S.C.R. A Radhakishan Laxminarayan Toshniwal vs. Shridhar B Ramchandra Alshi and Ors. AIR 1960 SC 1368 - referred to. Case Law Reference AIR 1960SC1368 Referred to. Paras11and12 CIVILAPPELLATE JURISDICTION: Civil Appeal No. 157 of 2001 From the final Judgment and Order dated 5.11.1998 of the High Court of Karnataka at Banglore in R.S.A. No. 831 of c 1996 Shankar Divate for the Appellant. R.S. Hegde, P.P. Singh, M. Qamaruddin and lrshadAhmad for the Respondents. D The Judgment of the Court was delivered by TARUN CHATTER .. JEE, J. 1. This appeal is directed against the judgment and decree dated 5th of November, 1998 passed by the High Court of Karnataka at Banglore in R.S.A. E No. 831/1996, by which the second appeal filed b
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