SHEIKH MOHAMMAD RAFIQ versus KHALLLUL REHMAN & ANOTHER

Citation: [1973] 1 S.C.R. 500 · Decided: 03-05-1972 · Supreme Court of India · Bench: K.S. HEGDE · Disposal: Dismissed

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Judgment (excerpt)

500 
SHEIIW MOHAMM&.D llAFIQ 
v. 
KHALlLtJL REitMAN & ANOTHER 
May 3t 1972 
[K. S. Hi!GD~ ~ND A. N. G:toVEil, JJ.] 
Mohammedan Law-Demand in a_pre..emption tuit has to be mode 
after tale-deed having heeh copied out in Sub Re,;strar.r Books-Date 
entered In the book is date of sale .. 
Law Rt/orm--Mohamedan 
Law-Pre-emption, suit 
for-Require-
ment of 4e1fi!Jnd. 
A musiim left behind him as his heirs, his widow, twu sons, and 
4 daug~ters A1 B, C and D. 
In 1941, the heirs partitioned his property. 
A portion was aU()tted to the widow and the sons and the remaining 
portion to the daughters. 
Respondent No. 1 purchased the portion allotted to the widow and the 
sQn~. On August 19, 1952, he also enter~ into an agreement with the 
4 daughters for the 
purchase of their portion of the property within 
3 months. 
The sale was, 
howeve!', not completed. On 
August 11, 
1953, all the 4 daughters executed an agr~ment of sale in favour of the 
appellant. 
Of the 4 daughters, D, h5>Wever, dtanged her mind and on 
August 14, 1953, executed a <>ale--deed in fav~r of respondent No. 1. 
'Th.e other 3 daughrers, however, sold their shares to the appellant 
on 
August 17, 1953. 
The sale, however, was actuaUy registered in the books 
of the Sub-Registrar on October 6, 1953. 
Thereafter, the ap~Uant filed a suit against D, (respond:!nt No. 2) 
for specific performance of her part of the a~ement. Respondent No. 1 
also filed a !.Uit for possession by pre-elnption on the ground that he had 
become a co-sharer with the other 3 daughters by virtue of the 
sale 
affected in Ius favour by D of her share. 1'he trial Court dismissed the 
suit for specific pzrformance, but the suit relating to pre-emption was 
decreed in favour of Respondent No, 1. The appellant failed before 
the first appellate Court, and his appe<.;·, to the High Court were also not 
succes~ful. The High Court upheld the decree of dismissal of the suit 
for specific performance filed by the appellant;. and as regards the suit 
for pre-emption, the High Court concluded that re5pondent No. 1 was 
entit!ed to pre-emption. 
.... 
In the appeal arising out of the suit for pre-emption, the sole con-
tention raised by the appellant was that under Mohammedan Law, no 
right of pre-emption accrues unless a demand for pre-emption is mare 
and such a demand could only be made after the completion of the sale 
of property sought to be pre-empted. It was contended by the appellant 
that since the only demand was made on August 17, 1953, the demand 
was premature because the actual registration of the ~ale deed in favour 
of the ap(iellant. by the three daughters was not completed in _the books 
of the Sub"'-Registrar tiU October 6, 1953 and therefore, the smt fo£ pre· 
emption 
was bound .to fail. 
Dismissing the appeals, 
HELD : (i) After the pronouncement of this Court in Ram Saran 
Lall's case, th~: necessary. demands in a pre-emption suit had to be made 
after the sa:·~ had been completed not by execution or registration of 
• 
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MOHD. RJ\J'IQ v. JC. lt.EHMAN 
50J 
tM ,sale-Geod b"& ~y tbe aaJe..deed bavirJ.t bt1!o 1109\ed out tn me Suf>-lle ·s-. 
tttts bOOks ~d at would be tbe date entered in tbat boolc wtmf1 
gJ 
be considered as the date of sale. (SOSB] 
was to 
(ii) The •wellabt .et up in this Court a wboUy new 
b'cb 
was not agitated before any of the Courts below. Tbc po~ 
~tber 
the demands made were 
lkeana~ or compli:d with the 
rules 
f 
Mohammad an. Law could only be detennined by reference to the entf:e 
evl~ence and ~ not a RUrc question of law. 
Even il\ the apcial lea\"C" 
petitldn the J)Ot!1t Will tlot nllsed. 
AccordinJly the appclla01 ca.aoot ~ 
allowed to raUe the q~ 
of lovall~lty of the demanda at tho r.t.e 
stage and tbertfore the awt for pre-emptiOn must fall. [$060-E] 
Ram Saran lAI and Ors. v. Mst. Domini lut, &: Ors, (19621 2 S.C.R. 
474. referred to. 
. (iii) The M~~medan Law .relating to demand before filiog a. 
SUit for pre-erophoo IS 
Of 8 
higbly technical 
nature. Tbc tafabi·i-
mowsaibat is apoken of I!S the tint demand and tulab-Usllad 
is 
the 
second demand. 1be third demand consists of the imtitutioo of the 
suit for p~mptiot1. Both the talabs are conditions ~eot to tho 
excn:ise of tbe rigbt of pre-emption. 
The tlrst talab should be made as 
soon as the fact of the saJe is known to the claimant. Ally unreasooable 
or unoeceasory delay will be construed as an election not 

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