LexSMT. MATTOO DEVI versus DAMODAR LAL (DEAD) BY LRS. AND ORS.
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SMT. MA TTOO DEVI
A
v.
DAMODAR LAL (DEAD) BY LRS. AND ORS.
JULY 18, 2001
[A.P. MISRA AND UMESH C. BANERJEE, JJ.]
B
Mohammadan Law:
Immovable property-Sale of-Right of pre-emption-Ta/ab-Principle
of-Held : There are three facets of ta/ab; (i) talab-e-muwathaba, (ii) ta/ab- C
e-ishhad and (iii) talab-e-tamilik or talab-e-khusumat-The first implies a
demand, the second, reiteration of demand in the presence of witnesses and
the third, initiation of legal action-The owner of an immovable property
possesses a right of pre-emption (shuf'a) over immovable property that has
been sold to another person.
Practice and Procedure :
Finding of fact-lnte1ference with-Scope of-Held: Ought not to be
inte1fered with unless there is a total perverse view of the matter in issue.
Words and Phrases:
;'Talab-e muwathaba '", "talab-e ishhad", "talab-e tamlik ", "talab-e
khusumat" and "shuf'a "-Meaning of-In the context of Immovable property
under Mohammodan law.
The respondents-plaintiffs filed a suit for a declaration that 3/4th portion
of the suit property belonged to them and the sale to that extent in favour of
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the appellant-defendant was null and void. The respondents also claimed that
they had a right of pre-emption as they were the co-sharers. The appellant
alleged that no 'talabs' were made by the respondents and that the respondent
showed their inability to purchase the property and thus they waived their G
right to pre-emption. The trial court dismissed the suit. The first appellate
court allowed the appeal, which was confirmed by the High Court. Hence this
appeal
Dismissing the appeal, the Court
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SUPREME COURT REPORTS
[2001] 3 S.C.R.
A
HELD : 1.1. The principle of talab in Mohammadan Law has three
specific facets; the first being talab-e muwathaba. Talab in common parlance
· means and implies 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 the news of the sale. In talab-e muwathaba the pre-emptor must assert his
claim immediately on hearing of the sale though not before, and law stands
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well settled that any unreasonable delay will be constructed as an election not
to pre-empt. The second, being popularly known as the second demand, is
talab-e ishhad, which literally speaking means and implies 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
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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 principle and means initiation of legal action. It is, however, not always
necessary since it is available only when one enforces his right by initiatioq
of a civil suit - such an action is called talab-e tamilk or talab-e khusumat.
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In this form oftalab 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.
11011-F-H; 1012-A)
Wilson on Mohammadan L9w, referred to.
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1.2. The right of pre-emption (shuPa) is the right, which the owner of . ,
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an immovable property possesses to acquire by purchase of any immovable
property, which had been sold to another person. [1012-B]
Shri Audh Behari Singh v. Gajadhar Jaipuria, 11955) 1 SCR 70; Bishan
Singh v. Khazan Singh, 11959] SCR 878; Indira Bai v. Nand Kishore, AIR
(1991) SC 1055; Dhaninath v. Budhu, 136 PR 1894; Gobind Dayal v.
lnayatullah, (1885) ILR 7 All 775; Moo! Chandv. Ganga Jal, (1930) ILR 11
Lah 258; Radha Ballabh Haldiya v. Pushalal Agarwal, AIR (1986) Raj 88
· and Sheikh Kudratul/a v. Mohini Mohan 4 Beng., LR 134 (Cal), referred to.
Smt. Rajeshwari Devi v. Mukesh Chandra, (1966) SC Notes 403, cited.
2.1. The defendants were required to prove that _the plaintiffs after
execution of the agreement to sell, expressed their inability to purchase the
property and also after execution of the sale deed, refused to purchase the
property. [1018-F)
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2.2. The finding of fact arrived at upon consideration of the evidence on
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SMT. MATTOO DEVI v. DAMODAR LAL [BANERJEE, J. J
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record ought not to be interfered with unless there is a total perverse view A
of the matter in issue. There is no such perversity so as to attribute the
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