TMI Blog1960 (8) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... id as earnest money and the other in regard to Survey No. 15/1 for ₹ 8,500 out of which ₹ 500 was paid as earnest money. On April 16, 1943, the vendors executed a registered sale deed in regard to Survey No,%. 5, 14 and 16 and the balance of the price was paid before the Registrar. On April 22, 1943, the vendors executed a lease of Survey No. 15/1 for 14 years in favour of Kisanlal and Sitaram who were defendant Nos. 2 and 3 in the suit and are respondents Nos. 2 and 3 in this appeal. On April 24, 1943, the vendors executed a fresh agreement of sale in respect of the same field which according to the agreement was to be diverted to non- agricultural purposes and thereafter a sale deed was to be executed when it was so diverted. The appellant was to pay the costs of the diversion as well as the premium. In pursuance of this agreement the vendors applied to the Deputy Commissioner, Akola, on August 12, 1943, for diversion under s. 58 of the Code and sanction was accorded on January 22, 1944, subject to payment of premium of ₹ 9,222 and other conditions. The appellant's case is that as agreed the vendors were paid this money for deposit and it was deposited in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ohammedan rule of preemption was, according to one view, in force in the province of Berar and it continued to be so till the Berar Land Revenue Code of 1896 came into operation as from January 1, 1897. On the other hand, according to the view of two writers on the Berar Land Revenue Code of 1896, the Mohammedan law origin of the right of pre-emption does not seem to be well-founded. In the annotation of the Berar Land Revenue Code of 1896 Mr. E. S. Reynolds wrote in 1896 that although the right of pre- emption in regard to agricultural land on occupancy tenures bad been recognised in Berar the right was not based on Mohammedan law nor did it appear to be ancient and immemorial custom. It seems to have been evolved from a ruling of the Resident acting as the High Court based on r. 10 of the Sub-tenancy Rules. According to Hirurkar (Land Revenue Code, pp. 126-127) also the right of pre-emption was not based on the Mohammedan law and did not originally exist in Berar. It seems to have been brought from the land laws of the Punjab or the North West Provinces. In the Berar Settlement Rules and Berar Sub-tenancy Rules of 1866 the right of pre-emption attached to relinquishment of shares ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale deed had not been executed the right of pre-emption could not be defeated by the device that the vendors and the appellant adopted. According to s. 2 of the Transfer of Property Act which at the relevant time was in operation in Berar s. 54 is not one of the sections within ch. 2 of that Act and therefore it overrides Mohammedan law and the provisions of that section, being exhaustive as to modes of transfer, govern all sales in that province and no title passes on a sale except as provided in that section. Sale is there defined as transfer of ownership for a price paid or promised or part paid or part promised and in the case of sale of tangible immoveable property of ₹ 100/- or more sale can only be made by a registered instrument. That is clear from the language of the section itself where it is stated :- Section 54 Sale how made:- Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument It was held by the Privy Council in Immudipattam Thirugnana S. O. Kondema Naik v. Peria Dorasami (1900) 28 I.A. 46.which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is, that you are to look at the intention of the parties in determining what system of law was to be taken as applying and what was to be taken to be.the date of the sale with reference to which the ceremonies were performed . But it was argued for the respondents that the Privy Council had not only approved the observation of Sir John Edge, C. J., in Begum v. Mohammad Yakub(1894) I.L.R. 16 All. 344 but has also approved the view of the Calcutta High Court in Jadu Lal Sahu v. Janki Koer (1908) I.L.R. 35 Cal. 575. That was a case from Bihar where the right of pre-emption under Mohammedan Law was judicially recognised in regard to Hindus also. The question whether the sale which was to be preempted was the one under s. 54 of the Transfer of Property Act or the one under the principles of Mohmmedan Law does not seem to have been the point raised in that case. It may be pointed out that both in the case which went to the Privy Council (Sitaram Bhaurao Deshmukh v. Jaiul Hasan Sirajul Khan (1921) 48 I.A. 475 and the Calcutta case Jadulal Sahu v. Janki Koer (2)) sale deeds were executed and registered before the suits to enforce pre-emption were filed. In the latter case the kabala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vendee and if the vendee took nothing under the sale the preemptor can take nothing either; and it follows that if the vendee could not oust the vendor, the preemptor could not do so either, because in both cases the question would necessarily arise whether the sale was valid in the sense of transferring ownership. Again, if notwithstanding a pre- emptive suit such as this, the so-called vendor, who has executed an invalid sale which does not in law divest him of the proprietary right, subsequently executes a valid and registered sale-deed in favour of a co-sharer other than the preemptor or in favour of a purchaser for value without notice of the so-called contract for sale it is difficult to conceive how the preemptor, who has succeeded in a suit like the present, could resist the claim of such purchaser for possession of the property . Under s. 54 of the Transfer of Property Act a contract for sale does not of itself create any interest in or charge on immoveable property and consequently the contract in the instant case created no interest in favour of the vendee and the proprietary title did not validly pass from the vendors to the vendee and until that was completed no r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 1, 1944; but respondent Sridhar brought the suit not on the cause of action arising on the sale dated February 1, 1944, but on the transaction of April 10, 1943, coupled with that of April 24, 1943, which being mere contracts of sale created no interest in the vendee and there was no right of pre-emption in respondent No. I which could be enforced under the Code. Mr. Chatterji urged that it did not matter if the sale took place later and the suit was brought earlier but the suit as laid down was one to pre-empt a sale of April 1943 when, as a matter of fact, no sale had taken place. If respondent Sridhar had based his right of pre-emption on the basis of the sale of February 1, 1944, the appellant would have taken such defence as the law allowed him. The defence in regard to the conversion of the land from agricultural into non- agricultural site which negatives the right of pre-emption would then have become a very important issue in the case and the appellant would have adduced proper proof in regard to it. The right of pre-emption is a weak right and is not looked upon with favour by courts and therefore the courts could not go out of their way to help the pre-emptor. In our o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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