calcutta high court

Calcutta High Court: In an appeal challenging the order passed by the civil court granting injunction restraining the appellant from alienating, transferring, or creating any third-party interest in the suit property., a division bench comprising of Harish Tandon* and Madhuresh Prasad, JJ., while acknowledges the importance of strict compliance with Mahomedan Law regarding pre-emption, set aside the order and dismissed the application for temporary injunction.

Brief Facts

In the instant matter, the plaintiff-respondent and his brother jointly purchased a property on 30-06-2005. Respondent’s brother gifted his share to his wife and later his wife sold the property to the appellant without informing the respondent. When the appellant attempted to alter the property’s nature on 17-10-2021, respondent became aware of the sale of the property. The respondent filed a suit seeking pre-emption and a permanent injunction. The civil court vide order 27-02-2023 granted injunction against the appellant regarding the property dispute. Aggrieved by the impugned order passed by the Civil Judge, Howrah, the appellant preferred the present appeal challenging the same.

Law Point

Section 236 of the Mahomedan Law: No pre-emption right unless the claimant,

  1. Declares intent immediately upon learning of the sale (talab-i-mowasibat).

  2. Affirms the intention promptly, referring to the previous demand, in the presence of witnesses (talab-i-ishhad).

Parties’ Contentions

The appellant contended that the respondent’s delayed exercise of the right of pre-emption contradicts Section 236 of the Mahomedan Law, which requires an immediate demand upon learning of a sale.

The respondents contended that the right of pre-emption was exercised promptly upon learning about the sale. The respondent attributed the delay to the appellant’s failure to inform the respondent. It was contended that the entire pleading must be considered, not just isolated statements. The respondent denied any violation of Section 236 of the Mahomedan Law.

Court’s Analysis

The Court acknowledged the technical nature of pre-emption rights and the need for strict compliance with procedural requirements. The Court emphasised on the statutory importance of immediate and prompt actions in pre-emption cases. The Court observed that the Section 236 of the Mahomedan Law consist of two-step process, immediate demand and formal demand with witnesses. The Court stated that immediate demand is peremptory, requiring prompt action upon learning of the sale and the term “immediately” is interpreted strictly, even a short delay may be fatal.

The Court considered Lal Mahammed Sarkar v. Husain Mohammad Saha, 1924 SCC OnLine Cal 59, where it was held that short delay in making the first demand can render the pre-emption claim untenable, Abdul Gaffarkhan v. Abdul Jikar Dada Kachhi, 1953 SCC OnLine MP 6, where it was observed that the word “immediately” should be strictly interpreted and delay before making the first demand is fatal and Arjun Rahman Barbhuiya v. Haji Moshaid Ali Laskar, 1989 SCC OnLine Gau 28 and Buransab Maniyar v. Mohadinsab Maheboobsab Maniyar, 2012 SCC OnLine Kar 1066, where the Court stressed on strict compliance with pre-emption formalities and opined that hyper-technical interpretation inapplicable after valid fulfilment.

The Court observed that the trial court temporarily granted an injunction. After re-evaluation, the Court found the respondent’s claim lacks immediacy as required by Section 236 of the Mahomedan Law. The Court held that there was a prima facie delay in the respondent’s immediate demand.

Court’s Decision

The Court set aside the mandatory injunction order, dismissed the application for temporary injunction, and refrained from awarding costs.

[Md. Shahzada v. Md. Arif, 2023 SCC OnLine Cal 5716, order dated 22-12-2023]

*Judgment by Justice Harish Tandon

Advocates who appeared in this case :

Mr. Tarique Quasimuddin, Ms. Meena Shabnam, Ms. Sanchita Chaudhuri, Counsel for the Appellant

Mr. Nilanjan Bhattacharya, Mr. Aniruddha Ganduly, Mr. Aniruddha Ganguly, Mr. Sayan Sinha, Counsel for the Respondent 1 and 2

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