Law: Registration Act (XVI of 1908)

Section: 47

(a) Pre-emption Right of pre-emption could be defeated by all legitimate devices---Vendee gaining right equal to that of pre-emptor by virtue of gift deed executed before institution of suit, in respect of portion of a house, contiguous to suit house---Right of pre-emption of vendee at par with that of pre-emptor. (b) Muhammadan Law Gift---Mushaa---Gift of undivided share in property, capable of division-Gift although fasid (irregular) but not batil (void)-Such irregular gift could be perfected by subsequent partition and delivery to donee of share given to him ----Possession, delivery of-Could not be questioned by stranger to gift deed-Gift deed effective from date of execution and not from time of its registration---Registration Act (XVI of 1908), S. 47. Muhammadan Law by D. F. Mulla, 15th Edn., Ss. 150-160, p. 133; Kairum Bi and others v. Mariam Bi and another A I R 1960 Mal. 447; Kalu Beg Afzal beg and others v. Gulzar beg Lal Beg and others A I R 1946 Nag. 357; Fazal Ahmad v. Mst. Rakhi P L D 1958 Lah. 218 and Chander Singh and others v. Jamuna Prasad Singh and others A I R 1958 Pat. 193 ref. ORDER SHAH ZAMAN KHAN BABAR, J.-Malik Muhammad Ashiq and Malik Muhammad Ashraf, sons of Malik Haji Muhammad Hussain sold the suit house to Imam Bakhsh for a sale consideration of Rs. 2,500 by a registered sale-deed dated 23-3-1967. Dost Muhammad pre-empted this sale by a suit instituted on 4-5-67. Imam Bakhsh contested the suit on the ground that he had been gifted a portion of a house contiguous to the suit house by Ghulam Rasool by a deed executed on 27-4-67 and registered on 5-5-67. The pleas of the parties gave rise to as many as eight issues, including issues Nos. 2 and 5, which are assailed. Issue No. 2 is "whether the plaintiff has superior right of pre-emption?". Issue No. 5 is "Whether the defendant has improved his position, if so, with what effect?" 2. The suit was tried by Civil Judge, D. 1. Khan, who by his judgment dated 30-4-68 on his finding on issues Nos. 2 and 5 dismissed the plaintiff's suit. 3. The plaintiff's appeal was also dismissed by the District Judge, Derajat by his judgment dated 4-7-1970. 4. Dost Muhammad…