The Court observed that a claim for pre-emption cannot be sustained on the basis of Muslim Personal Law as such a right does not fall within the sphere of either marriage or inheritance governed by personal law.

The Court was hearing a Regular First Appeal filed by the legal representatives of one Mst. Jana challenging a judgment of the Principal District Judge, Budgam, whereby a suit seeking enforcement of a right to prior purchase in respect of land had been dismissed following repeal of the Jammu and Kashmir Right to Prior Purchase Act.

A Bench of Justice Sanjay Dhar observed,

“... Muslim Personal Law in India is applicable only in the matters relating to marriage and inheritance and in no other matters. Therefore, the appellants cannot claim right of prior purchase on the basis of Muslim Personal Law which does not come either under the purview of the laws relating to marriage or the laws relating to inheritance.”

Background:

The predecessor-in-interest of the appellants, Mst. Jana, instituted a suit under the Jammu and Kashmir Right to Prior Purchase Act seeking enforcement of a right of prior purchase, possession and injunction in relation to land. The suit was founded on the allegation that a sale deed executed in favour of one of the defendants violated the provisions of the Right to Prior Purchase Act.

During the pendency of the suit, the Jammu and Kashmir Right to Prior Purchase Act came to be repealed by virtue of the Jammu and Kashmir Reorganisation Act, 2019. Following repeal of the statute, the trial court dismissed the suit relying upon an earlier decision of the High Court in Mohammad Jamal Parray v. Ghulam Qadir Mir & Ors., wherein the effect of repeal of the Act on pending pre-emption claims had been considered.

Aggrieved by the dismissal of the suit, the appellants approached the High Court contending that irrespective of the repeal of the statute, the right of pre-emption continued to exist as an enforceable right under Muslim Personal Law. They further argued that the decision in Mohammad Jamal Parray did not lay down the correct legal position.

Court's Observations:

The Court first examined the pleadings contained in the plaint. It noted that the entire suit had been expressly founded upon the provisions of the Jammu and Kashmir Right to Prior Purchase Act. The title of the plaint itself disclosed that the suit had been filed under the said statute, and the plaintiff had specifically alleged that the impugned sale deed violated the provisions of that enactment.

The Court observed that in light of these pleadings, it was not open to the appellants to contend that the suit had actually been founded on a right arising independently under Muslim Personal Law. According to the Court, the plaintiff had consciously chosen to base her claim upon statutory rights created under the Right to Prior Purchase Act.

The Bench then addressed the principal submission advanced on behalf of the appellants that the right of pre-emption survived independently under Muslim Personal Law. Rejecting the contention, the Court held that Muslim Personal Law operates only in limited fields recognised by law and does not extend to rights relating to pre-emption or prior purchase.

The Court categorically observed that a claim of prior purchase cannot be brought within the scope of either marriage or inheritance and therefore cannot be sourced to Muslim Personal Law. It held that the argument advanced by the appellants was legally unsustainable and wholly misconceived.

The Court further examined the appellants' challenge to the judgment in Mohammad Jamal Parray. It noted that the said decision was based upon the law declared by the Supreme Court in Punyadeo Sharma and Others v. Kamla Devi and Others, 2022 LiveLaw (SC) 22. Referring to the binding nature of Supreme Court precedents, the Court observed that once the legal position stands settled by the Supreme Court, it becomes binding upon all courts across the country.

The Court noted that in Punyadeo Sharma, the Supreme Court held that a pre-emptor must possess the right to pre-empt not only on the date of sale and the date of institution of the suit but also on the date of the decree passed by the court of first instance. If the right ceases to exist before the decree is passed, the suit necessarily fails.

Applying that principle, the Court observed that before the trial court could pass a decree in favour of the plaintiff, the legislature had repealed the Jammu and Kashmir Right to Prior Purchase Act. Consequently, the statutory right upon which the plaintiff's claim was founded stood extinguished before adjudication of the suit.

In this regard, the Court observed,

“... Before the decree could be passed by the learned trial court in the suit filed by the plaintiff for enforcement of her right of pre-emption, the said right was abolished by the legislature by repealing the J&K Right to Prior Purchase Act. Therefore, the suit of the plaintiff was bound to fail.”

Finding no infirmity in the judgment of the Principal District Judge, Budgam, the High Court dismissed the appeal and upheld the dismissal of the suit seeking enforcement of the right of prior purchase.

Mst. Jana (Dead) Through LRs v. Assadullah Raina & Ors.

Citation: 2026 LiveLaw (JKL)

Appearances

For Appellants: N. A. Kuchai, Advocate

For Respondents: Malik Fahad-ul-Haq and Salfi Izhar, Advocates

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