Rajasthan Pre-Emption Act, 1966 – ss.3, 6, 8 , 9 and 21 – Exercise of right of Pre-emption – Limitation for – Plaintiff ’s suit for pre-emption over a transaction effected on 21.01.1974 – Three sale transactions involving the subject property had earlier taken place in 1945, 1946 and 1966 – Right in property was predicated on account of having a common portion therein – Trial Court eventually held the suit to be barred by limitation in absence of challenge to sale deed of 1966 – Upheld by first appellate court – High Court inter alia held the suit to be filed within time – On appeal, held: Right of pre-emption is a weak right – It is only exercisable for the first time when the cause of such a right arises, in a situation where the plaintiff-pre-emptor chooses to waive such right after the 1966 Act becoming operational – s.9 operates as a bar on his exercising such right on a subsequent transaction relating to the same immovable property – Impugned order set aside – Order of trial court dtd. 01.02.1988 and the first appellate court dated 30.03.1989 upheld – As the original plaintiff has not challenged the sale effected on 05.11.1966, the suit is thus barred by limitation – Limitation Act, 1963 – Article 97 – Pre-emption. Allowing the appeal, the Court
1.1 The Rajasthan Pre-Emption Act, 1966 was brought into force on 1.2.1966. In view of the rights conferred under the Act, a suit was filed by the predecessor-in-interest of respondent No.1 seeking a decree of pre-emption against the predecessor-ininterest of the appellant herein and respondent Nos. 4 to 6 herein, on 10.1.1974, which was numbered as Civil Suit No. 40/1975. The property in question is situated in a building bearing AMC No. XV/290 situated in Kayasth Mohalla, Ajmer and is predicated on account of having a common portion in the said property. The plaint stated that respondents 5 and 6 herein (original defendants
3 and 4) were owners and in possession of the part of the property which was sold to respondent No. 4 herein (the original defendant No. 2), vide sale deed dated 10.01.1974 for a consideration of Rs. 4000/-. Respondent No. 4 further sold this property to the appellant herein (original defendant No.1 being the predecessorin-interest) on 21.01.1974 once again for the same consideration. The other facts stated in the plaint are not required to be gone into nor pleaded, except that there is an allegation that the two portions were part and parcel of the same house having main entrance, lavatory and staircase in common and that no notice, as provided for under Section 8 of the Act, had been served, which mandates a notice to pre-emptors (forming part of the procedure as set out in Chapter III of the Act). The historical perspective of the right of pre-emption shows that it owes its originination to the advent of the Mohammedan rule, based on customs, which came to be accepted in various courts largely located in the north of India. The pre-emptor has been held by the judicial pronouncements to have two rights. Firstly, the inherent or primary right, which is the right to the offer of a thing about to be sold and the secondary or remedial right to follow the thing sold. It is a secondary right, which is simply a right of substitution in place of the original vendee. The pre-emptor is bound to show that he not only has a right as good as that of the vendee, but it is superior to that of the vendee; And that too at the time when the pre-emptor exercises his right. The right of pre-emption is a “very weak right” and is, thus, capable of being defeated by all legitimate methods including the claim of superior or equal right. Right to pre-emption is defined in Section 3 of the Rajasthan Pre-Emption Act, 1966. Section 6 sets out the right of persons to whom the right pre-emption accrues and it would suffice to reproduce sub-section (1) as the other sub-sections deal with different classes of persons having such right. Chapter III sets out the procedure for the exercise of the right of preemption. Section 8 under the said Chapter mandates issuance of notice. The limitation for exercise of the aforesaid right is stipulated in Section 21. Section 21 in turn refers to Article 97 of the First Schedule of the Limitation Act, 1963. The question has to be, thus, analysed in the context of a conjoint reading of Section
21 of the said Act and Article 97 of the First Schedule to the Limitation Act, 1963. The stipulation in Section 21 is that the right of pre-emption has to be exercised, in case of a sale, within one year from the date of sale and if the sale is not by a registered deed, on the purchaser taking the physical possession of any part of the property sold. Since the period has to be as per Article 97, the wordings of the Article show that it is one year from the date when the sale is registered (in case such registration takes place as is in the present case). It is this expression, which is sought to be construed by the respondent No. 1 as well as by the High Court to mean that it is a recurring right for every sale. The loss of right of pre-emption on transfer has been defined under Section
9 of the said Act. A reading of the Section shows that the loss is only occasioned, when, within two months from the date of service of the notice, the price is not tendered. However, that is the loss of the right, vis-à-vis the transaction in question. The moot point is whether such a right of pre-emption is a recurring right, i.e. every time the property is sold, the right would rearise, in a case the pre-empting plaintiff himself has chosen not to exercise such right over the subject immovable property when sold to another purchaser earlier. [Paras 3, 12, 14, 16 and 17][468-G-H; 469-AE; 473-D-H; 474-A-H; 476-A-H; 47-A-D]
1.2 It would not be appropriate or permissible to adopt legal reasoning making such a weak right, some kind of a right in perpetuity arising to a plaintiff every time there is a subsequent transaction or sale once the plaintiff has waived his right or preemption over the subject immovable property. The loss of right mandated under Section 9 of the Act is absolute. A plain reading of the said provision does not reveal that such right can re-arise to the person who waives his right of pre-emption in an earlier transaction. To do so would mean that a person, whether not having the means or for any other reason, does not exercise the right of pre-emption and yet he, even after decades, can exercise such a right. This would create, if one may say, some sort of a cloud on a title and uncertainty as a subsequent purchaser would not know, when he wants to sell the property, whether he can complete the transaction or not or whether a co-sharer will jump into the scene. This is not contemplated in the 1966 Act. This is bound to have an effect on the price offered by a purchaser at that time because he would have an impression of uncertainty about the proposed transaction. This Court is in agreement with the consistent view taken in the judgments earlier of the Rajasthan High Court. So far as the case of Kutina Bibi is concerned, the factual basis of that decision does not fit with the legal controversy involved in this proceeding. [Paras 18, 19] [477-D-H; 478-A-C]
Indira Bai v. Nand Kishore (1990) 4 SCC 668 : [1990]
1 Suppl. SCR 349 – referred to.
1.3 The right of pre-emption is only exercisable for the first time when the cause of such a right arises, in a situation where the plaintiff-pre-emptor chooses to waive such right after the 1966 Act becoming operational. Section 9 of the said Act operates as a bar on his exercising such right on a subsequent transaction relating to the same immovable property. The result is the impugned order is set aside and the order of the trial court dated 01.02.1988 and the first appellate court dated 30.03.1989 are upheld. As the original plaintiff has not challenged the sale effected by him on 5 th November, 1966, the suit of respondent No. 1 (original plaintiff, now represented by his legal representatives) is thus barred by limitation. [Paras 22, 23][479-A-D]
Kutina Bibi and another v. Vaiukuntha Chandra Dutta and others AIR 1961 Assam 1 – distinguished.
Barasat Eye Hospital & Ors. v. Kaustabh Mondal 2019 SCC Online SC 1351; Bishan Singh v. Khazan Singh AIR 1958 SC 838:[1959] SCR 878 – referred to.
Gobind Dayal v. Inayatullah (1885) ILR 7 All 775, 809; Prahlad Kumar v. Kishan Chand & Ors. 2009 (3) RLW 2441; Mangti Ram v. Onkar Sahai (1994) 1 RLW 55; Ghulam Jilani v. Hassan Khan & Ors. PLR 1905
(Vol.VI) 338; Ghanshyam v. Chand Bihari & Ors.
(2008) 2 RLW (Rev) 1011; Rukmani Devi (Smt.) v. Prabhu Marayan & Ors. (2007) 4 RLW 2882 –
referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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