Suresh Chand and Anr. vs Suresh Chander (D) Thr Lrs. and Ors.

1.2 Section 6(1) specifies the persons to whom the right of pre-emption accrues. Under Section 6(1)(ii), a right of pre-emption accrues in respect of an immovable property to owners of other immovable property with a stair-case, entrance or other right or amenity common to such property and the property that is transferred. Where a right of pre-emption enures to the benefit of a person under the provisions of s. 6(1)(ii), a consequence emanates in terms of s. 5(1)(c). The effect of s. 5(1)(c) is that a right of pre-emption does not accrue, on a transfer to any person mentioned in s. 6, to any person who has an equal or inferior right of pre-emption. Where a transfer is to any of the persons mentioned u/s. 6, the right of pre-emption to the claimant accrues only if the claimant has a superior right. The right of pre-emption, as Section 4 indicates, is subject to the provisions of Section 5. Consequently, where any of the provisions of Section

5 come into operation, the right of pre-emption would not be available. [Paras 12, 13][898-C, G-H; 899 A-C]

1.3 The right of pre-emption is a preferential right to acquire the property by substituting the original vendee. The transfer or sale of an immovable property is a condition precedent to the enforceability of the right. The right of pre-emption is attached to the property and only on that footing can it be enforced against the vendee. Though the right is recognised by law, yet it can be rendered imperfect by the vendor when he transfers the property to another person who also has a superior right to the pre-emptor. [Para 15]

1.4 In the instant case, it has come on the record before the trial court that DC, the predecessor of the appellants, had a pre-existing right in respect of the amenity of the common courtyard or sahan. This was admitted in the written statement filed by BP in the Suit. PW 1 during his cross-examination was confronted with the above written statement. What emerges from the above admission is that DC had a right in common in respect of the amenity of the courtyard. During the course of proceedings before this Court, it was admitted that the courtyard was shared between BP and DC. Therefore, both their rights would fall within the ambit of the provisions of Section 6(1)(ii). In terms of the provisions of s. 5(1)(c), the right of pre-emption would not accrue to any person with an equal or inferior right of pre-emption. KL executed a sale deed in favour of DC who within the meaning of s. 6(1)(ii) had a right of pre-emption. But the right of pre-emption of DC was inferior to the right which was claimed by BP as the brother of KL, DC right u/s. 6(ii) was subject to a superior right of BP by virtue of s. 6(3). Section 6(3) states that even among persons of the same class, the nearer in relationship to the person whose property is transferred excludes the more remote. [Para 16][900 D-H; 901 A-C]

1.5 It was submitted that the comma appearing in s. 5(1)(c) should be read as “or” and the Section must be interpreted disjunctive; that s. 5(1)(c) should be read as “the right of preemption shall not accrue... on a transfer to any of the persons mentioned in s. 6” or “the right of pre-emption shall not accrue... to any person who has an equal or inferior right of pre-emption”; that the plaintiff-BP would not be covered by the first part as the first defendant-DC would be covered by s. 6(1)(ii) and the second part would not apply to the plaintiff as he only has an inferior right of pre-emption against the defendant; that the plaintiff cannot claim any right of pre-emption where a transfer is affected by a person who is covered by any of the clauses of Section 6. However, the disjunctive interpretation of Section 5(1)(c) as suggested cannot be countenanced in view of the plain text of the provision. Reading the provision in a manner as suggested would amount to an exercise of legislative re-drafting. This is impermissible. [Para 17][901 B-F]

1.6 The two segments of s.5(1)(c) are that the first segment contains the words “on a transfer to any of the persons mentioned in s. 6; and the second segment comprises of the words “to any person who has an equal or inferior right of pre-emption”. Both segments are separated by a comma and refer to two separate sets of persons. In the first segment the expression “any of the persons” refers to the vendee. In the second segment, the expression “any person” refers to the claimant. In the instant case, the plaintiff-BP had a superior right of pre-emption by virtue of the provisions of Section 6(3) since he was the brother of the second defendant. DC has an inferior right of pre-emption as compared to BP. Hence his claim cannot prevail over the superior right of pre-emption of BP. The concurrent findings of the trial judge, first appellate court and in second appeal, have proceeded on a correct interpretation of the provisions. [Paras 18, 19] [901 F-H; 902 A-C]

Bishan Singh v. Khazan Singh AIR 1958 SC 838;

Radhakisan Laxminarayan Toshniwal v. Shridhar

Ramchandra Alshi AIR 1960 SC 1368 – referred to.