Bhagwati Prasad Sah & Ors Vs.
Bhagwati Prasad Sah & ANR [1963] INSC 205 (10 October 1963)
10/10/1963
ACT:
pre-emption--Muhammadan Law--Nature of --If
right could be exercised in respect of lease hold interest--Land sold with
house thereon--If pre-emption allowable regarding house only--Constitutionality
of law of pre-emption--Constitution of India, Art. 19(1) (g).
HEADNOTE:
One Chathilal Sah of Sahebganj, Bihar, was
the owner of a house and two golas which stood on a rent-paying land and he
executed a will bequeathing the said property to his daughter and nephew in
equal shares. In 1940 the nephew sold one half of the property to respondent
No. 1 who two years later acquired under a patta some adjoining lands. In 1949
respondent No. 3 alleging to be the husband of the daughter sold the remaining
half of the property to appellants 1 and 2. In December 1949 respondent filed a
title suit for declaration that he has a right to pre-empt the property
purchased by appellants 1 and 2 and for directing them to transfer the same to
him. The trial court dismissed the suit but in the appeal before the
Subordinate Judge he succeeded and the High Court dismissed the appeal
presented by the appellant. The present appeal is by special leave granted by
this Court.
Before this Court four contentions were
raised by the appellants, two of which being pure questions of fact and not
having been raised in the courts below were not considered by this Court. The
questions of law raised were (a) the right of pre-emption infringes the
fundamental right of a citizen under Art. 19 (1) (f) of the Constitution and
(b) there is no right of pre-emption in respect of leasehold interest and
therefore there cannot be a right of pre- emption in respect of a house
standing on such land.
Held: (i) The law of pre-emption vis-a-vis
co-sharers does not infringe the fundamental right conferred under Art.
19(1) (f) of the Constitution.
Bahu Ram v. Baij Nath, [1962] Supp. 3 S.C.R.
724 and Nuri Mian v.Ambica Singh, (1917) I.L.R. 44 Cal. 47.
(ii) A right of pre-emption is annexed to
full ownership of property of co-sharers. It is not attached to property held
on subordinate tenure, such as lease etc. It is an incident of the co-sharer's
property operating both as a right and as a burden in different situations. It
is a right of substitution taking in the entire bargain. It must take the whole
or nothing. It does not matter if the inability to take the house arises out of
a voluntary act or out of a legal limitation inherent in the nature of the
property transferred. It is reciprocal in operation, that is, if the situation
was reversed and the vendor became the pre-emptor, he should 106 be in a
position to pre-empt the co-sharers' whole bargains.
The two doctrines which may, for convenience
be referred to as "entire bargain" and "reciprocity" cannot
operate unless both the co-sharers are full owners of their respective
properties. Akar or a house standing on a freehold land is subject to the right
of preemption, but a house on a leasehold land stands on a different footing.
As there is no right of pre-emption in respect of a land on subordinate tenure
the right of pre-emption cannot be enforced against the house either, as the
pre-emptor cannot be substituted for the entire bargain. The right must fail also
on the ground that the super-structure disannexed from the land would be
movable property and it is well settled that the right of pre-emption cannot be
enforced in respect of movables.
Case law reviewed.
Bishan Singh v. Khazan Singh, [1959] S.C.R.
878, Goblad Dayal v. Inayatullah, (1885) I.L.R. 7 All 775, Sakina Bibi v.
Amiran, (1888) I.L.R. 10 All 472, Dashrathlal v. Bai Dhondubai, A.I.R. (1941)
Bom. 262, Shri Audh Behari Singh v.
Gajadhar Jaipuria, [1955] 1 S.C.R. 70, Mr.
Bibi Saleha v. Amiruddin(1929)I.L.R. 8 Pat. 251, Baboo Ram Golam Singh v. Nursingh
Sabey, (1876) 25 W.R. 43 Mohammad Jamil v. Khub Lal Raut, (1921) 5 Pat. L.J.
740, Phul Mohammad Khan v. Qazi Kutubuddin, A.I.R. 1937 Pat. 578, Mooroof ly
Ram v. Baboo Hari Ram, (1867) 8 W.R. 106, Rameshwar Lal v. Ramdeo Jha, A.I.R.
1957 Pat. 695, Nathuni Ram v. Gopinath, A.I.R. 1962 Pat. 226 (F.B), Zahur v.
Nur Ali, (1880) I.L.R. 2 All 99 and Chariter Dusadh v. Bhagwati Pandey A.I.R.
1934 Pat. 596.
Per Raghubar Dayal J--While agreeing with the
majority judgment on other points, no opinion is expressed on the point whether
in certain circumstances the pre-emptor can or cannot pre-empt part of the
property sold. There have been cases where partial pre-emption has been
allowed.
Zainab Bibi v. Umar Hayat Khan, (1936) All.
L.J. 456 and Bishan Singh v. Khazan Singh, [1959] S.C.R. 878.
Sale of leasehold interest in land is not
pre-emptible and that the super-structure of the house is also not pre-
emptible and therefore the plaintiff-pre-emptor cannot pre- empt the property
sold. The appeal should be allowed.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 672 of 1962.
Appeal by special leave from the judgment and
order dated December 10, 1958, of the Patna High Court in Appeal from Appellate
Decree No. 716 of 1954.
S.P. Varma, for the appellants.
Sarjoo Prasad and Mohan Behari Lai, for the
respondents.
107 October 10, 1963. The Judgment of P.B.
Gajendragadkar, K. Subba Rao, K.N. Wanchoo and J.C. Shah JJ., was delivered by
Subba Rao J. Raghubar Dayal J. delivered a separate Opinion.
SUBBA RAO J.--This appeal by special leave is
directed against the judgment of the High Court of' Judicature at Patna and
raises mainly the question of the scope of the right of pre-emption under the
Mohamedan law as applied by custom in Bihar.
The facts lie in a small compass. On June 17,
1930, Chathilal Sah of Sahebganj, who was the owner of a house and two golas
bearing holdings Nos. 184 and 185 situated in mahalla Sahebganj, executed a
will bequeathing the said property to his daughter Parbati Kuer and nephew Ram
Swarup in equal shares. Under the said will Ram Swarup was to get the entire
property in case Parbati Kuer died unmarried or issueless. On July 18, 1940,
Ram Swarup sold one-half of the said property to the plaintiff-respondent 1. On
July 27, 1942, the plaintiff-respondent 1 acquired under a patta some lands
adjoining the said property. On October 10, 1949, defendant 3 (respondent 3
herein), alleging to be the husband of the said Parbati Kuer, sold the
remaining half of the disputed property to defendants 1 and 2. It may be
mentioned at this stage that the land on which the said house and golas stand
is Dih-Basgit Lagani (rent-paying) land. On December 10, 1949, respondent 1
filed Title Suit No. 214 of 1949 in the First Court of the Munsif at Chapra for
a declaration that he has a right to pre-empt the property purchased by
appellants 1 and 2 and for directing them to transfer the said property to him.
To that suit, the first appellant and his two sons were made defendants 1, 2
and 2A and their vendor was made defendant 3. The defendants contested the
suit, inter alia, on the ground that the ceremonies of pre-emption were not
performed and that under the Mohamedan, law the plaintiff was not entitled to
pre-emption, as the land on which the said house and golas stood was
"rent-paying" land. The learned Munsif dismissed the suit. But, on
appeal the Subordinate 108 Judge of Chapra allowed the appeal and granted a
decree for pre-emption in favour of the plaintiff-respondent 1. On appeal, the
High Court agreed with the Subordinate Judge and dismissed the appeal.
Defendants 1, 2 and 2A have preferred the present appeal by 'special leave
against the Judgment of the High Court.
Mr. Varma, learned counsel for the
appellants, raised before us the following four points: (1) the right of pre-
emption infringes the fundamental right of a citizen under Art. 19(1) (f) of
the Constitution and it is not saved by cl. (5) thereof: (2) the first
respondent failed to establish his title and, therefore, his suit should have
been dismissed on that ground; (3) the ceremonies of pre- emption were
performed only on October 11, 1949 whereas the sale deed in favour of the
appellants was executed and registered on October 20, 1949 and, as the said performance
of the ceremonies was premature, they having been performed before the sale was
completed, the right of pre-emption could not be enforced; and (4) there is no
right of pre- emption in respect of leasehold interest and, therefore, there
cannot be a right of pre-emption in respect of a house standing on such land,
as Mohamedan law does not recognize a right of pre-emption in mere
super-structure.
Mr. Sarjoo Prasad, learned counsel for the
respondents controverts the correctness of the said propositions. We shall deal
with his arguments in the course of the judgment.
To appreciate the first contention, some
dates may be recapitulated. Respondent 1 purchased one-half share of the
property by a sale deed dated July 18, 1940. Appellants 1 and 2 purchased the
other half of the property on October 10, 1949. The suit was filed on December
10, 1949. The Munsif dismissed the suit on April 14, 1953. The Constitution
came into force on January 26, 1950. The appellants had no fundamental right on
the date when they purchased the property. But it is said that under the law of
pre-emption a person who seeks the assistance of a court with a view to enforce
the right of pre-emption is bound to establish that the 109 right existed on
the date of the sale, on the date of the institution of the suit, and also on
the date of the decree of the primary court--See Nuri Mian v. Ambica Singh(1)
and, therefore, the restriction on the appellants' fundamental right to acquire
the property was not finally imposed before the Constitution, but became
crystallized into an irrevocable restriction only at the time of the passing of
the decree which was subsequent to the coming into force of the Constitution.
We need not express our opinion on this question, as it has been held by this
Court in Bhau Ram v. Baij Nath(2) that a right of pre-emption vis-a-vis co-
sharers was not an unreasonable restriction on the fundamental right of a
person to acquire, hold and dispose of property. But learned counsel contends
that decision should be confined to a case of co-sharers who are related to
each other, and should not be extended to co-sharers who are not related to
each other. Reliance is placed upon the following observations in that judgment
found at p. 1483:
"If an outsider is introduced as a co-
sharer in a property it will make common management extremely difficult and
destroy the benefits of ownership in common." This sentence does not, in
our view, sustain the distinction sought to be made by the learned counsel
between co-sharers who are relatives and co-sharers, who are not relatives.
The word "outsider" in the said
passage can only mean a person who is not a co-sharer. The judgment of this
Court finally settled the question as between co-sharers.
Following the decision we hold that the law
of pre-emption vis-a-vis co-sharers does not infringe the fundamental right
conferred under Art. 19 (1) (f) of the Constitution.
The second question, namely, that of the
plaintiff's title does not call for consideration by us. It was not raised in
the courts below, and it being a pure question of fact, we cannot allow it to
be raised for the first time before us. We, therefore, disallow it.
(1) [1917] I.L.R. 44 Cal. 47. (2) A.I.R. 1962
S.C. 1476.
110 The next point raised by the learned
counsel is that the ceremonies of pre-emption performed in this case were
premature, as the sale was completed only on October 20, 1949 whereas the
ceremonies were performed on October 11, 1949. This Court, by a majority, held
in Ram Saran v. Domini Kuer(1) that the registration under the Registration Act
is not complete till the document to be registered has been copied out in the
records of the Registration Office as provided in s. 61 of that Act. Learned
counsel contends that a perusal of the sale deed dated October 10, 1949, ex
facie shows that it was copied only on October 20, 1949.
The question as to when a document was copied
out in the concerned register is certainly a question of fact. The argument was
not raised either before the trial court or before the first appellate court.
No issue was framed on the point. It was raised for the first time before the
High Court. The learned Judges of the High Court pointed out that if the
appellants wanted to take advantage of the said point, it was their duty to have
raised it either in the trial court or in the first appellate court and to have
adduced evidence by calling for the register from the registration department
to show on what date the actual copying of the record was made under s. 61 of
the Registration Act. In the circumstances, the learned Judges refused to allow
the appellants to raise the point. The High Court, in our opinion, was
certainly right in disallowing the appellants from raising the question of fact
for the first time in second appeal. If the plea had been taken at the earliest
point of time, the respondents might have had many defences and might have
explained the various dates found on the documents. We cannot allow the
appellants to raise the said plea.
Now we come to the substantial point raised
in the appeal. The right of pre-emption is sought to be enforced in respect of
a rent-paying land with a house thereon.
Learned counsel for the appellants contends
that the right of pre-emption does not arise (1) A.I.R. 1961 S.C. 1747.
111 on the sale of a leasehold interest in
land and that in the absence of such a right there cannot be a right of pre-
emption in respect of the super-structure alone. Learned counsel for the
respondents, on the other hand, contends that under Mohamedan law the right of
pre-emption exists in the case of akar i.e., a house or mansion, to enable the
co-sharer to have peaceful enjoyment thereof and that the fact that there is no
right of pre-emption in respect of a leasehold interest in land does not in any
way detract from that right. He further contends that whatever might have been
the strict incidents of the right of pre-emption under Mohamedan law, this
Court cannot ignore the modern evolution of law recognizing the transferability
and heritability of leasehold interest in land.
Before we consider the problem thus presented
for our decision, it would be convenient at the outset to notice certain
general principles relevant to the present enquiry.
It has not been disputed that Hindus in the
Province of Bihar came to adopt the Mohamedan law of pre-emption as a custom.
This was because under the Muslim rule the law of pre-emption under the
Mohamedan law was administered as a rule of common law of the land in those
parts of the country which came under their domination. We must, therefore,.
look to Mohamedan law to ascertain the
incidents of the right of pre-emption unless it is established in a particular
case that by custom the said law has been modified to any extent. Being a
customary law, it is not permissible for courts to extend the custom beyond the
limits within which upto now it has been recognized. The concept of
rationalization is out of place in the ascertainment of the customary incidents
of the right of pre-emption. This Court in Bishan Singh v. Khazan Singh(1)
considered the law on the subject and laid down the propositions flowing from
the discussion. The following propositions are relevant to the present enquiry:
(1) The right of pre-emption is simply a right of sub- (1) [1959] S.C.R. 8 78.
112 situation, but not of re-purchase i.e.,
the pre-emptor takes the entire bargain and steps into the shoes of the
original vendee; (2) it is a right to acquire the whole of the property sold
and not a share of it; and (3) the right being a very weak right, it can be
defeated by all legitimate methods, such a.s the vendee allowing the claimant
of a superior or equal right being substituted in his place. It is, therefore,
settled law that the pre-emptor must take the entire bargain: he cannot split
up the bargain and claim to be substituted in respect of a portion of it either
on the ground that he does not require a part of it or for the reason that he
is entitled to claim pre-emption only in respect of a part of it. Further, the
right being a weak one, a court need not be astute to rationalize the doctrine
so as to make it fit into modern trends of property law.
Indeed, it should be reluctant to extend it
beyond the incidents clearly recognized by Mohamedan law or by custom.
With this background let us now turn to the
question that arises in this case. The subject can conveniently be considered
under three heads: the pre-emptor; (ii) the vendor; and (iii) the property in
respect of which the right is claimed. In Baillie's "Digest of Moohummudan
Law" the following passage appears at p. 478:
"When it is said that akar (such as
mansions, vine-yards and other kinds of land) are proper objects of the right
of pre- emption, it is by virtue of a right of milk, or ownership, that they
are so." Mahmood 3. in Gobind Dayal v. Inayatullah(1) observed at p. 779
thus:
"pre-emption is a right which the owner
of certain immovable property possesses, as such, for the quiet enjoyment of
that immovable property, to obtain, in substitution for the buyer, proprietary
possession of certain other immovable property, not his own, on such terms as
these 113 on which such latter immovable property is sold to another
person." The same learned Judge in Sakina Bibi v.
Amiran(1) states that in the pre-emptive
tenement (the tenement by the ownership of which the pre-emptor wants to
exercise his right of pre-emption ), the pre-emptor should have vested
ownership and not a mere expectancy of inheritance or a reversionary right, or
any other kind of contingent right, or any interest which falls short of full
ownership. Beaumont C.J. in Dashrathlal v.
Bai Dhondubai(2), after considering the law
on the subject, accepted the view that the custom of preemption only exists as
between free holders, that is to say neighbouring lands in respect whereof the
custom is claimed to apply must be freehold and that the land sought to be
pre-empted must also be free hold. This Court, in Shri Audh Bihari Singh v.
Gajadhar Jaipuria(3), has laid down the correct legal position thus:
"........the benefit as well as the burden
of the right of pre-emption run with the land and can be enforced by or against
the owner of the land for the time being although the right of the pre-emptor
does not amount to an interest in the land itself." This legal requirement
of the full ownership of the pre-emptor may be traced either to the fact that
"in ancient times Mohamedan law did hot recognize leases although it
recognized hire of|and for the purpose of user, or to the circumstance that the
right was conferred to enable the pre-emptor to prevent an undesirable person
from becoming his neighbour" which would not be the case if he was only a
temporary occupant of the property in respect whereof the right arose. Whatever
may be the reason, it may safely be held now that the pre-emptor must be the
owner of the property in respect whereof he claims the right of pre-emption.
(1) (1888)I.L.R.10 All. 472, 477. (2) A.I.R.
1941 Bom.262.
(3) [1955] 1 S.C.R. 70, 80.
1 SCI/64--8 114 The next question, namely,
the quantum of interest which the vender shall possess in the land sought to be
pre-empted depends upon the doctrine of reciprocity. Unless the land in respect
of which the custom is claimed and the land sought to be pre empted are
freeholds, the principle of reciprocity will be defeated..To illustrate:
"A" has full ownership in a land in respect of which he claims the
right of pre-emption the co-sharer vendor has only a leasehold interest in
respect of the land sought to be pre-empted;
if the pre-emptor had sold the land earlier,
the vendor having only a leasehold interest in his land, could not have claimed
the right of pre-emption in respect of his land, for he had no full ownership
in the land. The absence of this reciprocity gives an advantage to one of the
sharers which the Mohamedan law does not permit. This doctrine of reciprocity
has been succinctly stated by Mahmood J. in Gobind Dayal v. Inavatullah(1) in
the passage we have extracted earlier. In Mt. Bibi Saleha v. Amiruddin(2) the
said doctrine was restated.
It was held therein that a mukarraridar
holding under a co-sharer had no right to pre- empt as against another
co-sharer and as a mukarraridar could not claim pre-emption, the co-sharer on
the doctrine of reciprocity, which is well understood in the Mohamedan law,
could not claim pre-emption against the mukarraridar. A Full Bench of the
Bombay High Court in Deshrathlal v. Bai Dhondubai(3) has given its approval to
the said principle.
This Court in Shri Audh Behari Singh v. Gajadhar
Jaipuria(4) succinctly put the legal position in the following words:
"The crux of the whole thing is that the
benefit as well as the burden of the right of pre-emption run with the land and
can be enforced by or against the owner of the land for the time being although
the right of the pre-emptor does not amount to an interest in the land
itself." That leasehold interest is not subject to the law of pre-emption
has been well settled: see Baboo Ram (1) [1885] I.L.R. 7 All. 775. (2) [1929]
I.S.R. 8 pat 251.
(2) A.I.R. 1941 Bom. 262. (4) [1955] 1 S.C.R.
70,80.
115 Golam Singh v. Nursingh Sabey(1),
Mohammad Jamil v. Khub Lal Raut(2); Sakina Bibi v.
Amiran(3); Phul Mohammad Khan v. Qazi
Kutubuddin(4); Moorooly Ram v. Baboo Hari Ram(5); Rameshwar Lal v. Ramdeo
Jha(6); and Nathuni Ram v. Gopinath(7). Indeed this legal position has not been
controverted by learned counsel for the respondents.
Now let us address ourselves to the main
contention of the respondents, namely, that the right of pre-emption exists in
the Mohamedan law in respect of akar which includes a building, that the main
purpose intended to be served by the said right is to prevent an undesirable
person from becoming the sharer of the house and that, therefore, it would be
unrealistic to negative that right in the case of a house on the ground that
the land on which the house stands is a leasehold interest. Reliance is placed
upon the following passage in Charles Hamilton's "The Hedaya", 2nd
Edn., at p. 558:-- "It is observed, in the abridgment of Kadooree, that
Shaffa does not affect even a house or trees when sold separately from the
ground on which they stand. This opinion (which is also mentioned in the
Mabsoot) is approved; for as buildings and trees are not of a permanent nature,
they are therefore of the class of movables." Relying upon this passage it
is contended that, as in the present case the house was sold along with the
ground, the doctrine of "Shaffa" applies to the house. But this
passage must be understood on the assumption that the right of pre- emption
exists in respect of the land on which the house stands. In Baillie's
"Digest of Moohummudan Law", the legal position is made clear.
Therein the author says at pp. 479- 480:
"When a person has purchased a palm-
tree to cut it down, or when he has purchased it absolutely, there is no right
of pre- emption in it. But (1) [1876] 25 W.R. 43. (2) [1921] 5 Pat. L.J. 740.
(3)[1888] I.L.R. 10 All. 472, 477. (4) A.I.R.
1937 Pat. 578.
(5) [1867] 8 W.R.106. (6) A.I.R. 1957 Pat.
695.
(7) A.I.R. 1962 Pat. 226 (F.B.) 116 if it be
purchased with its roots and the ground on which it stands, it is liable to the
right. The rule is the same with regard to buildings purchased for removal, and
the same buildings purchased with their foundations;
and there is no preemption in the former
case, while there is in the latter." This passage indicates that a
building sold as a superstructure is not subject to the right of pre-emption,
for it would be in effect a sale of a movable. Unless the house is sold with
its foundations, that is to say with the land on which it stands, there is no
right of pre-emption in regard thereto. Though it may be said that in the
present case the house was sold with its foundations, the same principle will
have to be applied, for the right of pre- emption cannot be invoked in the case
of a leasehold interest. In effect and substance the right is sought to be
invoked in the case of the building decors the foundations which the law does
not permit. Reliance is placed upon the proposition found in para. 370 of
Wilson's Anglo-Muhammadan Law, which reads:
"If a house is sold apart from the
ground on which it stands with a view to being pulled down, so that it is in
fact a sale of the materials, no right of pre-emption arises with respect to
it. If it is sold for occupation as a house, then preemption can be claimed on
the ground of vicinage by the owner of any adjoining land or house (and perhaps
by the owner of the site itself, supposing him to be a different person from
the vendor of the house, even though he should happen to own no land except
that covered by the house)." It is said that the words in the brackets
conceding the right of the owner of a site to pre-empt the house sold as a
house indicates that the real principle is whether the house is sold as a
habitate or only as materials and that in the former case irrespective of the
ownership of the land or the existence of the right of pre-emption in respect
thereof, the sale of the house can be pre-empted. The opening word 117 of the
passage, namely, "perhaps", shows that the author himself is not sure
of the legal position. That apart, the illustration only deals with a land in
respect of which there can be a right of pre-emption, i.e., the owner of the
land has a freehold interest therein. Strong reliance is placed upon the decision
of a Division Bench of the Allahabad High Court in Zahur v. Nur Ali(1). There,
a dwelling house was sold as a house to be inhabited as it stood with the same
right of occupation as the vendor had enjoyed, but without the ownership of the
site. It was held that the right of pre-emption under the Mohamedan law
attached to such house. The judgment is not a considered one. The learned
Judges observed at p. 100 thus:
"The seller not only sold the materials
of the house, but such interest as he possessed as an occupier of the soil. The
house was sold as a house to be inhabited on the spot with the same right of
occupation as the seller had enjoyed.'' The learned Judges distinguished the
texts cited on the ground that they applied only to the sale of the materials
of a house or a house capable of and intended to be removed from its site. This
judgment no doubt supports the contention of learned counsel for the
respondents; but the learned Judges have not considered the well settled
principle that there cannot be a right of pre-emption in respect of a land over
which the vendor has no full ownership. The decision suffers from the infirmity
that the said well settled principle has escaped the attention of the court.
Reliance is also placed on the decision of a Division Bench of the Patna High
Court in Chariter Dusadh v. Bhagwati Pandey(2). There, the question was whether
the pre-emptor had the milkiyat or ownership in the property on account of
which he claimed the right of pre-emption. The pre-emptor was birtdar though he
was described as a tenant in the Record of-Rights for a particular purpose. The
court held (1) (1880)I.L.R. 2 All. 99. (2) A.I.R. 1934 Pat. 596.
118 that he was a full owner. This decision
does not really support the respondents. There is a direct decision of a Full
Bench of the Patna High Court on the question now raised, in Nathuni Ram v.
Gopinath(1). There, as here, a right of pre-emption was claimed in respect of a
house which stood on a leasehold land. After a full discussion of the subject,
Choudhary J., speaking for the Full Bench, came to the following decision, at
p. 229:
"On a careful consideration of the
authorities and the principle of law involved in the case, my concluded opinion
is that,in case of a sale of different properties, the. right of pre-emption
cannot be exercised with respect to one or some of them only if the enjoyment
thereof is dependent on the property over which that right is not and cannot be
exercised in law and consequently, where the land is sold with a house thereon,
pre-emption cannot be allowed. with respect to the house only apart from the
land over which the right could not be exercised on account of its being a
leasehold property. The sale of a house for inhabitation or occupation, without
the sale of its foundations and the land over which the foundations stand, is
inconceivable, except, as pointed out in Hedaya, in case of the sale of the
upper story of a house." We agree with the conclusion. As this judgment
has considered the earlier decisions on the subject, we need not again refer to
them.
To summarize: A right of pre-emption is
annexed to full ownership of property of co-sharers. It is not attached to
property held on subordinate tenure, such as leases etc. It is an incident of
the co-sharer's property operating both as a right and as a burden in different
situations. It is a right of substitution taking in the entire bargain. It must
take the whole or nothing. It does not matter if the inability to take the
whole arises out of a voluntary act or out of a legal limitation inherent in
the nature of the (1) A.I.R. 1962 Pat. 226 (F.B.) 119 property transferred. It
is reciprocal in operation, that is, if the situation was reversed and the
vendor became the pre-emptor, he should be in a position to pre-empt the co-
sharer's whole bargain. The two doctrines which may, for convenience, be
referred to as "entire bargain" and "reciprocity" cannot'
operate unless both the co-sharers are full owners of their respective
properties. Akar or a house standing on a freehold land is subject to the right
of preemption, but a house on a leasehold land stands on a different footing.
As there is no right of preemption in respect of a land held on a subordinate
tenure, the right of pre-emption cannot be enforced against the house either,
as the pre-emptor cannot be substituted for the entire bargain.
The right must fall also on the ground that
the super- structure disannexed from the land would be movable property and it
is well settled that the right of pre-emption cannot be enforced in respect of
movables.
We, therefore, hold that the first respondent
has no right to pre-empt the sale executed in favour of the appellants. In the
result, the appeal is allowed, the decrees of the Subordinate Judge's Court and
the High Court are set aside and that of the trial Court is restored. The
appellants will have their costs throughout.
RAGHUBAR DAYAL J.---I agree that the law of
pre-emption regarding co-sharers does not infringe the fundamental right
conferred under Art. 19(1)(g), that the pre-emptor must be the owner of the
property in respect whereof he claims the right of pre-emption, that the vendor
must have proprietary right in the property sold and sought to be pre-empted,
that the sale of lease-hold interest is not subject to the law of pre-emption
and that the sale of the super-structure of a house is not pre-emptible. I also
agree that the pre-emptor must pre-empt for the entire property sold if that be
pre- emptible. I would, however, not like to express an opinion upon the point
whether, in certain circumstances, the pre- emptor can or cannot 120 pre-empt
part of the property sold. There have been cases where partial pre-emption has
been allowed. Some of the exceptional cases have been referred to at p. 778 of
'Muslim Law as Administered in India & Pakistan' by K.P. Saksena, IV
Edition.
In Zainab Bibi v. Umar Havat Khan(1) the
preemptor was allowed to pre-empt that part of the property sold which was
pre-emptible and in support of the decision it was stated at p. 457:
"So far as the Mohammedan Law is
concerned, there is no doubt that where several properties are sold in portions
of which a pre-emptor has the right of pre- emption, he is entitled to preempt
that portion only on payment of a proportionate price. On this point there was
a consensus of opinion among the three Imams as quoted in the Fatawa Alamgiri,
referred to in Omur Khan v. Mooras Khan (1865 N.W.P. H.C.R. 173, 174)"
This Court did express an opinion in Bishan Singh v. Khazan Singh(2):
"The general law of pre-emption does not
recognize any right to claim a share in the property sold when there are rival
claimants.
It is well established that the right of pre-
emption is a right to acquire the whole of the property sold in preference to
other persons (See Mool Chand v. Ganga Jal: ILR 11 Lah.
258, 273) " In that case the dispute lay
between two rival preemptors and arose in these circumstances. One preemptor
pre-empted the entire sale and obtained the decree on condition that he would
deposit a certain amount within a certain time. But, before he could deposit
the amount, the rival pre-emptor instituted another suit for the pre-emption of
the entire property sold and impleaded in that suit the first pre- emptor. The
rights of the two preemptors were found to be equal. The entire property sold
was clearly pre-emptible.
It was, in this context, that the observation
(1) 1936 A.L.J. 456.
(2) [1959] S.C.R. 878,884.
121 was made. It would be a matter for
consideration at the appropriate time whether there can be any exception to
this general rule that the entire property sold must be pre- emptor by the
pre-emptor in his suit.
I would therefore rest my decision on the
facts that the sale of the lease-hold interest in land is not pre-emptible and
that the super-structure of the house is also not pre- emptible and that
therefore the plaintiff pre-emptor cannot pre-empt the sale of the property
sold. I therefore agree that the appeal be allowed, the decrees of the
Subordinate Judge and the High Court be set aside and that of the trial Court
be restored and that the appellants would have their costs throughout.
Appeal allowed.
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