Behram and others vs Phusa and others

Bapna, J.—This is a second appeal by the plaintiffs in a suit for declaration instituted on 1-10-1945, on the allegation that certain agricultural land situated in Darbarpur, Tehsil Mundawar, sold by Anardei to Phusa, Murli and Nathu for Rs. 900/- was an invalid transaction, and the mutation obtained by the vendees on 25-3-1942, in their favour should be set aside. The plaintiffs relied on S. 129, Alwar Revenue Code, which provided that

all residents of the State shall be entitled to purchase or take in mortgage agricultural land from Biswedars of the State, but the collaterals of the alienor shall be given the first refusal.

and it was urged that the vendees were strangers having no land in the village, and the plaintiffs were collaterals of the father of Anardei.

The vendees contested the suit on the ground that the property in dispute had been gifted by the father of Anardei to Anardei, and was her absolute property, which she had full right to alienate.

The finding of the lower appellate court is that the property was absolutely and exclusively owned by Mt. Anardei, having been obtained by her by gift from her father, and while S. 129, Alwar Revenue Code gave a preferential right to the collaterals to acquire a certain property by purchase or mortgage that right could only be enforce-ed by a suit for pre-emption, but the suit had not been so framed, and a mere declaration could not be granted by the court. The suit was accordingly dismissed by the District Judge by setting aside the decree of the trial court, which had been passed in favour of the plaintiffs.

The right of collaterals to a preferential purchase came for discussion in a recent judgment of this Court in - Siremal and Others Vs. Kantilal, while dealing with the Marwar Preemption Act, and it was held that the preferential right to purchase allowed by the Marwar Pre-emption Act on account of relationship as against strangers was not a reasonable restriction on the right to acquire, hold and dispose of property granted by Art. 19(1)(f) of the Constitution. The provisions of the Marwar Law in that respect were held to be void. On the same reasoning the right of preferential purchase allowed by S. 129 of the Alwar Code to collaterals as against strangers must be held to be void.

No other point is involved in this appeal. It is accordingly dismissed with costs.