Dhaniram vs Bhairon Prashad and Others

Jagat Narayan, J.—These connected appeals arise out of two suits for pre-emption instituted in respect of agricultural land situated in village Majra and sold by Mukhram and Ganga Sahai to Bhairon Prashad and Sheodan, on 27-9-41 for Rs. 2000/-. At the time of the sale the property was in possession of Nandram, Hetram and Ramjilal under a mortgage for Rs. 3000/-. The names of the vendees were mutated over the property by the order of the Tehsildar dated 11-10-41.

The vendees thereafter filed a suit for redemption of the property which was decreed. They redeemed the property on payment of Rs. 3000/-mortgage money plus Rs. 187/8/- costs of suit and took possession over it. On 29-8-42, Dhaniram filed a suit for pre-emption in respect of the property which was ultimately tried by the District Judge under the orders of the then Alwar High Court dated 5-11-47.

Before the suit was disposed of Richpal brought another suit for pre-emption in respect of the same property on 24-8-46 in the court of the District Judge. Both these suits were consolidated and were tried together. Before the trial the Alwar State Pre-emption Act 1946 had come into force and the suits were governed by it. Richpal is the son of Mukhram vendor and the nephew of Ganga Sahai vendor.

Mukhram had no other son. Nor did Ganga Sahai have any son. Richpal was thus the heir of both Mukhram and Ganga Sahai, who would have been entitled to inherit the property sold under the sale-deed on the death of Mukhram and Ganga Sahai if the sale had not taken place. Richpal based his claim to pre-empt the property on Section 15(a) of the Alwar State Pre-emption Act, 1946, which runs as follows :

''''Subject to the provisions of Section 14, the right of pre-emption in respect of agricultural land and village Immovable property, shall vest -

where the sale is by a sole owner or occupancy tenant or in the case of land or property jointly owned Or held by all the co-sharers jointly, in the persons in order of succession who, but for such sale would be entitled, on the death of the vendor or vendors, to inherit the land or property sold;"

The vendors are Jats by caste. Dhaniram is also a Jat. Dhaniram is a co-sharer in a Patti in the village other than the Patti in which the land which was sold was situated. He claimed pre-emption under the 2nd and 3rd sub-clauses of Clause (c) of Section 15 which run as follows :

"Secondly, in the owners of the patti or other sub-divisions of the estate within the limits of which such land or property is situate;

Thirdly, in the owners of the estate;"

The right conferred u/s 15 is subject to the limitation contained in Section 14 which lays down that no person other than a person who was at the date of the sale a member of an agricultural tribe in the same group of agricultural tribes as the vendor shall have a right of pre-emption in respect of agricultural land sold by a member of an agricultural tribe.

The vendees are not biswedars (owners of proprietary right in land) in village Majra. The trial Court found that both Dhaniram and Richpal had a right to pre-empt the property under the Act of 1946 but as Richpal had a preferential right over Dhaniram the suit was decreed in his favour. The suit of Dhaniram was dismissed. Against this decree dated 6-9-52, Dhaniram filed S. B. Civil First Appeal No. 68-B/52 and Bhairon Prashad S. B. Civil First Appeal No. 71-B/52.

The right of pre-emption claimed by Richpal is based on relationship and that claimed by Dhaniram is based on being owner of agricultural land in another Patti in the same village. The contention on behalf of the vendees is that both these rights are hit by Article 19(1)(f) and Article 14 of the Constitution and that as the right of preemption must not only exist on the date of the suit but also on the date of the decree no decree could have been passed in favour of either of them after the coming into force of the Constitution. Reliance was placed on Panch Gujar Gaur Brahmans Vs. Amarsingh and Others, , Shankarlal v. Poonamchand RLW 1954 292 (AIR 1954 Raj 231 ), Siremal and Others Vs. Kantilal, Behram v. Phusa RLW 1956 528 ((S) AIR 1955 Raj 144 ) and Girdhari Vs. Jawala and Others, .

In Panch Gujar Gaur Brahmans Vs. Amarsingh and Others, it was held that the enforcement of the right of pre-emption based on ownership of adjoining property is not ft reasonable restriction on the right to acquire and hold property. The question in that case arose with respect to customary law. In Shankarlal''s case RLW 1954 292 (AIR 1954 Raj 231), it was observed that the same considerations applied to the statute law of pre-emption based on vicinage. The right of pre-emption claimed by Dhaniram in the present case is analogous to the right of preemption based on vicinage and the same considerations are applicable to it. This right is therefore no longer valid and enforceable in view of the coining into force of the Constitution.

In Siremal and Others Vs. Kantilal, it was held that the law of preemption by mere relationship as put down in the second clause of Section 3 of the Marwar Pre-emption Act had become invalid by the coming into iorce of the Constitution as similar law was not prevalent in other parts of Rajasthan and no special reason can be shown to justify the distinction.

The principle laid down in Manohar Singh Ji Vs. State of Rajasthan, was followed. The right claimed by Richpal is equally invalid for the same reason. Siremal and Others Vs. Kantilal, was followed in RLW 1956 528 (AIR 1955 Raj 144) which was a case in which a right of preemption was claimed under the Alwar State Revenue Code based on collateralship.

It was held that the right had become void and unenforceable on the coming into force of the Constitution. In Girdhari Vs. Jawala and Others, the right of pre-emption based on relationship was claimed u/s 15 of the Alwar State Pre-emption Act. It was held that a right based on personal relationship was not enforeable after the passing of the Constitution.

On behalf of Dhaniram and Richpal it was conceded that such rights have become void and unenforceable since the passing of the Constitution, but it was argued that the right of preemption is a right attached to property and as the right in the present case accrued before the passing of the Constitution it could not be extinguished on the passing of it as the Constitution Had no retrospective effect.

Reliance was placed on Babulal v. Gowardhan-das AIR 1956 MP 1 in which the decision of this Court in RLW 1954 292 : AIR 1954 Raj 231 , was dissented from on the ground that the right of pre-emption is attached to property and having once vested it could not be divested by the coming into force of the Constitution. Reference was made to the decision of the Supreme Court in Shri Audh Behari Singh Vs. Gajadhar Jaipuria and Others, and it was observed with regard to it:

"It is significant that the Supreme Court themselves in the case reported in Shri Audh Behari Singh Vs. Gajadhar Jaipuria and Others, recognised the validity of such a right though no decree had been passed in that case till the decision of their Lordships, for had they not so recognised there would not have been an occasion for remand for consideration of other points left undecided."

In Shri Audh Behari Singh Vs. Gajadhar Jaipuria and Others, pre-emption was claimed on the ground of vicinage. The sale in that case took place in 1941.

It was argued on behalf of Dhaniram and Richpal that in Panch Gujar Gaur Brahmans Vs. Amarsingh and Others, this Court held that the right of pre-emption was a personal right and as this view was overruled by the Supreme Court in the above decision the ruling in RLW 1954 292 : AIR 1954 Raj 231 requires reconsideration. I am unable to agree with this contention.

Although in Panch Gujar Gaur Brahmans Vs. Amarsingh and Others, it was observed that the right of pre-emption was a personal right the decision in RLW 1954 292: AIR 1954 Raj 231 was not based on this view of the nature of the right of pre-emption. It was based on the view taken by most of the High Courts in India that the right of pre-emption must exist not only at the time or sale but at the date of the suit for pre-emption and it must continue up to the time the decree is passed. (See Article 183 in Mulla''s Commentary on Mahomedan Law, Twelfth Edition, p. 202). No High Court had taken a contrary view. These decisions are not based on the consideration as to whether the right of pre-emption is a personal right or is a right attached to property.

They are based on the consideration that the right of pre-emption is a very weak right and in order that it may be enforceable it must continue to exist upto the date of the decree. Their Lordships of the Madhya Bharat High Court did not consider in their judgment this aspect of the matter.

It will thus be seen that so long as the right of pre-emption based on any ground whatsoever was valid and enforceable High Courts took the view that it was necessary that the right should subsist upto the date of the decree. I do not see sufficient reason to depart from this long series of decisions now to enforce a right which is no longer valid and which is unsuited to a progressive society.

The point that the right of pre-emption should subsist on the date of the decree was not raised before their Lordships of the Supreme Court in Shri Audh Behari Singh Vs. Gajadhar Jaipuria and Others, and to my mind it would not be proper to draw any inference from that decision that their Lordships impliedly held in that case that it need not so subsist. With all respect therefore, I am unable to agree with the decision in Madhya Bharat case. Further if I may say so with �-all respect Shankarlal''s case RLW 1954 292 : AIR 1954 Raj 231 lays down the law correctly and does not require reconsideration.

The decree in the present case was passed for the first time after the passing of the Constitution. On that date the right of pre-emption based on the aforesaid grounds which Dhaniram and Richpal claimed had become invalid and unenforceable. The decree passed in favour of Richpal cannot therefore be maintained.

I accordingly allow S. B. Civil First Ap peal No. 71-B/52 and dismiss the suit brought by Richpal. S. B. Civil First Appeal No. 68-B/52 filed by Dhaniram is also dismissed. In the Circumstances of the case I direct that parties shall bear their own costs throughout.