Kanta Devi vs Parkash Chopra & Anr.

A suit for possession on the basis of right of prior purchase filed by the appellant was dismissed by the trial court mainly on the ground that the

appellant had waived her right of prior purchase if any.

It was alleged by the plaintiffappellant that vide a sale deed executed M/s Ram Krishan Sham Kumar and Krishan Kumar, sold a house bearing

No. 288 situate in Gali Maihotrian, Jammu, for consideration of Rs. 19,000 to the plaintiff and respondent No. 2 jointly. Defendant No.2 by virtue

of solo deed dated 26.8.1974 alienated his interest in the suit house in favour of defendant No. 1 for a consideration of Rs. 16,000. The plaintiff

being a cosharer in respect of the property in dispute claimed to be having a right of prior purchase. The defendant resisted the suit on various

grounds as a consequence of which the following issues were framed by the Court:

(1) Whether the plaintiff has waived her right of prior purchase in respect of the disputed house? O.P.D. No.2

(2) Whether the plaintiff and defendant No. 2 were the co sharers of the suit property after having purchased the same jointly? O.P.P

(3) Whether the plaintiff has a right of prior purchase in respect of the suit house? O.P.P.

(4) Whether Sec. 15 of the Right of Prior purchase Act is ultra vires of the Constitution of India? .O.P.D.

(5) In case the right of prior purchase of the plaintiff is proved against the defendants, whether the decree for possession in respect of the suit

property can be passed against the defendant, No.1 in view of the fact that defendant No. 1 is the tenant of the suit property? O P.D

(6) To what relief the plaintiff is entitled to? ......O.P.P.

In order to prove her case the appellant examined Ram Saran, petitionwriter, Dina Nath, Sunil Malhotra and herself as witnesses. Defendant

No. 1 produced Jagan Nath, Amrit Lal and Dewan Chard petitionwriter, Ram Lal, Chaman Lal, Sain Dass, Harchaian Dass Chopra V.K. Chopra

Advocate and Vijay Kumar as her witnesses.

After perusing the evidence and referring to the provisions of law, the trial court held that the appellant had waived her right of preemption with the

result that 'her suit was dismissed vide the judgment and decree impugned in this appeal.

I have heard learned counsel for the parties and perused the record.

Learned counsel appearing for the appellant has submitted the right of prior purchase could not be proved to have been waived by oral

testimony of witnesses in view of the specific mandatory provisions as contained in Sec. 18 of the Right of Prior Purchase Act( for short, 'the Act'

hereafter). Section 18 of this Act provides:

Sec.18. Notice to persons hiving right of prior purchase:When any person proposes to sell any agricultural lard or village immovable properly or

urban immovable property, or to foreclose the right to redeem any village immovable property, or urban immovable property, in respect of which

any persons have a right of prior purchase, he may give notice to all such persons of the price at which he proposes to sell such land or property,

or of the amount due in respect of the mortgage, the case as may be.

Such notice shall be given through any Court within the local limits of whose jurisdiction such land or property is situated and shall be deemed

sufficiently given if it is served in accordance with the provisions of Order v of the Code of Civil Procedure.

Reliance is placed upon a judgment passed by me in Civil 1st Appeal No. 23 of 1986Smt. Amro Devi v. Prof. Rattan Lal and othersdecided en

9.6.1988, wherein I had come to the conclusion that the provisions of Sec. 18 of the Act were mandatory and in view of the judgment of the

Supreme Court reported in AIR 1963 S.C. 1077, the earlier judgments of this Court reported in I JRLR 324, III JKLR 172 and V JKLR 175,

stood repealed. It was held by me in that case:

Waiver is an intentional relinquishment of a known right or advantage, benefit, claim or privilege which except for such waiver the party would

have knowledge and means voluntary surrender of a right. The doctrine of waiver is recognised as a rule of judicial policy that a person will not be

allowed to take inconsistent position to gain advantage through the aid of courts and implies meeting of minds. Waiver is a matter of mutual

intention and does not depend upon misrepresentation. The law relating to right of prior purchase was enacted for granting of the rights under

certain circumstances in certain immovable property. The object of the right of preemption in general is stated to be the avoidence of disagreeable

strangers on the one hand and putting a restriction on the enjoyment of private property on the other. The law pertaining to preemption imposes a

qualified disability upon the owner of the properties. In a developing democracy like ours committed to the cause of socialism where the institution

of the private properly has not been absolished, the constitutional framers in their wisdom have imposed restriction or allowed the stature putting

restrictions on the user of the' property with the object of' securing the goal set forth in the preamble of our Constitution. The rights regarding the

acquisition of the property have been regulated by various statutes including the Act with the object of putting a check on affluent view to acquire

properties disproportionately which ultimately deprive the common citizen of their properties used for shelter to save themselves from the cruelties

of nature. The restriction imposed on the property serve another purpose of putting a check on the exorbitant rates of the landed properties. Under

the fear that the properties are subject to some restrictions, a balance of price pertaining to the properties is maintained. If the restrictions imposed

are alleged to be frustrated, defeated or ignored, the purpose of enacting and legislating or retaining such legislation after the commencement of the

constitutional obligations to advance the cause of sociopolitical system adopted by and given to themselves by the great people of this country

would be jeopardised. 'The phenomenan of puffing restrictions on the user of the properties is not new and was felt and recognised by the human

society from the dates or its development to civilization With the growth the society, with the emergence of Abe concept of possession, the Just for

acquiring more wealth started and is continuing which is required to be put to a hault. Realising such a situation it was described in an Arabic verse:

If a son of Adem had two rivers of Gold, he would covert yet a third and if he had third, he would covert fourth and in addition to them"" The

greed to acquire more property was not felt only in a particular part of the world but all over the universe. The political thinkers had differed about

retaining the institution of the private property or its abolition but in our constitutional set up it was decided to retain the institution of private

property by taking precaution against its excessive accumulation. The Jews, Romans, Egyptians arid Mohammadens recognised the law was

preemption which was alien to the Hindu Society. The law? was introduced in this country with the advent of Islam which was later on

acknowledged and practised on the basis of the custom before the same was incorporated in the form of statute in Punjab and Jammu and

Kashmir. Such a right also existed in Malabar, now a part of Kerala, in Russia, in specified areas, thus, in Jeva, Burmese Buddhists and some

European countries as well. The object of the Act, therefore, in the modern developing society being clear and unambiguous, the law relating to

such a right has to be interpretted in a manner which does not defeat the purpose and object for which it was enacted. It is true that the law of

preemption is a weak right and can be defeated by any legal means but that does not mean that such a right should be defeated on the grounds of

hypertechnicalities, inconsistent pleas and afterthought defenses. Law relating to preemption cannot be interpretted in a manner which may result in

rendering a particular statute negatory any nonexistent, of strict compliance of the provision of Sec. 18 of the Act is not insisted, the vendee of a

property would be permitted to take inconsistent pleas to defeat the right which has been held to mean a reasonable restriction on the user of the

property recognised by the statute and retained after coming into force of the Constitution. The provisions of the Act cannot be allowed to be

made instrument for defeating the object as noted hereinabove.

In the instant case the Hon'ble Judge constituting the bench had preused that the strict compliance of the provisions of Sec. 18 of Act was not

required and that the waiver could be proved on the basis of the general law as incorporated... under Section 115 of the Evidence Act. In my

humble opinion such law or judgments of the Board of Judicial Advisors on this point cannot be held to be a good law in view of the judgment of

the Supreme Court (AIR 1966 SC 1077), which requires a reconsideration by a larger Bench of this court. As it has been admitted that the

vendee in the instant case had not complied the provision of sec. 18 of the Act nor such a plea was raised in the written statement and that the

appellant had admittedly a prior right of purchase as compared to respondent No. 1 the suit of the plaintiffappellant could have been declared and

would not have been, rendered liable to dismissal as was done by the trial court. The trial court as well as the Hon'ble Judges constituting the

bench have decided Issue No. 2 completely ignoring the mandatory provisions of Section 18 the Act.

Mr. Bbagotra has, however, relied upon a latest Judgment of the Supreme Court delivered in Indiri Bai v. Nand Kishore1990 III SVIR (C) 359

and submitted that the view taken by me in the judgment referred to hereinabove is not longer a good law. The Supreme Court in that case has

held:

Estoppel is a rule of equity flowing out of fairness striking on behavior deficient in good faith. It operates as a check on spurious conduct by

preventing the inducer from taking advantage and assailing forfeiture already accomplished. It is invoked and applied to aid the law in

administration of justice. But for it great many injustice may have been perpetrated, present case is a glaring example of it. Truly no notice was

given by the seller but the trial court and appellate court concurred that the preemptor not only came to know of the sale immediately but he

assisted the purchaserappellant in raising construction which went on for five months. Having thus persuaded, rather misled, the purchaser by his

own conduct that he acquiesced in his ownership he somersaulted to grab the property with constructions by staking his own claim and attempting

to unsettle the legal effect of his own conduct by taking recourse to law. To curb and control such unwarranted conduct the courts have extended

the broad and paramount considerations of equity, to transactions and assurances, express or implied to avoid injustice.

Legal approach of the High Court, thus, that no estoppel could arise unless notice under Section 8 of the Rajasthan Preemption Act (in brevity 'the

Act') was given by the seller and preemptor should have had occasion to pay or tender price ignores the fallacy that Estoppel need not be

specifically provided as it can always be used as as a weapon of defence. In the Privy Council decision, referred earlier, the Court was concerned

with Oudh Laws Act (18 of 1875) which too had an identical provision for giving notice by sellar. No notice was given but since preemptor knew

that property was for sale and he had even obtained details of lots he was precluded from basing his claim on preemption.

Exception, to this universal rule or its nonavailability, is not due to absence of any provision in the Act excluding its operation but welfare of society

or social and general wellbeing. Protection was, consequently, sought not on the rationale adopted by the High Court that in absence of notice

under Section 8 of the Act estoppels could not arise but under cover of public policy. Reliance was placed on Shalimar Tar Products V.H.C.

Sharma, AIR 1988 SC 145, a decision on waiver and Equitable Life Assurance Society of the United States v. Reed, 14 Appeal Cases 587,

which laid 'down that there could be no estoppel against statute. Equity usually, follows law. Therefore that which is statutorily illegal and void

cannot be enforced by resorting to the rule of estoppel. Such extension of rule may be against public policy. What then is the nature of right

conferred by Section 9 of the Act? In Bishen Singh V. Khazan Singh, ATR 1958 SC 838, this court while approving the classic judgment of

Mahmood J, in Gobind Dayal V. Inayatullah, ILR 7 All 775 (FB), 'that the right of preemption was simply a right of substitution' observed that'

courts have not looked upon this right with great favour, presumanly, for the reason that it operated as a clog on the right of the owner to alienate

his property. In Radha Krishan v. Shridhar, AIR 1960 SC 1369 this Court again while repelling the claim that the vender and vendee by accepting

price and transferring possession without registration of sale deed adopted subterfuge to defeat the right of preemption observed that, 'there were

no equities in favour of a preemptor, whose sole object is to disturb a valid transaction by virtue of the rights created in him by statute. To defeat

the law of preemption by any legitimate means is not fraud on the part of either the vendor or the vendee and person is entitled to steer clear of the

law of preemption by all lawful means' Such being the nature of right it is harsh to claim that its extinction by conduct would amount to statutory

illegality or would be opposed to public policy. The distinction between validity and illegality or the transaction being void is clear and well known.

The former can be waived by express or implied agreement or conduct. But not the latter. The provision in the Act requiring a vendor to serve the

notice on persons having right of preemption is condition of validity of transfer and therefore a preemptor could waive it. Failure to serve notice as

required under the Act does not reader the sale made by vendor in favour of vendee ultra vires. The test to determine the nature of interest,

namely, private or public is whether the right of which is renunciated is the right of party alone or of the public also in the sense that the general

welfare of the society is involved. If the answer is latter then it may be difficult to put estoppel as a defence. But if it is right of party alone then it is

capable of being abnegated either in writing or by conduct. The Act does not provide that in case no notice is given the transaction shall be void.

The objective is to intimate the preemptor who may be interested in getting himself substituted. The Act does not debar the preemptor from giving

up this right. Rather in case of its nonexercise within two months, may be for the financial reasons the right stands extinguished. It does not pass on

to any one. No social disturbance is caused. It settles in purchaser."" Giving up such right, expressly or impliedly cannot therefore be said to involve

any interest of community or public welfare sp as to be in mischief of public policy.

Even though I had given my own reasons for the view T had taken, yet in the presence of contrary view of the apex Court, I bow before that the

hold that the earlier judgments of this Court referred to hereinabove are still effective and binding under which the waiver can be proved even by

oral testimony of witnesses.

After proper appreciation of the evidence and reference to the judgments reported in AIR 1959 SC 149, J&K Law Reporter Samvat 2004

page 104, AIR 1949 Ajmer J, AIR 1950 Madya Bharat 85, AIR 1952 Ajmer 26, AIR 1967 Punjab 467, AIR 1929 All 453 AIR 1929 All 531

and AIR 1953 Lahore 884, the trial Court rightly cams to the conclusion:

The rule of estoppel by acquiescence applies in cases of preemption. Where a vendor informs the preemptor about his intention to sell orally or

otherwise and preemptor refuses to purchase the property, he is disqualified from subsequently maintaining a suit for preemption as he is estopped

from seeking to enforce his right by virtue of the provisions of Section 115 of Evidence Act. As discussed above, defendant No. 2, vendor made

repeated offers for the sale of the suit house to the plaintiff who did not agree to it. She has thus by her conduct and otherwise relinguished her right

and this relinquishment of right comes within the purview of waiver and doctrine of estoppel clearly applies as against her. The issue is, therefore,

decided in favour of the defendant.

Learned counsel for the appellant has not been in a position to refer to any evidence by which contrary finding could be given in the instant case

regarding issue No. 1. Finding of the trial court on this issue, is, therefore, confirmed.

In view of the conformation of finding on issue No. 1, there is no necessity of deciding other issues despite the fact that Mr. Bhagotra has urged

that the appellant had no prior right of purchase as she was not the cosharer and that respondent No. 1 was a tenant of the premises before the

sale deed was executed in his favour and had a right of prior purchase under Sec. 15 of the Act.

Accordingly this appeal which has no merit is dismissed but without any order as to costs.