Ram Narain vs Gokal Ram and others

Teja Singh, C.J.—The short question involved in this appeal is whether the plaintiff had waived his right to pre-empt the sale in question. The defendant placed on record a document in which it was definitely stated that if the plaintiff was allowed certain land he would not exercise his right of pre-emption. The execution of the document was proved but the plaintiff objected that since it was not registered it could not be adduced in evidence. The argument advanced on his behalf was that the right to pre-empt is a right to or in immoveable 1952 Pepsu/3 & 4 property and since the value of the property in this case was above Rs. 100/- the document whereby the plaintiff gave up that right came under the purview of Section 17 (b) of the Registration Act and was compulsorily register-able. Both the Courts below have come to the conclusion that there was no force in this contention and have accordingly dismissed the suit. The plaintiff has now preferred a second appeal to this Court.

Section 4 of the Pre-emption Act defines the right of pre-emption as the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons. The question whether such a right can be regarded as a right to or in immovable property was first discussed by a Division Bench of the Punjab Chief Court in ''Mohammad Bakash v. Hayat Khan'', (37 Pun Re 1888). That was also a case in which the plaintiff was alleged to have relinquished his right to pre-empt a sale by virtue of a document that he had executed. Mr. Justice Rattigan answered the question in the negative and held that a right of pre-emption is a right to or in immovable property. In coming to this conclusion he relied upon the definition of the right of pre-emption given in Section 9 of the Punjab Laws Act, 1872 which defined it as a right to acquire immovable property in preference to all other persons. The learned Judge observed that Section 9 created statutory right to become the purchaser of immovable property under certain conditions as to payment, etc. and remarked that such a right could not be put on a less higher footing than a right which a private purchaser acquires under a voluntary deed of sale to enforce that sale against a recalcitrant vendor on payment of the purchase money. In the view that he took he held that a document whereby a right of pre-emption was relinquished would come within the ambit of Section 17 (b) and Section 49 of the Registration Act. This decision was, however, expressly dissented from by another eminent judge of the Chief Court Punjab (Mr. Justice Plowden) in ''Dhani Nath v. Budhu'', 136 Pun Re 1894). The learned Judge made the following observations:

The fundamental question raised by the argument is whether the customary right of preemption dealt with under the Punjab Laws Act, 1872 is a right to or in immovable property within the meaning of this Section and it appears to me that it is not. A preferential right to acquire land, belonging to another person upon the occasion of a transfer by the latter does not appear to me to be either a right to or a right in that land. It is ''jus ad rem alienam acquirendam'' and not ''jus in re aliena.''

The learned Judge further observed that if the pre-emotion''s right is regarded between him and the owner it is not a right to the land sold, and that if regarded between the pre-empt and the person other than the vendor it lacks some of the usual attributes of a right to or interest in the property and that it could not be assigned. Referring to the previous case this is what he said :

The views expressed are not in accord with the decision of this Court in 37 Pun Re 1888, but we are not bound on that account to refer the question to a Full Bench. There is no current of decisions based upon that case so as to render a reference necessary.

With all respect. I agree with the view taken by Mr. Justice Plowmen and hold that the right of pre-emption is merely a personal right and not a right to or in immovable property and consequently the document whereby such a right is waived does not require registration, even if it be assumed for the sake of argument that the value of the right is the value of the property a point upon which also there is a considerable room for doubt.

It was urged before us by the appellant''s counsel that the waiver by the plaintiff of his right was conditional upon his getting certain other land and since that condition was not fulfilled he could not be non-suited. This plea was not raised in the Court below and in my opinion it cannot be raised before us at this stage.

The result is that the appeal fails and is dismissed with costs,

Gurnam Singh, J.

I agree.