LexBHAGWATI PRASAD SAH AND OTHERS versus BHAGWATI PRASAD SAH AND ANOTHER
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
5 S.C.R. SUPREME COURT REPORTS 105 BHAGWATI PRASAD SAH AND OTHERS v. BHAGWATI PRASAD SAH AND ANOTHER (P.B. GAJENDRAGADKAR, K. SUBBA RAO, K.N. WANCHOO, J.C. SHAH AND RAGHUBAR DAYAL JJ.) 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-Constitu- tionality of law of pre-emption-Constitution of India, Art. 19(1) (g). One Chathilal Sah of Sahebganj, Bihar, was the owner of a house and two galas 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 ques- tions of law raised were (a) the right of pre-emption infringes the- fundamental right of a citizen under Art. 19 (I) (f) of the Constitu- tion 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 funadmental right conferred under Art. 19(1) (f) of the Constitution. Bahu Ram v. Bai} Nath, [1962] Supp. 3 S.C.R. 724 and Nuri Mian v. Ambica Singh, (1917) I.LR. 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 1963 October JO 106 SUPREME COURT REPORTS [1964] 1963 be in a position to pre-empt the co-sharers' whole bargains. The two doctrines which may, for convenience be referred to as "entire Bhagwati Prasad bargain" and "reciprocity" c~nnot operate unles~ both the co- s h sharers are full ·owners of their respec!Ive proper!Ies. Akar or a a house standing on a freehold land is subject to the right of pre- v. emption, but a house on a,leasehold land stands on a different Bhagwati Prasadfooting. As there is no right of pre-emption in respect of a land Sah 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, Gobind Dayal v. Inayatullah, (1885) I.L.R. 7 All 775, Sakina Bibi v. Amiran, (1888) l.L.R. 10 All 472, Dashrathlal v. Bai Dhondubai, A.LR. (1941) Born. 262, Shri Audh Behari Singh v. Gajadhar Jaipuria, [1955] 1 S.C.R. 70, Mt. Bihi Saleha v. Amiruddin (1929) l.L.R. 8 Pat. 251, Baboo Ram Go/am Singh v. Nursingh Sabey, (1876) 25 W.R. 43 Mohammad Jamil v. Khub Lal Raul, (1921) 5 Pat. L.J. 740, Phu/ Mohammad Khan v. Qazi Kutubuddin, A.LR. 1937 Pat. 578, Moorool ly Ram v. Baboo Hori Ram, (1867) 8 W.R. 106, Rameshwar Lal v. Ramdeo Jha, A.LR. 1957 Pat. 695, Nathuni Ram v. Gopinath, A.LR. 1962 Pat. 226 (F.B), Zahur v. Nur Ali, (1880) LL.R. 2 All 99 and Chariter Dusadh v. Bhagwa
Excerpt shown. Read the full judgment & AI analysis in Lexace.