KRISHNA DASS AGARWAL versus KANHAIYALAL

Citation: [1996] SUPP. 3 S.C.R. 671 · Decided: 19-07-1996 · Supreme Court of India · Bench: B.P. JEEVAN REDDY · Disposal: Dismissed

Judgment (excerpt)

KRISHNA DASS AGARWAL 
KANHATY ALAL 
JULY 19, 1996 
IB.P. JEEVAN REDDY AND SUHAS C. SEN, .JJ.] 
Gwalior Pre-Emption Act (Samvat) 1992: Section 23 (As it stood p1ior 
to repeal of Act in 1968)-Scope and inte1prctation of-Expression ''.At the 
time of decree"-Meaning of 
M.P. General Clauses Act, 1957: Section J(}-Applicability of 
A 
B 
c 
Pre-emption-Suit-House purchased by respondent-Suit instituted by 
appellant for enforcement of pre-emption right-Suit decreed by Trial 
Cowt-Appeal by respondent-Repeal of pre-emption Act during pendency of D 
appeal-Appeal prefencd by respondent allowed by Appellate Co1111-Second 
appeal prefen-ed by appellant-High Cowt holding that inasmuch as an 
appeal was filed against the decree of the tlial court in this case, the decree 
contemplated by Section 23 is the decree to be passed in the appeal, and if 
a second appeal is filed, the decree to be passed by the High Court as the E 
case may be-Accordingly, it held that the 1ighl of pre-emption must subsist 
on the date of the appellate decree/second appellate decree-Since the Act 
was repealed dwing the pendency of the appeal, it held, the right was not 
subsisting on the date of the appellate decree-Appeal before Supreme 
Cowt-Held it is possible to take two views on the scope of expression "at the 
F 
time of decree"-However having regard to the fact that the 1ight of pre-emp-
tion is a weak 1ight and is generally looked upon with distaste and because 
the High Court has taken a pOlticular view of the matter on the inte1pretation 
of a local enactment (which was no longer in force) Supre,;ne Court was not 
inclined to take a different view. 
Bishan Singh v. Khazan Singh, AIR (1958) SC 838 = (1959] S.C.R. 
878 and Nimwla Devi v. Km. Renuka, (1972) 21 J.LJ. 453, referred to. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9383 of 
G 
1996. 
H 
671 
672 
SUPRl'1YIE COURT REPORTS [1996] SUPP. 3 S.C.R. 
A 
From the Judgment and Order dated 27.8.92 of lhe Madhva Pradesh 
. 
. 
High Court in C.S.A. No. 283 of 1974. 
Salish Chandra, A.P. Dhamija and Sushi! Kumar Jain for the Appel-
lant. 
B 
K. Parasaran, Vivek Gambhir and S.K. Gambhir for the Respondent. 
The Judgment of the Court was delivered by 
B.P. JEEVAN REDDY, J. Leave granted. Heard the counsel for the 
C parties. 
This appeal is preferred against the judgment of the learned Single 
Judge of the Madhya Pradesh High Court dismissing the second appeal 
preferred by the appellant-plaintiff herein. 
D 
On December 5, 1960, the respondent Kanhaiyalal, purchased the 
suit-house from Ram Chander and others under a sale deed, which was 
registered on December 10, 1960, for a consideration of Rupees eight 
thousand. On December 5, 1961, the appellant- plaintiff instituted a suit 
seeking to enforce his right of pre- emption on two grounds, viz., (1) an 
agreement said to have been executed by Nath Mal, father of Ram Chander 
E agreeing to give the plaintiff the right of first purchase in the event of sale 
of the said house and (2) the Gwalior Pre-emption Act which created a 
right of pre-emption in favour of dominant-heritage holder vis-a- vis ser-
vient-heritage holder. The plaintiff also relied upon an alleged customary 
right of pre-emption. The defendant disputed the plaintiff's claim inter alia 
F on the ground that the Gwalior Pre-emption Act is unconstitutional and is 
unenforceable with effect from the date of the commencement of the 
Constitution of India. The Trial Judge decreed the suit on July 31, 1967. 
The respondent, Kanhaiyalal, preferred an appeal which was allowed by 
the learned District Judge. The grounds on which the learned District 
Judge allowed the 'appeal are : (i) inasmuch as the Gwalior pre-emption. 
G Act has been repealed pending the said appeal (i.e., on June 28, 1968), the 
right of pre-emption claimed by the plaintiff can no longer be enforced. 
The plaintiff cannot also fall back upon customary right of pre-emption 
inasmuch as the said right came to an end with the enactment of the 
Gwalior Pre- emption Act in Samvat 1992. The said custom does not and 
H cannot revive on the repeal of the said enactment. (ii) The alleged agree-
K.D. AGAl<WAL v. KANHAIYALAL[B.P.JEEVANREDDY,J.] 
673 
ment of pre-emption offended the rule of perpetuity and because the A 
respondent, Kanhaiyalal, was a bonafide purchaser of value without notice 
of the said agreement, the agreement cannot he enforced against him. The 
learned District Judge, however, declined to record any 

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