MOHD. NOOR AND ORS. ETC. ETC. versus MOHD. IBRAHIM AND ORS. ETC. ETC.

Citation: [1994] SUPP. 1 S.C.R. 790 · Decided: 19-07-1994 · Supreme Court of India · Bench: R.M. SAHAI, B.L. HANSARIA · Disposal: Dismissed
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Judgment (excerpt)

A 
MOHD. NOOR AND ORS. ETC. ETC. 
v. 
MOHD. IBRAHIM AND ORS. Etc. ETC. 
JULY 19, 1994 
B 
[R.M. SAHAJ AND B.L. HARSARIA, JJ.) 
Rajasthan Pre-emption Act, 1966-Sections 2(vii), 3, 4, 11/Rajasthan 
Tenancy Act, 195~Section 14(a)-Pre-emption-fl.ight of-Co-sharers in 
Khatedari rights of agricultural /ands-Whether entitled to claim pre-emp-
C tiolt-He/d, No-Transfer made by a Khatedar tenant-Not a transfer of 
ownership. 
D 
Rajasthan Tenancy Act, 195~Sections J4(a), 14(c), 40to 43, 59-Na-
ture of Khatedari rights-Transfer of such right;--W/iether amounts to transfer 
of ownership-Held, No. 
The appellants in the present appeal were co-shares in the Khatedari 
rights or the land transferred. The question that arose for consideration 
was whether a co-sharer or khatedari rights of agricultural land was 
entitled to claim pre-emption under the Rajasthan Pre-Emption Act, 1966. 
E Consequently the dispute was whether the sale or the land amounted to 
transfer or ownership within meaning of Section 2(vii) or the Act. 
Dismissing the appeal, this Court 
HELD : 1.1. A Khatedar tenant is a person by whom rent is payable 
F 
u/s 43 or the Rajasthan Tenancy Act. The effect or it in law is that such a 
person cannot be deemed to be an absolute or unlimited owner which is 
necessary before the right of pre-emption can be exercised. [802-E] 
1.2. The Rajasthan Tenancy Act permits transfer of agricultural 
land. Therefore, a kbatedar tenant is entitled to transfer bis tenancy land. 
G But a co·sharer can claim the right of the pre-emption only iC it is a sale 
of ownersMp. The tenancy legislation visulaizes transfer of subordinate 
right but the Rajasthan Pre-Emption Act, 1966 recognises transfer or 
absolute right only. Transfer or Khatedari rights being transfer or subor· 
dinate right only, no right or pre-emption exists in such transfer. Even 
H though a kbatedar tenant is an owner for all practical purposes, bis 
790 
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NOOR v. IBRAHIM [SAHAl,J.] 
791 
ownership is limited and, therefore, the transfer by a Khatedar tenant of A 
an agricultural holding does not give right to a co-sharer to claim right of 
pre-emption. Right of pre-emption is a right of substitution in ownership 
either of land or house. It is not available in transfer of tenancy. 
(793-H, 794-A·D) 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2696 of B 
1982 Etc. Etc. 
From the Judgment and Order dated 1.12.81 of the Rajasthan High 
Court in B.B.C.R.S.A.No. 174 of 1981: 
B.D. Sharma, Rajendramal Tetia, Indira Makwana and Narotam C 
Vyas for the Appellants. 
Sushi! Kumar Jain and Sudhanshu Atreya for the Respondent. 
VJ. Francis for the Respondent in Nos. 5 & 8. 
The Judgment of the Court was delivered by 
R.M. SAHA!, J. The short and the only question that arises for 
consideration in these appeals is whether a co-sharer of khatedari rights of 
agricultural land is entitled to claim pre-emption under the Rajasthan 
Pre-Emption Act, 1966 (hereinafter referred to as 'the Act'). 
D 
E 
Right of pre-emption has not been looked upon favourably as it 
operates, 'as a clog on the right of the owner to alienate his property'. In 
Radhakishan Laxminarayan .Toshniwal v. Shridhar Ramchandra Aishi & 
Ors., AIR (1960) SC 1368 = (1961) 1 SCR 248, it was observed that, 'to 
(To) defeat that law of pre-emptiori by any legitimate means' was not fraud. F 
Therefore, availability of this weak or archaic right has to be construed 
strictly. It the Act, there is no provision extending the benefit of pre-emp-
tion to agricultural holdings. A person claiming pre-emption, therefore, has 
to squarely fall with in the forecorners of the provisions con!ained therein. 
The right of pre-emption is defined in Section 3 to means, 'a right 
accruing under Section 4 of the Act upon transfer of any immovable 
property to acquire such property and to be substituted as the transferee 
thereof in place of and in preference to the original transferee'. Section 11 
G 
of the Act entitles a person to bring a suit for pre-emption when a transfer H 
792 
SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R. 
A 
has been completed. Transfer under clause (viii) of Section 2 of the Act 
means 'a sale, or a mortgage where the final decree for foreclosure in 
re~pect thereof has been passed'. A transfer of immovable property for 
purposes of the Act, therefore, must be a transfer or mortgage. Sale has 
been defined by clause (vii) of Section 2 to mean, 'a transfer of ownership 
B in immovable property in exchange for
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