RADHAKISAN LAXMINARAYAN TOSHNIWAL versus SHRIDHAR RAMCHANDRA ALSHI AND OTHERS

Citation: [1961] 1 S.C.R. 248 · Decided: 23-08-1960 · Supreme Court of India · Bench: BHUVNESHWAR PRASAD SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

248 
SUPREME COURT REPORTS 
[1961] 
'960 
RADHAKISAN LAXMINARAYAN TOSHNIWAL 
August 23. 
V. 
SHRIDHAR RAMCHANDRA ALSHI 
AND OTHEI~S. 
(B. P. SINHA, c. J., J. L. KAPUR, 
P. B. GAJENDRAGADKAR, K. SunBA HAo and 
K. N. WANCHOO, JJ.) 
Pre-emption-Equity if in favour of pre-emptor-Whether 
M ohamedon Law or personal law can override provision of statute law 
-To defeat a claim of pre-emption, whether it is a frattd, Berar 
Land Revenue Code, I928. 
The vendors executed an agreement for sale in respect of a 
certain survey number which according to the agreement was to 
be diverted to non-agricultural purposes and thereafter a sale 
deed was to be executed. In pursuance to the said agreement 
the vendors ~pplied for diversion which was sanctioned subject 
to the payment of premium and other conditions. Before the 
sale deed was executed respondent No. r Sridhar brought a suit 
for pre-emption against the appellant on the ground that he had 
a co-occupancy in the survey number in dispute being the owner 
of the adjoining survey number. The suit was decreed and on 
appeal the High Court inter alia held that the transaction ·was a 
sale which was subject to pre-emption and that the failure to 
execute and register a sale deed was a subterfuge to defeat the 
right of pre-emption. 
The question for decision was (r) whether a right of pre-
emption had accrued to respondent Sridhar under the provisions 
of the Berar Land Revenue Code, r928, and (2) whether the 
appellant was guilty of fraud in that in order to defeat the right 
of pre-emption the deed of sale was not executed, but for all 
intents and purposes the appellant had become the owner of the 
property. 
Held, that the right of pre-emption in Berar did not arise 
from Mohamedon Law and did not exist till it was brought from 
Land laws of the Punjab or North West Provinces. The right of 
pre-emption under the Berar Land Revenue Code extended to 
transactions of sale, usufructuary mortgages and leases for r5 
years or more and right under Mohamedon Law applies only to 
sales. The word sale has no wider connotation under s. r76 of 
the Berar Land Revenue Code than it has in the Transfer of 
Property Act. After the application of Transfer of Property Act 
to Berar a transaction of sale could not be effective except 
through a registered instrument. 
The contract of sale in the instant case created no interest in 
favour of the appellant and the proprietary title did not validly 
pass from the vendors to the appellant and until that was com-
pleted no right to enforce pre-emption arose. The transfer of 
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' 
l S.C.R. SUPREME COURT REPORTS 
249 
property, where the Transfer of Property Act applied, had to 
i960 
be under the provisions of the Transfer of Property Act only 
and neither the Mohamedon Law nor any other personal'law of 
Radhakisan 
transfer of property could override the statute law. There are 
Laxminara:yan 
no equities in favour of a pre-emptor, whose sole object is to 
Toshni~al 
disturb a valid transaction by virtue of the right created by 
v. 
statute. 
Shridhar 
Held, further that it is neither illegal nor frauaulent for Ramchandra Alshi 
the parties to a transfer, to avoid and defeat a claim for pre-
& Othm. 
emption by ali legitimate means and a person is entitled to steer 
clear of the laws of pre-emption by all lawful means. 
CIVIL ArPELLATE JURISDICTION: 
Civil Appeal 
No. 167 of 1955. 
Appeal by special leave from the judgment and 
decree dated November 22, 1951, of the former Nag-
pur High Court in Second Appeal No. 720 of 1945. 
S. N. Kherdekar, N. K. Kherdekar and A.G. Ratna-
parkhi, for the appellant. 
N. C. Chatterjee, S. A. Sohni and Ganpat Rai, for 
respondent No. I. 
1960. 
August 23. 
The Judgment of the Court 
was delivered by 
KAPUR J.-This is an appeal by special leave 
Kapur J. 
against the jmlgment and decree of the High Court at 
Nagpur passed in second appeal No. 1720 of 1945 con-
firming the decree of the District Judge. In the suit 
out of which this appeal has arisen the appellant was 
defendant No. 1 and the respondents were the plain-
tiff anq defendant Nos. 2 and 3 and the dispute 
relates to pre-emption on the ground of co-occupancy 
which falls under Ch. XIV of the Berar Land Revenue 
Code, 1928, hereinafter called the Code. 
On April 10, 1943, D. B. Ghaisas and his mother 
Ramabai entered into two contracts of sale with the 
appellant, one in regard to Survey Nos. 5, 14 and 16 
for a sum of Rs. 10,000 out of which Rs. 2,000 w

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