RAGHUNATH (D) BY LRS. versus RADHA MOHAN (D) THR. LRS & ORS.

Citation: [2020] 14 S.C.R. 462 · Decided: 13-10-2020 · Supreme Court of India · Bench: SANJAY KISHAN KAUL · Disposal: Appeal(s) allowed

Judgment (excerpt)

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SUPREME COURT REPORTS
[2020] 14 S.C.R.
 RAGHUNATH (D) BY LRS.
v.
RADHA MOHAN (D) THR. LRS & ORS.
(Civil Appeal No. 1442 of 2016)
OCTOBER 13, 2020
[SANJAY KISHAN KAUL, ANIRUDDHA BOSE AND
KRISHNA MURARI, JJ.]
Rajasthan Pre-Emption Act, 1966 – ss.3, 6, 8 , 9 and 21 –
Exercise of right of Pre-emption – Limitation for – Plaintiff’s suit
for pre-emption over a transaction effected on 21.01.1974 – Three
sale transactions involving the subject property had earlier taken
place in 1945, 1946 and 1966 – Right in property was predicated
on account of having a common portion therein – Trial Court
eventually held the suit to be barred by limitation in absence of
challenge to sale deed of 1966 – Upheld by first appellate court –
High Court inter alia held the suit to be filed within time – On appeal,
held: Right of pre-emption is a weak right – It is only exercisable
for the first time when the cause of such a right arises, in a situation
where the plaintiff-pre-emptor chooses to waive such right after the
1966 Act becoming operational – s.9 operates as a bar on his
exercising such right on a subsequent transaction relating to the
same immovable property – Impugned order set aside – Order of
trial court dtd. 01.02.1988 and the first appellate court dated
30.03.1989 upheld – As the original plaintiff has not challenged
the sale effected on 05.11.1966, the suit is thus barred by limitation
– Limitation Act, 1963 – Article 97 – Pre-emption.
Allowing the appeal, the Court
1.1 The Rajasthan Pre-Emption Act, 1966 was brought into
force on 1.2.1966.  In view of the rights conferred under the Act,
a suit was filed by the predecessor-in-interest of respondent No.1
seeking a decree of pre-emption against the predecessor-in-
interest of the appellant herein and respondent Nos. 4 to 6 herein,
on 10.1.1974, which was numbered as Civil Suit No. 40/1975.
The property in question is situated in a building bearing AMC
No. XV/290 situated in Kayasth Mohalla, Ajmer and is predicated
[2020] 14 S.C.R. 462
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on account of having a common portion in the said property. The
plaint stated that respondents 5 and 6 herein (original defendants
3 and 4) were owners and in possession of the part of the property
which was sold to respondent No. 4 herein (the original defendant
No. 2), vide sale deed dated 10.01.1974 for a consideration of Rs.
4000/-. Respondent No. 4 further sold this property to the
appellant herein (original defendant No.1 being the predecessor-
in-interest) on 21.01.1974 once again for the same consideration.
The other facts stated in the plaint are not required to be gone
into nor pleaded, except that there is an allegation that the two
portions were part and parcel of the same house having main
entrance, lavatory and staircase in common and that no notice,
as provided for under Section 8 of the Act, had been served,
which mandates a notice to pre-emptors (forming part of the
procedure as set out in Chapter III of the Act). The historical
perspective of the right of pre-emption shows that it owes its
originination to the advent of the Mohammedan rule, based on
customs, which came to be accepted in various courts largely
located in the north of India. The pre-emptor has been held by
the judicial pronouncements to have two rights. Firstly, the
inherent or primary right, which is the right to the offer of a thing
about to be sold and the secondary or remedial right to follow the
thing sold. It is a secondary right, which is simply a right of
substitution in place of the original vendee. The pre-emptor is
bound to show that he not only has a right as good as that of the
vendee, but it is superior to that of the vendee; And that too at
the time when the pre-emptor exercises his right. The right of
pre-emption is a “very weak right” and is, thus, capable of being
defeated by all legitimate methods including the claim of superior
or equal right. Right to pre-emption is defined in Section 3 of the
Rajasthan Pre-Emption Act, 1966. Section 6 sets out the right of
persons to whom the right pre-emption accrues and it would
suffice to reproduce sub-section (1) as the other sub-sections
deal with different classes of persons having such right. Chapter
III sets out the procedure for the exercise of the right of pre-
emption.  Section 8 under the said Chapter mandates issuance of
notice. The limitation for exercise of the aforesaid right is
stipulated in Section 21. Section 21 in turn refers to Article 97 of
RAGHUNAT

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