SURESH CHAND AND ANR. versus SURESH CHANDER (D) THR LRS. AND ORS.

Citation: [2020] 3 S.C.R. 891 · Decided: 19-02-2020 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Disposed off

Judgment (excerpt)

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SURESH CHAND AND ANR.
v.
SURESH CHANDER (D) THR LRS. AND ORS.
(Civil Appeal No. 482 of 2020)
FEBRUARY 19, 2020
[DR. DHANANJAYA Y. CHANDRACHUD AND
AJAY RASTOGI, JJ. ]
Rajasthan Pre-emption Act 1966: ss. 6, 5 – Right of pre-
emption – When accrues – Held: Right of pre-emption is a
preferential right to acquire the property by substituting the original
vendee – Transfer or sale of an immovable property is a condition
precedent to the enforceability of the right – Right of pre-emption is
attached to the property and only on that footing it can be enforced
against the vendee – Though the right is recognised by law, yet it
can be rendered imperfect by the vendor when he transfers the
property to another person who also has a superior right to
pre-emptor – On facts, plaintiff and second defendant were brothers
in joint possession of courtyard having half share each and second
defendant sold house alongwith courtyard to first defendant – As
regards plaintiff’s claim for right of pre-emption, plaintiff had a
superior right of pre-emption by virtue of s. 6(3) since he was the
brother of the second defendant and first defendant has an inferior
right of pre-emption as compared to plaintiff, hence his claim cannot
prevail over the superior right of pre-emption of plaintiff – Courts
below rightly proceeded on a correct interpretation of the provisions.
Dismissing the appeal, the Court
HELD: 1.1 Section 5 of the Rajasthan Pre-emption Act,
1966 provides for cases in which the right of pre-emption does
not accrue. As a result of Section 5(1)(c), the right of pre-emption
does not accrue on a transfer of the property to any of the persons
mentioned in Section 6, to any person who has an equal or inferior
right of pre-emption. In a case, where a transfer is to a person
mentioned in Section 6, the right of pre-emption does not accrue
to any person who has an equal or inferior right of pre-emption.
In other words, in a case where the vendee also has a right of
[2020] 3 S.C.R. 891
891
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SUPREME COURT REPORTS
[2020] 3 S.C.R.
pre-emption u/s. 6, the right of pre-emption will accrue only to a
person with a superior right of pre-emption. [Para 11][898 A-C]
1.2 Section 6(1) specifies the persons to whom the right of
pre-emption accrues. Under Section 6(1)(ii), a right of
pre-emption accrues in respect of an immovable property to
owners of other immovable property with a stair-case, entrance
or other right or amenity common to such property and the
property that is transferred. Where a right of pre-emption enures
to the benefit of a person under the provisions of s. 6(1)(ii), a
consequence emanates in terms of s. 5(1)(c). The effect of s. 5(1)(c)
is that a right of pre-emption does not accrue, on a transfer to
any person mentioned in s. 6, to any person who has an equal or
inferior right of pre-emption. Where a transfer is to any of the
persons mentioned u/s. 6, the right of pre-emption to the claimant
accrues only if the claimant has a superior right. The right of
pre-emption, as Section 4 indicates, is subject to the provisions
of Section 5. Consequently, where any of the provisions of Section
5 come into operation, the right of pre-emption would not be
available. [Paras 12, 13][898-C, G-H; 899 A-C]
1.3 The right of pre-emption is a preferential right to acquire
the property by substituting the original vendee. The transfer or
sale of an immovable property is a condition precedent to the
enforceability of the right. The right of pre-emption is attached
to the property and only on that footing can it be enforced against
the vendee. Though the right is recognised by law, yet it can be
rendered imperfect by the vendor when he transfers the property
to another person who also has a superior right to the pre-emptor.
[Para 15]
1.4 In the instant case, it has come on the record before
the trial court that DC, the predecessor of the appellants, had a
pre-existing right in respect of the amenity of the common
courtyard or sahan. This was admitted in the written statement
filed by BP in the Suit. PW 1 during his cross-examination was
confronted with the above written statement. What emerges from
the above admission is that DC had a right in common in respect
of the amenity of the courtyard. During the course of proceedings
before this Court, it was admitted that the courtyard was shared
between BP and DC. Therefore, both their rights would fall within
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the ambit of the provisions of Section 6(1)(i

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