Case Note & Summary
The appeal arises from a judgment of the Rajasthan High Court dismissing a second appeal under Section 100 of the Code of Civil Procedure, 1908. The dispute concerns a right of pre-emption claimed by Beni Prasad (since deceased, represented by respondents) over a courtyard sold by his brother Kirorilal to Devicharan (predecessor of the appellants) via a sale deed dated 6 January 1990. Beni Prasad and Kirorilal were brothers, and Beni Prasad alleged joint ownership of the courtyard. The suit for pre-emption was filed against Devicharan (first defendant) and Kirorilal (second defendant). The defendants contended that a partition in 1956 had allotted the disputed property to Kirorilal, and that Devicharan also had a right of pre-emption as a co-owner of the courtyard based on a written statement filed by Beni Prasad in an earlier suit. The Trial Court decreed the suit, holding that Beni Prasad had a superior right as a brother. The first appellate court affirmed, and the High Court dismissed the second appeal in limine. The Supreme Court allowed the appeal, holding that under Section 5(1)(c) of the Rajasthan Pre-emption Act, 1966, the right of pre-emption does not accrue if the vendee (Devicharan) also has a right of pre-emption, whether equal or inferior. The Court emphasized that the right of pre-emption is a weak right and the claimant must have a superior right to that of the vendee. Since the courts below failed to consider this statutory bar, the judgment was set aside, and the suit was dismissed.
Headnote
A) Pre-emption Law - Right of Pre-emption - Section 5(1)(c) of Rajasthan Pre-emption Act, 1966 - Bar on Accrual - The right of pre-emption does not accrue on a transfer to any person mentioned in Section 6, to any person who has an equal or inferior right of pre-emption. The claimant must have a superior right to that of the vendee. (Paras 10-13) B) Pre-emption Law - Interpretation of Statutes - Sections 4, 5, 6 of Rajasthan Pre-emption Act, 1966 - The right of pre-emption under Section 4 is subject to Section 5. Section 5(1)(c) provides that no right accrues if the vendee has an equal or inferior right. Section 6 specifies persons entitled to pre-emption, including owners with common amenities. (Paras 10-13) C) Pre-emption Law - Nature of Right - Weak Right - The right of pre-emption is a weak right and can be defeated by lawful means. The plaintiff must have a superior right to that of the vendee or the person substituted in his place. (Para 14)
Issue of Consideration
Whether a right of pre-emption was available to Beni Prasad, who is alleged to be a joint owner in possession of the disputed courtyard, under the Rajasthan Pre-emption Act, 1966, when the vendee Devicharan also had a right of pre-emption.
Final Decision
The Supreme Court allowed the appeal, set aside the judgments of the Trial Court, first appellate court, and High Court, and dismissed the suit for pre-emption. The Court held that under Section 5(1)(c) of the Rajasthan Pre-emption Act, 1966, the right of pre-emption does not accrue if the vendee has an equal or inferior right of pre-emption. Since Devicharan had a right of pre-emption as an owner of a common amenity, Beni Prasad's right, if any, was not superior, and thus no pre-emption right accrued.
Law Points
- Right of pre-emption is a weak right
- Pre-emption right does not accrue if vendee has equal or inferior right
- Section 5(1)(c) of Rajasthan Pre-emption Act
- 1966 bars pre-emption in such cases
- Claimant must have superior right to vendee
