# BHAGWATI PRASAD SAH AND OTHERS v. BHAGWATI PRASAD SAH AND ANOTHER

- **Citation:** [1964] 5 S.C.R. 105
- **Court:** Supreme Court of India
- **Decided:** 1963-10-10
- **Case number:** Civil Appeal No. 672 of 1962
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhagwati-prasad-sah-and-others-v-bhagwati-prasad-sah-and-another-2961
- **Pages:** 17

## Headnote

5 S.C.R.
SUPREME COURT REPORTS
105
BHAGWATI PRASAD SAH AND OTHERS
v.
BHAGWATI PRASAD SAH AND ANOTHER
(P.B.
GAJENDRAGADKAR,
K. SUBBA RAO,
K.N.
WANCHOO, J.C. SHAH AND RAGHUBAR DAYAL JJ.)
Pre-emption-Muhammadan Law-Nature of -If right could
be exercised in respect of lease hold interest-Land sold with house
thereon-If pre-emption allowable regarding house only-Constitutionality of law of pre-emption-Constitution of India, Art. 19(1) (g).
One Chathilal Sah of Sahebganj, Bihar, was the owner of a
house and two galas which stood on a rent-paying land and he
executed a will bequeathing the said property to his daughter and
nephew in equal shares. In 1940 the nephew sold one half of the
property to respondent No. 1 who two years later acquired under
a patta some adjoining lands. In 1949 respondent No. 3 alleging
to be the husband of the daughter sold the remaining half of the
property to appellants 1 and 2. In December 1949 respondent
filed a title suit for declaration that he has a right to pre-empt the
property purchased by appellants 1 and 2 and for directing them
to transfer the same to him. The trial court dismissed the suit
but in the appeal before the Subordinate Judge he succeeded and
the High Court dismissed the appeal presented by the appellant.
The present appeal is by special leave granted by this Court.
Before this Court four contentions were raised by the appellants,
two of which being pure questions of fact and not having been raised
in the courts below were not considered by this Court. The questions of law raised were (a) the right of pre-emption infringes thefundamental right of a citizen under Art. 19 (I) (f) of the Constitution and (b) there is no right of pre-emption in respect of leasehold
interest and therefore there cannot be a right of pre-emption in
respect of a house standing on such land.
Held: (i) The law of pre-emption vis-a-vis co-sharers does
not infringe the funadmental right conferred under Art. 19(1) (f)
of the Constitution.
Bahu Ram v. Bai} Nath, [1962] Supp. 3 S.C.R. 724 and Nuri
Mian v. Ambica Singh, (1917) I.LR. 44 Cal. 47.
(ii) A right of pre-emption is annexed to full ownership of
property of co-sharers. It is not attached to property held on
subordinate tenure, such as lease etc.
It is an incident of the
co-sharer's property operating both as a right and as a burden
in different situations. It is a right of substitution taking in the
entire bargain. It must take the whole or nothing. It does not
matter if the inability to take the house arises out of a voluntary
act or out of a legal limitation inherent in the nature of the property
transferred. It is reciprocal in operation, that is, if the situation
was reversed and the vendor became the pre-emptor, he should
1963
October JO
106
SUPREME COURT REPORTS
[1964]
1963
be in a position to pre-empt the co-sharers' whole bargains. The
two doctrines which may, for convenience be referred to as "entire
Bhagwati Prasad bargain" and "reciprocity" c~nnot operate unles~ both the cos h
sharers are full ·owners of their respec!Ive proper!Ies. Akar or a
a
house standing on a freehold land is subject to the right of prev.
emption, but a house on a,leasehold land stands on a different
Bhagwati Prasadfooting. As there is no right of pre-emption in respect of a land
Sah
on subordinate tenure the right of pre-emption cannot be enforced
against the house either, as the pre-emptor cannot be substituted
for the entire bargain. The right must fail also on the ground
that the super-structure disannexed from the land would be movable
property and it is well settled that the right of pre-emption cannot
be enforced in respect of movables.
Case law reviewed.
Bishan Singh v. Khazan Singh, (1959] S.C.R. 878, Gobind
Dayal v. Inayatullah, (1885) I.L.R. 7 All 775, Sakina Bibi v. Amiran,
(1888) l.L.R. 10 All 472, Dashrathlal v. Bai Dhondubai, A.LR. (1941)
Born. 262, Shri Audh Behari Singh v. Gajadhar Jaipuria, [1955]
1 S.C.R. 70, Mt. Bihi Saleha v. Amiruddin (1929) l.L.R. 8 Pat.

## Text

5 S.C.R.
SUPREME COURT REPORTS
105
BHAGWATI PRASAD SAH AND OTHERS
v.
BHAGWATI PRASAD SAH AND ANOTHER
(P.B.
GAJENDRAGADKAR,
K. SUBBA RAO,
K.N.
WANCHOO, J.C. SHAH AND RAGHUBAR DAYAL JJ.)
Pre-emption-Muhammadan Law-Nature of -If right could
be exercised in respect of lease hold interest-Land sold with house
thereon-If pre-emption allowable regarding house only-Constitutionality of law of pre-emption-Constitution of India, Art. 19(1) (g).
One Chathilal Sah of Sahebganj, Bihar, was the owner of a
house and two galas which stood on a rent-paying land and he
executed a will bequeathing the said property to his daughter and
nephew in equal shares. In 1940 the nephew sold one half of the
property to respondent No. 1 who two years later acquired under
a patta some adjoining lands. In 1949 respondent No. 3 alleging
to be the husband of the daughter sold the remaining half of the
property to appellants 1 and 2. In December 1949 respondent
filed a title suit for declaration that he has a right to pre-empt the
property purchased by appellants 1 and 2 and for directing them
to transfer the same to him. The trial court dismissed the suit
but in the appeal before the Subordinate Judge he succeeded and
the High Court dismissed the appeal presented by the appellant.
The present appeal is by special leave granted by this Court.
Before this Court four contentions were raised by the appellants,
two of which being pure questions of fact and not having been raised
in the courts below were not considered by this Court. The questions of law raised were (a) the right of pre-emption infringes thefundamental right of a citizen under Art. 19 (I) (f) of the Constitution and (b) there is no right of pre-emption in respect of leasehold
interest and therefore there cannot be a right of pre-emption in
respect of a house standing on such land.
Held: (i) The law of pre-emption vis-a-vis co-sharers does
not infringe the funadmental right conferred under Art. 19(1) (f)
of the Constitution.
Bahu Ram v. Bai} Nath, [1962] Supp. 3 S.C.R. 724 and Nuri
Mian v. Ambica Singh, (1917) I.LR. 44 Cal. 47.
(ii) A right of pre-emption is annexed to full ownership of
property of co-sharers. It is not attached to property held on
subordinate tenure, such as lease etc.
It is an incident of the
co-sharer's property operating both as a right and as a burden
in different situations. It is a right of substitution taking in the
entire bargain. It must take the whole or nothing. It does not
matter if the inability to take the house arises out of a voluntary
act or out of a legal limitation inherent in the nature of the property
transferred. It is reciprocal in operation, that is, if the situation
was reversed and the vendor became the pre-emptor, he should
1963
October JO
106
SUPREME COURT REPORTS
[1964]
1963
be in a position to pre-empt the co-sharers' whole bargains. The
two doctrines which may, for convenience be referred to as "entire
Bhagwati Prasad bargain" and "reciprocity" c~nnot operate unles~ both the cos h
sharers are full ·owners of their respec!Ive proper!Ies. Akar or a
a
house standing on a freehold land is subject to the right of prev.
emption, but a house on a,leasehold land stands on a different
Bhagwati Prasadfooting. As there is no right of pre-emption in respect of a land
Sah
on subordinate tenure the right of pre-emption cannot be enforced
against the house either, as the pre-emptor cannot be substituted
for the entire bargain. The right must fail also on the ground
that the super-structure disannexed from the land would be movable
property and it is well settled that the right of pre-emption cannot
be enforced in respect of movables.
Case law reviewed.
Bishan Singh v. Khazan Singh, (1959] S.C.R. 878, Gobind
Dayal v. Inayatullah, (1885) I.L.R. 7 All 775, Sakina Bibi v. Amiran,
(1888) l.L.R. 10 All 472, Dashrathlal v. Bai Dhondubai, A.LR. (1941)
Born. 262, Shri Audh Behari Singh v. Gajadhar Jaipuria, [1955]
1 S.C.R. 70, Mt. Bihi Saleha v. Amiruddin (1929) l.L.R. 8 Pat. 251,
Baboo Ram Go/am Singh v. Nursingh Sabey, (1876) 25 W.R. 43
Mohammad Jamil v. Khub Lal Raul, (1921) 5 Pat. L.J. 740, Phu/
Mohammad Khan v. Qazi Kutubuddin, A.LR. 1937 Pat. 578, Moorool
ly Ram v. Baboo Hori Ram, (1867) 8 W.R. 106, Rameshwar Lal
v. Ramdeo Jha, A.LR. 1957 Pat. 695, Nathuni Ram v. Gopinath,
A.LR. 1962 Pat. 226 (F.B), Zahur v. Nur Ali, (1880) LL.R. 2 All
99 and Chariter Dusadh v. Bhagwati Pandey A.LR. 1934 Pat.
596.
Per Raghubar Dayal J-While agreeing with the majority
judgment on other points, no opinion is expressed on the point
whether in certain circumstances the pre-emptor can or cannot
pre-empt part of the property sold. There have been cases where
partial pre-emption has been allowed.
Zainab Bibi v. Umar Hayat Khan, (1936) AIL L.J. 456 and
Bishan Singh v. Khazan Singh, [1959] S.C.R. 878.
Sale of leasehold interest in land is not pre-emptible and that
the super-structure of the house is also not pre-emptible and therefore the plaintiff-pre-emptor cannot pre-empt the property sold.
The appeal should be allowed.
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
672 of 1962.
Appeal by special leave from the judgment and
order dated December 10, 1958, of the Patna High
Court in Appeal from Appellate Decree No. 716 of
1954.
S.P. Varma, for the appellants.
Sarjoo Prasad and Mohan Behari Lal, for the
respondents.
-
5 S.C.R.
SUPREME COURT REPORTS
107
October 10,
1963.
The Judgment of P. B.
1963
Gajendragadkar, K. Subba Rao, K.N. Wanchoo and
J.C. Shah JJ., was delivered by
Subba Rao J. Bhagwati Prasad
Raghubar Dayal J. delivered a separate Opii1ion.
Sah
SuBBA RAO J.-Thi.s appeal by special leave is
v.
directed against the judgment of the High Court of Bhagwati Prasad
Judicature at Patna and raises mainly the question
Sah
of the scope of the right of pre-emption under the
Mohamedan law as applied by custom in Bihar.
Subba Rao J.
The facts lie in a small compass. On June 17,
1930, Chathilal Sah of Sahebganj, who was the owner
of a house and two galas bearing holdings Nos. 184
and 185 situated in mahalla Sahebganj, executed a
will bequeathing the said property to his daughter
Parbati Kuer and nephew Ram Swamp in equal
shares. Under the said will Ram Swamp was to get
the entire property in case Parbati Kuer died unmarried or issueless. On July 18, 1940, Ram Swamp
sold one-half of the said property to the plaintiffrespondent 1. On July 27, 1942, the plaintiff-respondent 1 acquired under a patta some lands adjoining
the said property. On October 10, 1949, defendant
3 (respondent 3 herein), alleging to be the husband
of the said Parbati Kuer, sold the remaining half
of the disputed property to defendants 1 and 2. It
may be mentioned at this stage that the land on which
the said house and galas stand is Dih-Basgit Lagani
(rent-paying) land. On December 10, 1949, respondent 1 filed Title Suit No. 214 of 1949 in the First
Court of the Munsif at Chapra for a declaration
that he has a right to pre-empt the property purchased
by appellants 1 and 2 and for directing them to transfer the said property to him. To that suit, the first
appellant and his two sons were made defendants
1, 2 and 2A and their vendor was made defendant
3. The defendants contested the suit, inter alia,
on the ground that the ceremonies of pre-emption
were not performed and that under the Mohamedan
law the plaintiff was not entitled to pre-emption,
as the land on which the said house and galas stood
was "rent-paying" land. The learned Munsif dismissed the suit. But, on appeal the Subordinate
108
SUPREME COURT REPORTS
[1964]
1963
Judge of Chapra allowed the appeal and granted a
-
decree for pre-emption in favour of the plaintiff-responBhagwa1i Prasad dent I. On appeal, the High Court agreed with the
Sah
Subordinate Judge and dismissed the appeal. Defenv.
dants l, 2 and 2A have preferred the present appeal by
Bhagwati Prasad special leave against the Judgment of the High Court.
Sah
Mr. Varma, learned counsel for the appellants,
raised before us the following four points: (1) the
Subba Rao J. right of pre-emption infringes the fundamental right
of a citizen under Art. 19(1) (f) of the Constitution
and it is not saved by cl. (5) thereof: (2) the first respondent failed to establish his title and, therefore,
his suit should have been dismissed on that ground;
(3) the ceremonies of pre-emption were performed
only on October 11, 1949 whereas the sale deed in
favour of the appellants was executed and registered
on October 20, 1949 and, as the said performance
of the ceremonies was premature, they having been
performed before the sale was completed, the right
of pre-emption could not be enforced; and (4) there
is no right of pre-emption in respect of leasehold
interest and, therefore, there cannot be a right of
pre-emption in respect of a house standing on such
land, as Mohamedan law does not recognize a right
of pre-emption in mere super-structure.
·
Mr. Sarjoo Prasad, learned counsel for the respondents controverts the correctness of the said
propositions. We shall deal with his arguments in
the course of the judgment.
To appreciate the first contention, some dates
may be recapitulated. Respondent 1 purchased onehalf share of the property by a sale deed dated July
18, 1940. Appellants 1 and 2 purchased the other
half of the property on October 10, 1949. The suit
was filed on December 10, 1949. The Munsif dismissed the suit on April 14, 1953. The Constitution came into force on January 26, 1950. The appellants had no fundamental right on the date when
they purchased the property. But it is said that
under the law of pre-emption a person who seeks
the assistance of a court with a view to enforce the
right of pre-emption is bound to establish that the
...
5 S.C.R.
SUPREME COURT REPORTS
109
right existed on the date of the sale, on the date of
1963
the institution of the suit, and also on the date of
.
the decree of the primary court-See Nuri Mian v. Bhagwatz Prasad
Ambica Singh0 i ancl, therefore, the restriction on
Sah
the appellants' fundamental right to acquire the properv.
ty was not finally imposed before the Constitution, Bhagwati Prasad
but became crystallized into an irrevocable restriction
Sah
only at the time of the passing of the decree which
was subsequent to the coming into force of the ConSubba Rao J.
stitution. We need not express our opinion on this
question, as it has been held by this Court in Bhau Ram
v. Baij Na1Jz< 2i that a right of pre-emption vis-a-vis
co-sharers was not an unreasonable restriction on
the fundamental right of a person to acquire, hold
and dispose of property. But learned counsel contends that that decision should be confined to a case
of co-sharers who are related to each other, and should
not be extended to co-sharers who are not related
to each other. Reliance is placed upon the following
observations in that judgment found at p. 1483:
"If an outsider is introduced as a co-sharer in
a property it will make common management
extremely difficult and destroy the benefits of
ownership in common."
This sentence does not, in our view, sustain the distinction sought to be made by the learned counsel
between co-sharers who are relatives and co-sharers
who are not relatives. The word "outsider" in the
said passage can only mean a person who is not a
co-sharer. The judgment of this Court finally settled
the question as between co-sharers. Following the
decision we hold that the law of pre-emption vis-a-vis
co-sharers does not infringe the fundamental right
conferred under Art. 19 (I) (f) of the Constitution.
The second question, namely, that of the plaintiff's
title does not call for consideration by us. It was
not raised in the courts below, and it being a pure
question of fact, we cannot allow it to be raised for
!he first time before us. We, therefore, disallow
It.
(I) [1917] I.L.R. 44 Cal. 47.
(2) A.LR. 1962 S.C. 1476.
110
SUPREME COURT REPORTS
[1964]
1963
The next point raised by the learned counsel is
-
that the ceremonies of pre-emption performed in this
Bhagwati Prasad case were premature, as the sale was completed only
Sah
on October 20, 1949 whereas the ceremonies were
v:
performed on October 11, 1949. This Court, by
Bhagwati Prasada majority, held in Ram Saran v. Domini KuerU>
Sah
that the registration under the Registration
Act
is not complete till the document to be registered
Subba Rao J. has been copied out in the records of the Registration Office as provided in s. 61 of that Act. Learned
counsel contends that a perusal of the sale deed dated
October 10, 1949, ex facie shows that it was copied
only on October 20, 1949. The question as to when
a document was copied out in the concerned register
is certainly a question of fact. The argument was
not raised either before the trial court or before the
first appellate court. No issue was framed on the
point. It was raised for the first time before the High
Court. The learned Judges of the High Court pointed out that if the appellants wanted to take advantage
of the said point, it was their duty to have raised it
either in the trial court or in the first appellate court
and to have adduced evidence by calling for the register from the registration department to show on
what date the actual copying of the record was made
under s. 61 of the Registration Act. In the circumstances, the learned Judges refused to allow the
appellants to raise the point. The High Court, in
our opinion, was certainly right in disallowing the
appellants from raising the question of fact for the
first time in second appeal. ff the plea had been taken
at the earliest point of time, the respondents might
have bad many defences and might have explained
the various dates found on the documents. We
cannot allow the appellants to raise the said plea.
Now we come to the substantial point raised
in the appeal. The right of pre-emption is sought
.•
•
r
•
to be enforced in respect of a rent-paying land with
a house thereon. Learned counsel for the appellants
contends that the right of pre-emption does not arise
(J',
(1)
A.l.R. 1961 S.C. 1747.
r
. '
-
5 S.C.R.
SUPREME COURT REPORTS
111
on the sale of a leasehold interest in land and that
1963
in the absence of such a right there cannot be a right
-.
of pre-emption in respect of the super-structure Bhagwat1 Prasad
alone. Learned counsel for the respondents, on the
Sah
other hand, contends that under Mohamedan law
v.
the right of pre-emption exists in the case of akar Bhagwati Prasad
i.e., a house or mansion, to enable the co-sharer to
Sah
have peaceful enjoyment thereof and that the fact
that there is no right of pre-emption in respect of a
Subba Rao J.
leasehold interest in land does not in any way detract
from that right. He further contends that whatever
might have been the strict incidents of the right of
pre-emption under Mohamedan law, this Court cannot
ignore the modern evolution of law recognizing the
transferability and heritability of leasehold interest
in land.
Before we consider the problem thus presented
for our decision, it would be convenient at the outset
to notice certain general principles relevant to the
present enquiry. It has not been disputed that Hindus
in the Province of Bihar came to adopt the Mohamedan
law of pre-emption as a custom. This was because
under the Muslim rule the law of pre-emption under
the Mohamedan law was administered as a rule of
common law of the land in those parts of the country
which came under their domination.
We must,
therefore, look to Mohamedan law to ascertain the
incidents of the right of pre-emption unless it is established in a particular case that by custom the
said law has been modified to any extent. Being a
customary law, it is not permissible for courts to
extend the custom beyond the limits within which
upto now it has been recognized.
The concept
of rationalization is out of place in the ascertainment
of the customary incidents of the right of pre-emption.
This Court in Bishan Singh v. Khazan Singh< 1i considered the law on the subject and laid down the
propositions flowing from the discussion. The following propositions are relevant to the present enquirv:
(I) The right of pre-emption is simply a right of sub-
(lf[I959J S.C.R. 878.
112
SUPREME COURT REPORTS
[1964]
"
1963
stitution, but not of re-purchase i.e., the pre-emptor
takes the entire bargain .and steps into the shoes of
Bhagwati Prasad the original vendee; (2) it is a right to acquire the
Sah
whole of the property sold and not a share of it;
v.
and (3) the right being a very weak right, it can be
Bhagwati Prasaddefeated by all legitimate methods, such as the vendee
Sah
allowing the claimant of a superior or equal right
being substituted in his place. It is, therefore, settled
Subba Rao J. law that the pre-emptor must take the entire bargain:
he cannot split up the bargain and claim to be substituted in respect of a portion ·or it either on the ground
that he does not require a part of it or for the reason
that he is entitled to claim pre-emption only in respect
of a part qf it. Further, the right being a weak one,
a court need not be astute to rationalize the doctrine
so as to make it fit into modern trends of property
law.
Indeed, it should be reluctant to extend it
beyond the incidents clearly recognized by Mohamedan
law or by custom.
With this background let us now turn to the
question that arises in this case.
The subject can
conveniently be considered under three heads: ti)
the pre-emptor; (ii) the vendor; and (iii) the property
in respect of which the right is claimed. In Baillie's
"Digest of Moohummudan Law" the following passage
appears at p. 478:
"When it is said that akar (such as mansions,
vine-yards and other kinds of land) are proper
objects of the right of pre-emption, it is by virtue
of a rjght of milk, or ownership, that they are
so."
Mahmood J. in Gobind Dayal v. Jnayatullahf 1> observed
at p. 779 thus:
"Pre-emption is a right which the owner of certain immovable property possesses, as such, for
the quiet enjoyment of that immovable property,
to obtain, in substitution for the buyer, proprietary possession of
certain other immovable
property, not his own, on such terms as these
(I)
(1885) I.LR. 7 All. 775.
\
,_,._ ,.,.....,..
<.
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5 S.C.R.
SUPREME COURT REPORTS
113
on which such latter immovable property is
1963
sold to another person."
Bhagwati Prasad
The same learned Judge in Sakina Bibi v. Amiran<1>
Sah
st1tes that in the pre-emptive tenement (the tenement
v.
by the ownership of which the pre-emptor wants Bhagwati Prasad
to exercise his right of pre-emption ), the pre-emptor
Sah
should have vested ownership and not a mere expectancy of inheritance or a reversionary right, or any other
Subba Rao J.
kind of contingent right, or any interest which falls
short of full ownership. Beaumont C.J. in Dashrathlal
v. Bai Dhondubai<2>, after considering the law on the
subject, accepted the view that the custom of preemption only exists as between freeholders, that
is to say neighbouring lands in respect whereof the
custom is claimed to apply must be freehold and that
the land sought to be pre-empted must also be free
hold. This Court, in Shri Audh Bihari Singh v.
Gajadhar Jaipuria< 3>, has laid down the correct legal
position thus:
" ........ the benefit as well as the burden
of the right of pre-emption run with the land
and can be enforced by or against the owner
of the land for the time being although the right
of the pre-emptor does not amount to an interest
in the land itself."
This legal requirement of the full ownership of the
pre-emptor may be traced either to the fact that
"in ancient times Mohamedan law did hot recognize
leases although it recognized hire ofland for the purpose
of user, or to the circumstance that the right was
conferred to enable the pre-emptor to prevent an
undesirable person from becoming his neighbour"
which would not be the case if he was only a temporary
occupant of the property in respect whereof the right
arose. Whatever may be the reason, it may safely
be held now that the pre-emptor must be the owner
of the property in respect whereof he claims the right
of pre-emption.
(!) (1888) I.L.R. IOAll. 472, 477.
(2) A.LR. 1941 Bom.262.
(3) [1955] l S.C.R. 70, 80.
I SCI/64-8
114
SUPREME COURT REPORTS
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1963
The next question, namely, the quantum of
·-
interest which the vender shall possess in the land
Bhagwati Prasad sought to be pre-empted depends upon the doctrine
Sah
of reciprocity. Unless the land in respect of which
v.
the custom is claimed and the land sought to be preBhagwati Prasad empted are freeholds, the principle of reciprocity
Sah
will be defeated. To illustrate: "A" has full ownership
in a land in respect of which he claims the right of
Subba Rao J. pre-emption; the co-sharer vendor has only a leasehold
interest in respect of the land sought to be pre-empted;
if the pre-emptor had ~old the land earlier, the vendor
having only a leasehold interest in his land, could
not have claimed the right of pre-emption in respect
of his land, for he had no full ownership in the land.
The absence of this reciprocity gives an advantage
to one of the sharers which the Mohamedan law
does not permit. This doctrine of reciprocity has
been succinctly stated by Mahmood J. in Gobind
Dayal v. InayatullaH 1> in the passage we have extracted earlier. In Mt. Bibi Saleha v. Amiruddin<2>
the said doctrine was re.stated. It was held therein
that a mukarraridar holding under a co-sharer had
no right to pre-empt as against another co-sharer
and as a mukarraridar could not claim pre-emption,
the co-sharer on the doctrine of reciprocity, which
is well understood in the Mohamedan law, could
not claim pre-emption against the mukarraridar.
A Full Bench of the Bombay High Court in Deshrathlal
v. Bai Dhondubai<3> has given its approval to the
said principle. This Court in Shri Audh Behari
Singh v. Gajadhar Jaipuria< 4> succinctly put the legal
position in the following words:
"The crux of the whole thing is that the benefit
as well as the burden of the right of pre-emption
run with the land and can be enforced by or
against the owner of the land for the time being
although the right of the pre-emptor does not
amount to an interest in the land itself."
That leasehold interest is not subject to the law of
pre-emption has been well settled: see Baboo Ram
(1) [1885] l.L.R. 7 All. 775.
(2) [1929] I.L.R. 8 Pat. 251.
()) A.I.R. 1941 Born. 262.
(4) [1955] l S.C.R. 70, 80.
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~' 5 S.C.R.
SUPREME COURT REPORTS
115
'
....
-
Go/am Singh v. Nursingh SabeyCl>, Mohammad Jamil
1963
v. Khub Lal Raut<2'; Sakina Bibi v. Amiran<"'; Phu/
--
Mohammad Khan v. Qazi Kutubuddin< 4 '; Moorooly Bhagwati Prasad
Ram v. Baboo Hari Ramm; Rameshwar Lal v. Ramdeo
Sah
Jha< 6'; and Nathuni Ram v. Gopinath<7l.
Indeed this
v:
legal position has not been controverted by learned Bhagwati Prasad
counsel for the respondents.
Sah
Now let us address ourselves to the main conSubba Rao J.
tention of the respondents, namely, that the right of
pre-emption exists in the Mohamedan law in respect
of akar which includes a building, that the main purpose
intended to be served by the said right is to prevent
an undesirable person from becoming the sharer
of the house and that, therefore, it would be unrealistic
to negative that right in the case of a house on the
ground that the land on which the house stands is
a leasehold interest. Reliance is placed upon the
following passage in Charles Hamilton's "The Heda ya",
2nd Edn., at p. 558 :-
"It is observed, in the abridgment of Kadooree,
that Shaffa does not affect even a house or trees
when sold separately from the ground on which
they stand. This opinion (which is also mentioned
in the Mabsoot) is approved; for as buildings
and trees are not of a permanent nature, they
are therefore of the class of movables."
Relying upon this passage it is contended that, as
in the present case the house was sold along with the
ground, the doctrine of "Shalfa" applies to the house.
But this passage must be understood on the assumption
that the right of pre-emption exists in respect of the
land on which the house stands. Jn Baillie's "Digest
of Moohummudan Law", the legal position is made
clear. Therein the author says at pp. 479-480:
"When a person has purchased a palm-tree to
cut it down, or when he has purchased it absolutely, there is no right of pre-emption in it. But
(I) [1876] 25 W.R. 43.
(2) [1921] 5 Pat. L.J. 740.
(3) [1888] LL. R. JO All. 472, 477.
(4) A.LR. 1937 Pat. 578.
(5) [1867] 8 W.R.106.
(6) A.LR. 1957!Pat. 695.
(7) A.LR. 1962 Pat. 226 (F.B.)
1963
Bhagwati Prasad
Sah
v.
Bhagwatl Prasad
Sah
Subba Rao/.
116
SUPREME COURT REPORTS
[1964]
if it be purchased with its roots and the ground
on which it stands, it is liable to the right. The
rule is the same with regard to buildings purchased
for removal, and the same buildings purchased
with their foundations; and there is no preemption in the former case, while there is in the
latter."
This passage indicates that a building sold as a superstructure is not subject to the right of pre-emption,
for it would be in effect a sale of a movable. Unless
the!house is sold with its foundations, that is to say
with the land on which it stands, there is no right of
pre-emption in regard thereto. Though it may be
said that in the present case the house was sold with
its foundations, the same principle will have to be
applied, for the right of pre-emption cannot be invoked in the case of a leasehold interest. In effect
and substance the right is sought to be invoked in
the case of the building debors the foundations which
the law does not permit. Reliance is placed upon
the proposition found in para. 370. of Wilson's AngloMuhammadan Law, which reads:
"If a house is sold apart from the ground on
which it stands with a view to being pulled down,
so that it is in fact a sale of the materials, no
right of pre-emption arises with respect to it.
If it is sold for occupation as a house, then preemption can be claimed on the ground of vicinage
by the owner of any adjoining land or house
(and perhaps by the owner of the site itself, supposing him to be a different person from the vendor
of the house, even though he should happen
to own no land except that covered by the house)."
It is said that the words in the brackets conceding
the right of the owner of a site to pre-empt the house
sold as a house indicates that the real principle is
whether the house is sold as a habitate or only as
materials and that in the former case irrespective of
the ownership of the land or the existence of the
right of pre-emption in respect thereof, the sale of
the house can be pre-empted.
The opening word
11111 .t
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{
. y •
..
Ill/
5 S.C.R.
SUPREME COURT REPORTS
117
of the passage, namely, "perhaps", shows that the
196J
author himself is not sure of the legal position. That
--:-
apart, the illustration only deals with a land in respect Bhagwati Prasad
of which there can be a right of pre-emption, i.e.,
Sah
the owner of the land has a freehold interest therein.
v.
Strong reliance is placed upon the decision of a Division Bhagwati Prasad
Bench of the Allahabad High Court in Zahur v. Nur
Sah
Afi<
1 >.
There, a dwelling house was sold as a house
Subba Rao J.
to be inhabited as it stood with the same right of
occupation as the vendor had enjoyed, but without
the ownership of the site. It was held that the right
of pre-emption under the Mobamedan law attached
to such house. The judgment is not a considered
one. The learned Judges observed at p. 100 thus:
"The seller not only sold the materials of the
house, but such interest as he possessed as an
occupier of the soil. The house was sold as
a house to be inhabited on the spot with the
same right of occupation as the seller had enjoyed."
The learned Judges distinguished the texts cited on
the ground that they applied only to the sale of the
materials of a house or a house capable of and intended
to be removed from its site. This judgment no doubt
supports the contention of learned counsel for the
respondents; but the learned Judges have not considered the well settled principle that there cannot
be a right of pre-emption in respect of a land over
which the vendor has no full ownership. The decision
suffers from the infirmity that the said well settled
principle has escaped the attention of the court.
Reliance is also placed on the decision of a Division
Bench of the Patna High Court in Chariter Dusadh
v. Bhagwati Pandey<2 >.
There, the question was
whether the pre-emptor had the milkiyat or ownership in the property on account of which he claimed
the right of pre-emption. The pre-emptor was birtdar
thom1h he was described as a tenant in the Recordof-Rights for a particular purpose. The court held
(I) (1880) I.L.R. 2 All. 99.
(2) A.I.R. 1934 Pat. 596.
118
SUPREME COURT REPORTS
[1964]
1963
that he was a full owner. This decision does not
--
really support the respondents. There is a direct
Bhagwati Prasaddecision of a Full Bench of the Patna High Court
Sah
on the question now raised, in Nathuni Ram v. Gopiv.
nathCll.
There, as here,
a right of pre-emption
Bhagwati Prasadwas claimed in respect of a house which stood on a
Sah
leasehold land. After a full discussion of the subject,
Choudhary J., speaking for the Full Bench, came
· Subba Rao J. to the following decision, at p. 229:
"On a careful consideration of the authorities
and the principle of law involved in the case,
my concluded opinion is that, in case of a sale
of different properties, the right of pre-emption
cannot be exercised with respect to one or some
of them only if the enjoyment thereof is dependent
on the property over which that right is not and
cannot be exercised in law and consequently,
where the land is sold with a house thereon,
pre-emption cannot be allowed with respect to
the house only apart from the land over which
the right could not be exercised on account of
its being a leasehold property. The sale of a
house for inhabitation or occupation, without
the sale of its foundations and the land over
which the foundations stand, is inconceivable,
except, as pointed out in Hedaya, in case of the
sale o~ the upper storey of a house."
We agree with the conclusion. As this judgment
has considered the earlier decisions on the subject,
we need not again refer to them. ·
To summarize: A right of pre-emption is annexed
to full ownership of property of co-sharers. It is
not attached to property held on subordinate tenure,
such as leases etc. It is an incident of the co-sharer's
property operating both as a right and as a burden
in different situations. It is a right of substitution
taking in the entire bargain. It must take the whole
or nothing. It does not matter if the inability to
take the whole arises out of a voluntary act or out
of a legal limitation inherent in the nature of the
(!) A.I.R. 1962 Pat. 226 (F.B.)
ii--
f
..
5 S.C.R.
SUPREME COURT REPORTS
119
property transferred. It is reciprocal in operation,
1963
that is, if the situation was reversed and the vendor
--
became the pre-emptor, he should be in a position Bhagwati Prasad
to pre-empt the co-sharer's whole bargain. The
Sah
two doctrines which may, for convenience, be referred
v:
to as "entire bargain" and "reciprocity" cannot Bhagwati Prasad
operate unless both the co-sharers are full owners
Sah
of their respective properties. Akar or a house standSubba Rao J.
ing on a freehold land is subject to the right of preemption, but a house on a leasehold land stands
on a different footing.
As there is no right of preemption in respect of a land held on a subordinate
tenure, the right of pre-emption cannot be enforced
against the house either, as the pre-emptor cannot
be substituted for the entire bargain. The right
must fall also on the ground that the super-structure
disannexed from the land would be movable property
and it is well settled that the right of pre-emption
cannot be enforced in respect of movables.
We, therefore, hold that the first respondent
has no right to pre-empt the sale executed in favour
of the appellants. In the result, the appeal is allowed,
the decrees of the Subordinate Judge's Court and the
High Court are set aside and that of the trial Court
is restored. The appellants will have their costs
throughout.
RAGHUBAR DAYAL J.--1 agree that the law of Raghubar Dayal
pre-emption regarding co-sharers does not infringe
/,
the fundamental right conferred under Art. 19(l)(g),
that the pre-emptor must be the owner of the property
in respect whereof he claims the right of pre-emption,
that the vendor must have proprietary right in the
property sold and sought to be pre-empted, that the
sale of lease-hold interest is not subject to the law of
pre-emption and that the sale of the super-structure
of a house is not pre-emptible.
I also agree that
the pre-emptor must pre-empt for the entire property
sold if that be pre-emptible. I would, however,
not like to express an opinion upon the point whether,
in certain circumstances, the pre-emptor can or cannot
120
SUPREME COURT REPORTS
[1964]
1963
pre-empt part of the property sold. There have been
cases where partial pre-emption has been allowed.
Bhagwati PrasadSome of the exceptional cases have been referred
Sah
to at p. 778 of 'Muslim Law as Administered in India
v.
& Pakistan' by K.P. Saksena, IV Edition.
Bhagwati Prasad
In Zainab Bibi v. Umar Hayat Khan< 1 > the preSah
emptor was allowed to pre-empt that part of the properR h -b -D
1 ty sold which was pre-emptible and in support of the
ag u ar
aya d · ·
't
t t d
457
1
ec1s10n 1 was s a e at p.
:
·
"So far as the Mohammedan Law is concerned,
there is no doubt that where several properties
are sold in portions of which a pre-emptor bas
the right of pre-emption, he is entitled to preempt that portion only on payment of a proportionate price. On this point there was a consensus of opinion among the three Imams as
quoted in the Fatawa Alamgiri, referred to in
Omur Khan v. Mooras Khan (1865 N.W.P.,
H.C.R. 173, 174)"
This Court did express an opinion in Bishan
Singh v. Khazan Singh< 2>:
"The general law of pre-emption does not recognize any right to claim a share in the property
sold when there are rival claimants. It is wellestablished that the right of pre-emption is a
right to acquire the whole of the property sold
in preference to other persons (See Moo! Chand
v. Ganga Jal : ILR 11 Lah. 258, 273)"
Jn that case the dispute lay between two rival preemptors and arose in these circumstances. One preemptor pre-empted the entire sale and obtained the
decree on condition that he would deposit a certain
amount within a certain time. But, before he could
deposit the amount, the rival pre-emptor instituted
another suit for the pre-emption of the entire property
sold and impleaded in that suit the first pre-emptor.
The rights of the two pre-emptors were found to be
equal. · The entire property sold was clearly preemptible. It was, in this context, that the observation
(1) 1936 A.t:.J. 456.
(2)
[1959] S.C.R. 878, 884·
.11
I
L
l
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5 S.C.R.
SUPREME COURT REPORTS
121
was made. It would be a matter for consideration
1963
at the appropriate time whether there can be any
--
exception to this general rule that the entire property Bhagwati Prasad
sold must be pre-empted by the pre-emptor in his
Sah
suit.
v.
·
. .
Bhagwati Prasad
I would therefore rest my dec1S1on on the facts
s: h
that the sale of the lease-hold interest in land is not
_a_
pre-emptible and that the super-structure of the house Raghubar Dayal
is also not pre-emptible and that therefore the plaintiffJ
pre-emptor cannot pre-empt the sale of the property
·
sold. I therefore agree that the appeal be allowed,
the decrees of the Subordinate Judge and the High
Court be set aside and that of the trial Court be restored
and that the appellants would have their costs throughout.
Appeal allowed.
RAJ KISHORE TEWARI
v.
GOVINDARAM BHANSALI
(P.B.
GAJENDRAGADKAR,
K. SUBBA
RAO,
K.N.
WANCHOO, J.C. SHAH AND RAGHUBAR DAYAL JJ.)
West Bengal Premises Rent Control (Temporary Provisions)
Act, 1950 (Act 17of1950), s. 13 (2).-Determination of sub tenancyWhether tenancy starts from the date of ejectment of the tenant of
the first degree-Effect of s. 13 (2).
The appellant was a sub-tenant of S on a monthly basis commencing from April I, 1954. S was the tenant of the Respondent
from September 15, 1943 on a monthly rental. On June 16, 1955,
the respondent obtained a decree of ejectment against S.
In view
of sub-s(2) of s. 13 of the West Bengal Premises Rent Control
(Temporary Provisions) Act, 1950, the appellant became the tenant
of the respondent after the determination of the tenancy of S .
The respondant gave a notice to the appellant asking him to deliver
posse\sion of the premises on the expiry of the last day of April
1963
October JO