Bhagwati Prasad Sah And Others vs Bhagwati Prasad Sah And Another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 672 of 1962

Decision Date: 10 October 1963

Coram: P.B. Gajendragadkar, K. Subba Rao, K.N. Wanchoo, J.C. Shah, Raghubar Dayal

In this case the Supreme Court of India rendered its judgment on 10 October 1963 in the matter of Bhagwati Prasad Sah and others versus Bhagwati Prasad Sah and another. The bench that heard the appeal comprised P B Gajendragadkar, K Subba Rao, K N Wanchoo, J C Shah and Raghubar Dayal. The petitioner was Bhagwati Prasad Sah together with other persons and the respondent was Bhagwati Prasad Sah and another. The dispute concerned the statutory provision on pre‑emption under Muhammadan law, specifically whether the right of pre‑emption could be exercised with respect to a lease‑hold interest, whether pre‑emption could apply only to a house standing on land that had been sold, and whether the law of pre‑emption was consistent with Article 19(1)(g) of the Constitution of India. The headnote summarises the factual background. One Chathilal Sah of Sahebganj, Bihar owned a house and two golas (out‑buildings) situated on land that he occupied by paying rent. He executed a will bequeathing the house and the two golas in equal shares to his daughter and to his nephew. In 1940 the nephew transferred one half of the property to the first respondent. Two years later that respondent obtained, under a patta, certain adjoining lands. In 1949 the third respondent, alleging to be the husband of the daughter, sold the remaining half of the property to the first and second appellants. In December 1949 the third respondent instituted a suit seeking a declaration that he possessed a pre‑emptive right over the portion purchased by the appellants and also seeking an order directing the appellants to transfer that portion to him. The trial court rejected the suit. On appeal before a Subordinate Judge the third respondent succeeded, but the High Court thereafter dismissed the appeal filed by the appellants. The appellants obtained special leave to appeal before this Court. The appellants raised four points, two of which were pure factual matters that had not been raised before the lower courts and therefore were not considered by this Court. The legal issues that the Court examined were: (a) whether the right of pre‑emption infringed the fundamental right guaranteed by Article 19(1)(f) of the Constitution, and (b) whether a right of pre‑emption exists in respect of a lease‑hold interest, and consequently whether such a right could be claimed over a house standing on lease‑hold land. The Court held that the law of pre‑emption as it applies between co‑sharers does not violate the fundamental right contained in Article 19(1)(f). The Court referred to earlier decisions such as Bahu Ram v Baij Nath and Nuri Mian v Ambica Singh. The Court further held that the right of pre‑emption is attached only to full ownership of property by co‑sharers and does not extend to property held under a subordinate tenure such as a lease. The right functions as an incident of ownership, operating both as a right and as a burden, and it requires the purchase of the whole bargain; it cannot be exercised partially. The Court observed that it is irrelevant whether the inability to acquire the house stems from a voluntary act or from a legal limitation inherent in the nature of the transferred property, and that the right operates reciprocally.

The Court observed that if the roles were reversed and the vendor assumed the position of the pre‑emptor, he would be entitled to pre‑empt the entire bargains of the co‑sharers. Accordingly, the doctrines described as “entire bargain” and “reciprocity” could operate only when each co‑sharer possessed full ownership of his respective property. A house situated on a freehold plot was subject to a right of pre‑emption, whereas a house erected on lease‑hold land occupied a different legal position. Because no right of pre‑emption exists with respect to land held under a subordinate tenure, that right could not be enforced against the house, since the pre‑emptor could not be substituted for the whole bargain. Moreover, the Court held that the right must also fail on the ground that the super‑structure, once separated from the land, became movable property, and it is well‑settled that pre‑emption cannot be enforced in respect of movables. The Court reviewed a series of authorities, including Bishan Singh v. Khazan Singh [1959] S.C.R. 878, Goblad Dayal v. Inayatullah (1885) I.L.R. 7 All 775, Sakina Bibi v. Amiran (1888) I.L.R. 10 All 472, Dashrathlal v. Bai Dhondubai A.I.R. (1941) Bom. 262, Shri Audh Behari Singh v. Gajadhar Jaipuria [1955] 1 S.C.R. 70, Mr. Bibi Saleha v. Amiruddin (1929) I.L.R. 8 Pat. 251, Baboo Ram Golam Singh v. Nursingh Sabey (1876) 25 W.R. 43, Mohammad Jamil v. Khub Lal Raut (1921) 5 Pat. L.J. 740, Phul Mohammad Khan v. Qazi Kutubuddin A.I.R. 1937 Pat. 578, Mooroof ly Ram v. Baboo Hari Ram (1867) 8 W.R. 106, Rameshwar Lal v. Ramdeo Jha A.I.R. 1957 Pat. 695, Nathuni Ram v. Gopinath A.I.R. 1962 Pat. 226 (F.B), Zahur v. Nur Ali (1880) I.L.R. 2 All 99 and Chariter Dusadh v. Bhagwati Pandey A.I.R. 1934 Pat. 596. In a separate note, Justice Raghubar Dayal, while concurring with the majority on other issues, did not express an opinion on whether, in certain circumstances, the pre‑emptor could acquire only a part of the property sold. The judgment observed that some cases have permitted partial pre‑emption, citing Zainab Bibi v. Umar Hayat Khan (1936) All. L.J. 456 and Bishan Singh v. Khazan Singh [1959] S.C.R. 878. The Court concluded that a lease‑hold interest in land is not subject to pre‑emption and that the house’s super‑structure is also not pre‑emptible, thus the plaintiff‑pre‑emptor could not exercise the right to pre‑empt the property sold. Consequently, the appeal was allowed. The judgment recorded the civil appellate jurisdiction, noting Civil Appeal No. 672 of 1962, filed by special leave from the Patna High Court judgment dated 10 December 1958 in Appeal from Appellate Decree No. 716 of 1954. Counsel appeared for the appellants and respondents. The judgment, dated 10 October 1963, was delivered by Justices P.B. Gajendragadkar, K. Subba Rao, K.N. Wanchoo and J.C. Shah, with a separate opinion by Justice Raghubar Dayal. The primary issue before the appellate court concerned the scope of the right of pre‑emption under Mohamedan law as applied by custom in Bihar.

In this appeal the Court examined the extent of the right of pre‑emption that is recognised under the Mohamedan law as it is applied by custom in Bihar. The relevant facts are confined to a limited set of transactions. On 17 June 1930 Chathilal Sah of Sahebganj, who owned a house together with two golas bearing holdings numbers 184 and 185 situated in the mahalla of Sahebganj, executed a will that left the said property in equal shares to his daughter Parbati Kuer and to his nephew Ram Swarup. The will stipulated that Ram Swarup would obtain the whole property if Parbati Kuer died without having married or borne any children. Subsequently, on 18 July 1940 Ram Swarup sold one‑half of the property to the plaintiff‑respondent 1. On 27 July 1942 the same plaintiff‑respondent obtained, by a patta, certain lands that adjoined the property in question. Later, on 10 October 1949 defendant 3, who claimed to be the husband of Parbati Kuer, conveyed the remaining half of the disputed property to defendants 1 and 2. It is necessary to note that the land on which the house and golas were situated was classified as Dih‑Basgit Lagani, that is, rent‑paying land. On 10 December 1949 respondent 1 instituted Title Suit No. 214 of 1949 in the First Court of the Munsif at Chapra, seeking a declaration that he possessed a right to pre‑empt the portion of the property that had been bought by appellants 1 and 2 and requesting an order directing the appellants to transfer that portion to him. In that suit the first appellant and his two sons were impleaded as defendants 1, 2 and 2A, and the vendor was made defendant 3. The defendants opposed the suit, asserting, among other points, that the ceremonies required for pre‑emption had not been performed and that, under Mohamedan law, the plaintiff could not claim pre‑emption because the land supporting the house and golas was rent‑paying land. The learned Munsif dismissed the suit. Upon appeal, the Subordinate Judge of Chapra reversed that decision and granted a decree of pre‑emption in favour of plaintiff‑respondent 1. The High Court, on further appeal, upheld the Subordinate Judge’s decree and dismissed the appeal.

Defendants 1, 2 and 2A have now filed the present appeal by special leave against the High Court’s judgment. Counsel for the appellants advanced four points for consideration. First, they argued that the right of pre‑emption violates the fundamental right guaranteed under Article 19(1)(f) of the Constitution and that this violation is not saved by clause (5) of the same article. Second, they contended that the first respondent failed to establish his title to the property, and consequently his suit should have been dismissed on that basis. Third, they maintained that the pre‑emptive ceremonies were performed on 11 October 1949, whereas the sale deed in favour of the appellants was executed and registered on 20 October 1949; because the ceremonies were therefore premature and occurred before the sale was completed, the right of pre‑emption could not be enforced. Fourth, they submitted that Mohamedan law does not recognise a right of pre‑emption in respect of lease‑hold interests, and consequently no pre‑emptive right could arise in relation to the property at issue.

In this case the Court observed that Mohamedan law does not acknowledge a right of pre‑emption in a mere super‑structure such as a house standing on land. Counsel for the respondents, Mr. Sarjoo Prasad, disputed the correctness of that proposition, and the Court indicated that the arguments of that counsel would be examined later in the judgment. To understand the first contention, the Court set out a chronology of the relevant transactions. Respondent 1 acquired a one‑half share in the disputed property by a sale deed dated 18 July 1940. The appellants, identified as Appellants 1 and 2, purchased the remaining one‑half share on 10 October 1949. The suit challenging the right of pre‑emption was filed on 10 December 1949, and the Munsif dismissed the suit on 14 April 1953. The Constitution of India came into force on 26 January 1950; consequently the appellants did not possess any constitutional fundamental right at the time they bought their share. The Court noted that under the law of pre‑emption a party seeking judicial enforcement must prove that the pre‑emption right existed at three distinct moments: on the date of the sale, on the date the suit was instituted, and on the date the decree of the lower court was passed, as explained in Nuri Mian v. Ambica Singh (1). Accordingly, the restriction on the appellants’ fundamental right to acquire the property was not imposed before the Constitution took effect; it only became a permanent restriction when the decree was issued after the Constitution’s commencement. The Court did not need to reconsider this issue because it had already been decided in Bhau Ram v. Baij Nath (2), where the Court held that a right of pre‑emption among co‑sharers did not constitute an unreasonable restriction on the fundamental right guaranteed by Article 19(1)(f) to acquire, hold and dispose of property. Counsel for the appellants argued that the decision in Bhau Ram should be limited to co‑sharers who are relatives and should not extend to co‑sharers who are unrelated. That counsel relied on a passage from the judgment at page 1483 stating, “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.” The Court found that this passage does not support the distinction proposed, because the term “outsider” refers to a person who is not a co‑sharer at all. The earlier judgment had definitively settled the question of pre‑emption rights between co‑sharers, irrespective of any familial relationship. Therefore, following that precedent, the Court held that the law of pre‑emption among co‑sharers does not infringe the fundamental right under Article 19(1)(f). The Court next addressed the second issue concerning the plaintiff’s title. It observed that this matter had never been raised before the lower courts and, being purely a factual question, could not be introduced for the first time at this stage. Consequently, the Court declined to consider the plaintiff’s title.

Before the Court, the parties raised several procedural and substantive issues. The Court first addressed a preliminary objection that had been presented for the first time at this stage of the appeal. The objection was dismissed, and the Court expressly stated that it was not permitted to be considered, citing earlier authorities (1917 I.L.R. 44 Cal. 47; A.I.R. 1962 S.C. 1476). The next issue advanced by counsel concerned the timing of the pre‑emption ceremonies. Counsel argued that the ceremonies were premature because the sale of the property was completed on 20 October 1949, whereas the ceremonies had been performed on 11 October 1949. The Court referred to its earlier decision in Ram Saran v. Domini Kuer, where a majority held that registration under the Registration Act becomes final only when the document to be registered has been copied into the official register in accordance with section 61 of that Act. Counsel further submitted that a review of the sale deed dated 10 October 1949 appeared to show that the deed was copied into the register only on 20 October 1949. The Court observed that determining the exact date on which a document was entered into the register is a factual question. This question had not been raised before the trial court or the first appellate court, and no issue on it had been framed. It was first raised before the High Court. The High Court judges noted that, had the appellants intended to rely on this point, they should have raised it at the earliest opportunity—in the trial court or the first appellate court—and should have produced evidence by requesting the register from the registration department to establish the actual copying date under section 61. Accordingly, the High Court refused to allow the appellants to raise the point for the first time in the second appeal. The Court agreed with that decision, emphasizing that allowing a new factual plea at this advanced stage would deprive the respondents of the chance to raise appropriate defences and to explain the various dates appearing on the documents. Consequently, the Court declined to permit the appellants to rely on that plea. Turning to the substantive matter, the appeal concerned the enforcement of a right of pre‑emption in respect of rent‑paying land on which a house stood. Counsel for the appellants contended that the right of pre‑emption does not arise on the sale of a leasehold interest in land and, therefore, cannot be exercised with respect to the super‑structure alone, relying on A.I.R. 1961 S.C. 1747. Counsel for the respondents, in contrast, argued that under Mohamedan law a right of pre‑emption exists in the case of an “akar” (a house or mansion) to enable a co‑sharer to enjoy peaceful possession, and that the absence of a pre‑emptive right in a leasehold interest in land does not diminish that right. The respondent’s counsel further asserted that any strict incidents of the Mohamedan law of pre‑emption should be considered, but that they do not negate the existence of the pre‑emptive right in the present circumstances.

The Court observed that, although Mohamedan law provides a rule of pre‑emption, it could not overlook the modern development of law that acknowledges leasehold interests in land as transferable and inheritable. Before addressing the specific issue before it, the Court found it useful to set out certain general principles that are pertinent to the enquiry.

The Court noted that it was not contested that Hindus residing in the Province of Bihar had adopted the Mohamedan law of pre‑emption as a local custom. This adoption occurred because, during the period of Muslim rule, the pre‑emption rule under Mohamedan law was applied as part of the common law of those territories that fell under Muslim domination. Consequently, the Court held that the proper source for determining the incidents of the right of pre‑emption is Mohamedan law, unless the parties can demonstrate that, by custom, the law has been altered in any specific case. Being a customary rule, the Court stressed that it is not permissible for a court to extend the custom beyond the boundaries within which it has historically been recognised, and that the notion of rationalising the custom is inappropriate when ascertaining its incidents.

The Court referred to the decision in Bishan Singh v. Khazan Singh (1) for guidance on the law of pre‑emption. In that case the Court had articulated several propositions that are relevant to the present matter. First, the right of pre‑emption is a right of sub‑sale, not a right of re‑purchase; the pre‑emptor must take the entire bargain and step into the shoes of the original vendee. Second, the right entitles the pre‑emptor to acquire the whole of the property that is being sold, not merely a share of it. Third, the right is a very weak one and may be defeated by any legitimate method, for example by the vendee allowing a claimant possessing a superior or equal right to be substituted in his place. The citation for this decision is (1) [1959] S.C.R. 8 78.

From these propositions the Court affirmed the settled position that the pre‑emptor must accept the entire bargain; he cannot partition the bargain and claim substitution only for a portion of it, whether on the ground that he does not need the whole or that his pre‑emptive right extends only to part of the property. Moreover, because the right is weak, the Court need not engage in sophisticated rationalisation to align the doctrine with contemporary property law trends. The Court should, in fact, be cautious and refrain from extending the doctrine beyond the incidents that are clearly recognised by Mohamedan law or by established custom.

Having set out this background, the Court turned to the questions that arise in the present case. It framed the enquiry under three headings: (i) the pre‑emptor, (ii) the vendor, and (iii) the property about which the right of pre‑emption is claimed. The Court then quoted a passage from Baillie’s “Digest of Moohummudan Law” (page 478), which states: “When it is said that akar (such as mansions, vine‑yards and other kinds of land) are proper objects …”.

Mahmood J. explained that the right of pre‑emption relates to a right of milk or ownership, stating that the objects of such a right are those lands that can be possessed by virtue of this ownership. In Gobind Dayal v. Inayatullah, the learned judge described pre‑emption as a right possessed by the owner of a particular immovable property, which enables that owner, for the purpose of quiet enjoyment, to step into the position of a buyer and acquire proprietary possession of another immovable property that is not his own, upon the same terms on which the latter property is being sold to a third party. The same judge, in Sakina Bibi v. Amiran, clarified that the pre‑emptor must have vested ownership in the tenement from which he seeks to exercise the pre‑emptive right; a mere expectancy of inheritance, a reversionary interest, or any contingent or lesser right does not satisfy the requirement of full ownership. Beaumont C.J., while considering Dashrathlal v. Bai Dhondubai, accepted that the custom of pre‑emption operates only between free‑hold owners, meaning that the neighboring lands to which the custom is claimed must be freehold and the land to be pre‑empted must also be freehold. The Supreme Court, in Shri Audh Bihari Singh v. Gajadhar Jaipuria, articulated that both the benefit and the burden of the pre‑emptive right run with the land, allowing enforcement by or against the current owner, even though the pre‑emptor’s right does not constitute an interest in the land itself. This requirement that the pre‑emptor be a full owner may be rooted in the historical fact that ancient Mohamedan law did not recognise leases, or in the intention of the rule to prevent an undesirable neighbour, a purpose that would be meaningless if the pre‑emptor were only a temporary occupant. Consequently, the Court held that the pre‑emptor must own the property in respect of which he claims the pre‑emptive right.

The subsequent issue concerned the extent of interest that the vendor must possess in the land sought to be pre‑empted, which is governed by the doctrine of reciprocity. For reciprocity to operate, both the land from which the custom is claimed and the land to be pre‑empted must be freeholds; otherwise the principle fails. To illustrate, if A holds full ownership of a parcel of land that gives him a pre‑emptive claim, but the co‑sharer vendor possesses only a leasehold interest in the parcel that A wishes to pre‑empt, the vendor cannot invoke the custom because he does not have full ownership. The lack of reciprocal full ownership would give an unfair advantage to one co‑sharer, a situation that Mohamedan law does not permit. This doctrine of reciprocity was succinctly restated by Mahmood J. in Gobind Dayal v. Inayatullah and later reaffirmed in Mt. Bibi Saleha v. Amiruddin, where it was held that a mukarraridar holding under a co‑sharer cannot claim pre‑emption against another co‑sharer, and, conversely, a co‑sharer cannot claim pre‑emption against a mukarraridar on the basis of reciprocity. A Full Bench of the Bombay High Court in Deshrathlal v. Bai Dhondubai approved this principle, and the Supreme Court, in Shri Audh Behari Singh v. Gajadhar Jaipuria, again summarised the legal position as reflecting this reciprocal requirement.

In the situation where a vendor had previously sold his land while only possessing a leasehold interest, that vendor could not claim a right of pre‑emption over the land because he did not hold full ownership. The lack of reciprocity in such circumstances gives an advantage to one co‑sharer, which is not permissible under Mohamedan law. This principle of reciprocity was succinctly expressed by Mahmood J. in Gobind Dayal v. Inavatullah(1). The same doctrine was reaffirmed in Mt. Bibi Saleha v. Amiruddin(2), where it was held that a mukarraridar holding under a co‑sharer could not assert pre‑emption against another co‑sharer, and, reciprocally, a co‑sharer could not claim pre‑emption against a mukarraridar because the right does not arise when the ownership interests are unequal. The Bombay High Court Full Bench, in Deshrathlal v. Bai Dhondubai(3), approved this principle, and this Court articulated the position in Shri Audh Behari Singh v. Gajadhar Jaipuria(4) by stating that both the benefit and the burden of the pre‑emptive right attach to the land itself and may be enforced by or against the current owner, although the pre‑emptor’s right does not constitute a proprietary interest in the land. The rule that a leasehold interest is not subject to the law of pre‑emption has been consistently settled, as seen in cases such as Baboo Ram[1885] I.L.R. 7 All. 775, Golam Singh v. Nursingh Sabey(1), Mohammad Jamil v. Khub Lal Raut(2), Sakina Bibi v. Amiran(3), Phul Mohammad Khan v. Qazi Kutubuddin(4), Moorooly Ram v. Baboo Hari Ram(5), Rameshwar Lal v. Ramdeo Jha(6) and Nathuni Ram v. Gopinath(7). Learned counsel for the respondents did not challenge this established position. Turning to the respondents’ principal contention, they argued that the right of pre‑emption under Mohamedan law applies to “akar,” which includes a building, asserting that the purpose of the right is to prevent an undesirable person from becoming a householder, and therefore it would be unrealistic to deny the right merely because the land beneath the house is a leasehold. They relied on a passage from Charles Hamilton’s The Hedaya, 2nd Ed., p. 558, which states: “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.” However, that passage must be understood on the premise that the pre‑emptive right exists in respect of the land underlying the house. Baillie’s Digest of Mohamedan Law clarifies the position, noting that a palm‑tree purchased without its roots and the ground on which it stands carries no pre‑emptive right, whereas purchase with roots and ground does. The same rule applies to buildings: those bought for removal lack the right, while those purchased with their foundations are subject to pre‑emption, and there is no pre‑emption where the required conditions are not met.

It was argued that because the house in the present dispute had been sold together with the land on which it stood, the doctrine of “Shaffa” should apply to the house. The argument, however, relied on an interpretation that presumed the right of pre‑emption to exist only in respect of the land supporting the house. The Court referred to Baillie’s “Digest of Moohummudan Law”, where the author, on pages 479‑480, explained that when a person purchases a palm‑tree for the purpose of cutting it down, or purchases it outright, no right of pre‑emption attaches to it. The author further observed that if the tree is bought together with its roots and the ground on which it grows, the right of pre‑emption does apply. The same principle was said to govern buildings: a building bought for removal, i.e., without its foundations, is treated as a movable and therefore escapes the right of pre‑emption, whereas a building purchased together with its foundations is subject to that right. The passage quoted the following citations: (1) [1876] 25 W.R. 43; (2) [1921] 5 Pat. L.J. 740; (3) [1888] I.L.R. 10 All. 472, 477; (4) A.I.R. 1937 Pat. 578; (5) [1867] 8 W.R. 106; (6) A.I.R. 1957 Pat. 695; (7) A.I.R. 1962 Pat. 226 (F.B.). From this exposition the Court understood that a building sold merely as a super‑structure, without its foundations, does not give rise to a pre‑emptive claim because it is effectively a sale of movable property. Only when a house is transferred together with its foundations—that is, with the land on which it stands—does the pre‑emptive right arise.

The Court observed that even if the house in the present case had been conveyed together with its foundations, the same principle must be applied because the right of pre‑emption could not be invoked where the interest involved is a leasehold rather than freehold land. In substance, the claim sought to rely on a right over a building that merely decorates the foundations, a right that the law does not permit. The Court then turned to Wilson’s “Anglo‑Muhammadan Law”, paragraph 370, which states that when a house is sold apart from the ground on which it stands with the intention of being demolished, the transaction is regarded as a sale of materials and no right of pre‑emption arises. Conversely, if a house is sold for occupation as a dwelling, a pre‑emptive claim may be made on the basis of vicinage by the owner of any adjoining land or house, and possibly by the owner of the site itself even if that owner holds no other land beyond that covered by the house. The Court noted that the words within the brackets, which concede a right to the site owner, highlight the essential distinction: the decisive factor is whether the house is sold as a habitable dwelling or merely as material. In the former situation, the pre‑emptive right may be asserted irrespective of who owns the land or whether a formal pre‑emptive right exists.

In the matter before the Court, it was observed that the sale of a house could be subject to a right of pre‑emption. The introductory word “perhaps” in the quoted passage indicated that the author himself was uncertain about the exact legal position. Moreover, the illustration concerned only a piece of land over which a pre‑emptive right could arise, namely where the owner of the land possessed a freehold interest. The judgment relied heavily on a decision of a Division Bench of the Allahabad High Court in Zahur v. Nur Ali(1). In that case a dwelling house was sold as a house intended for habitation, with the purchaser acquiring the same right of occupation that the vendor had enjoyed, but without acquiring ownership of the site. The Court held that the right of pre‑emption under Mohamedan law attached to such a house. The Court’s reasoning, however, was not thoroughly developed. The learned judges observed at page 100 that “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 judges distinguished the cited texts on the basis that those texts applied only to sales of the materials of a house or a house that could be removed from its site. While this judgment appeared to support the argument advanced by counsel for the respondents, the judges failed to consider the well‑settled principle that a pre‑emptive right cannot arise in respect of land over which the vendor does not have full ownership. Consequently, the decision was infirm because it overlooked that established principle.

The judgment also cited a decision of a Division Bench of the Patna High Court in Chariter Dusadh v. Bhagwati Pandey(2). The issue there was whether the pre‑emptor possessed milkiyat, or ownership, in the property on which he claimed a pre‑emptive right. The pre‑emptor was a birtdar, although he was described in the Record of Rights as a tenant for a specific purpose, and the Court held that he was a full owner. This finding did not, in fact, bolster the respondents’ position. A more directly applicable decision was a Full Bench of the Patna High Court in Nathuni Ram v. Gopinath(1). In that case a right of pre‑emption was asserted with respect to a house standing on lease‑hold land. After an extensive discussion, Justice Choudhary, speaking for the Full Bench, delivered the following observation at page 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.” The Court thereby affirmed that where the enjoyment of a house depends on a lease‑hold land that cannot legally be the subject of a pre‑emptive right, the right of pre‑emption must be denied.

In this case the Court observed that a pre‑emptive right cannot be exercised when the enjoyment of the property that is sold depends on another property over which the right cannot be exercised by law. Consequently, where a parcel of land is sold together with a house situated on it, the pre‑emptive right cannot be allowed in respect of the house alone, because the house’s existence depends on the land, which is a leasehold property. The Court further noted that the sale of a dwelling for occupation without the sale of its foundations and the land on which those foundations stand is inconceivable, except in the limited circumstance referred to in Hedaya where only an upper story of a house is sold. The Court agreed with this conclusion and, because the judgment had already examined earlier authorities, it did not repeat those references.

The Court summarized the law by stating that a pre‑emptive right is attached to the full ownership of property by co‑sharers and does not apply to property held under a subordinate tenure such as a lease. This right functions as both a benefit and a burden, operating as a right of substitution that must encompass the entire bargain; it is an all‑or‑nothing right. It does not matter whether the inability to take the whole arises from a voluntary act or from a legal limitation inherent in the nature of the property transferred. The doctrines of “entire bargain” and “reciprocity” can operate only when both co‑sharers are full owners of their respective lands. A house standing on free‑hold land is subject to a pre‑emptive right, but a house standing on lease‑hold land is not, because there is no pre‑emptive right in respect of land held under a subordinate tenure. Moreover, if the super‑structure is separated from the land it becomes movable property, and it is well settled that a pre‑emptive right cannot be enforced against movables. Accordingly, the Court held that the first respondent possessed no pre‑emptive right to the sale made in favour of the appellants.

As a result, the appeal was allowed. The orders of the Subordinate Judge’s Court and the High Court were set aside, and the decree of the trial Court was restored. The appellants were awarded costs throughout the proceedings. The judgment was delivered by Justice Raghubar Dayal, who affirmed that the law of pre‑emption among co‑sharers does not infringe the fundamental right under Article 19(1)(g). He reiterated that the pre‑emptor must be the owner of the property regarding which the right is claimed, the vendor must have a proprietary right in the property sold and sought to be pre‑empted, and the sale of a lease‑hold interest is not subject to the law of pre‑emption, nor is the sale of the super‑structure of a house pre‑emptible.

In this matter the Court observed that the sale of a lease‑hold interest in land does not fall within the operation of the law of pre‑emption and that the sale of the super‑structure of a house is likewise not subject to pre‑emptive rights. The Court further agreed that where a property is capable of being pre‑empted, the pre‑emptor must seek to acquire the whole of the property that is offered for sale. However, the Court declined to express a definitive view on whether, in certain situations, a pre‑emptor may be permitted to claim only a part of the property that is being sold. The Court noted that there are reported instances in which partial pre‑emption has been allowed. It referred to a discussion of exceptional cases found on page 778 of the fourth edition of Muslim Law as Administered in India & Pakistan by K P Saksena. The Court cited the decision in Zainab Bibi v. Umar Havat Khan, where the pre‑emptor was allowed to acquire the portion of the property that was pre‑emptible. Supporting that decision, a passage on page 457 stated that under Mohammedan law, when several properties are sold in portions and the pre‑emptor has a right over some of those portions, he may pre‑empt only those portions on payment of a proportionate price, a view that reflects consensus among the three Imams as recorded in the Fatawa Alamgiri and referred to in Omur Khan v. Mooras Khan (1865 N.W.P. H.C.R. 173, 174).

The Court also referred to its own earlier opinion in Bishan Singh v. Khazan Singh, where it held that the general law of pre‑emption does not give a claimant the right to a share of the property when there are rival claimants; rather, the right of pre‑emption is a right to acquire the entire property offered for sale, as affirmed in Mool Chand v. Ganga Jal (ILR 11 Lah. 258, 273). In that case the dispute involved two rival pre‑emptors. One pre‑emptor succeeded in obtaining a decree for the whole sale subject to depositing a specified amount within a stipulated period. Before he could make the deposit, the second rival pre‑emptor filed a separate suit for pre‑emption of the entire property and impleaded the first pre‑emptor in that proceeding. The Court found that the rights of both pre‑emptors were equal and that the entire property was clearly pre‑emptible. From these observations, the Court indicated that the question of any exception to the general rule that the pre‑emptor must claim the whole property would need to be considered at a later stage. Applying the foregoing principles to the present facts, the Court concluded that because the lease‑hold interest and the house’s super‑structure are not subject to pre‑emption, the plaintiff‑pre‑emptor cannot claim the sale of the property. Accordingly, the Court affirmed that the appeal should be allowed and that the decrees of the Subordinate Judge should be restored.

After examining the issues raised on appeal, the Court determined that the judgment delivered by the High Court could not be sustained and therefore had to be set aside in its entirety. The Court observed that the findings and conclusions reached by the trial Court were sound and consistent with the material facts and the applicable law, and that the intervening decision of the High Court had improperly disturbed those findings. Consequently, the decree originally pronounced by the trial Court was ordered to be restored exactly as it stood before the High Court’s interference, thereby reinstating the trial Court’s adjudication. In addition, the Court directed that the appellants, having succeeded in their challenge, should be awarded the costs of the proceedings for the whole course of the litigation. This cost award was to cover all expenses incurred from the commencement of the suit before the trial Court through the subsequent appellate proceedings, ensuring that the appellants would not bear any financial burden arising from the appeal. By making these orders, the Court formally allowed the appeal filed by the appellants, overturning the decision of the High Court and re‑establishing the position that had been determined by the trial Court. The final effect of the judgment was to grant relief to the appellants, restore the trial Court’s decree, and order a full costs award in their favour.