NAMDEO CHINTAMAN MARATHE Vs. SHALIGRAM MOTIRAM BONDE
LAWS(BOM)-1962-8-42
HIGH COURT OF BOMBAY (FROM: NAGPUR)
Decided on August 09,1962

Namdeo Chintaman Marathe Appellant
VERSUS
Shaligram Motiram Bonde Respondents


Referred Judgements :-

RAMDEO V. GANGUBAI [REFERRED TO]
SAKHARAM V. DASHRATH [REFERRED TO]
BISHAN SINGH V. KHAZAN SINGH [REFERRED TO]
CHUNCHUN JHA VS. EBADAT ALI [REFERRED TO]
RADHAKISHAN LAXMINARAYAN TOSHNIWAL VS. SHRIDHAR RAMCHANDRA ALSHI [REFERRED TO]
LATAJI VS. KRISHNAJI [REFERRED TO]


JUDGEMENT

PATEL, J. - (1.)THESE are two appeals by the original owner who failed in all the Courts so far. The short facts are that the appellant Namdeo, who subsequently became defendant No. 2, is the original owner of the two fields which are the subject -matters of the two appeals. On July 17, 1951, by exh. P -2 he executed a sale -deed in respect of both these fields along with some other property in favour of defendant No. 1 who is Shri Akkalkot Swami Maharaj Sansthan, through its Wahiwatdar Vithalrao, and on the same day and at the same time the manager of the said Sansthan agreed to reconvey these properties if he returned the purchase price within two years from the date of that document. The plaintiffs in both the cases are the co -occupants of the sub -divisions of these fields and they instituted the respective suits in exercise of their right of pre -emption under Section 174 of the Berar Land Revenue Code, 1928.
(2.)DURING the pendency of these suits, on April 12, 1953, long before the period of two years was over, the property was reconveyed to Namdeo by the purchaser. After this, Namdeo was added as defendant No. 2 in both the suits and the suits were proceeded with. The trial Court decreed the plaintiffs' suits and these decrees were confirmed by the District Court and also by the High Court in second appeal. Badkas J., however, granted leave to defendant No. 2 under Clause 15 of the Letters Patent.
The only question that falls to be decided in these appeals is whether the agreement of reconveyance which was executed at the same time as the sale -deed exh. P -2 and registered immediately after the sale -deed, defeats the right of pre -emption of the plaintiffs, or, in other words, does the right of preemption of the plaintiffs defeat the agreement of reconveyance in favour of the appellant in respect of his own property? There have been a large number of eases on this question, but it is desirable, in our view, to approach this question first on fundamentals and then consider the decided cases.

(3.)BEFORE we proceed to consider the question proper, some of the principles of pre -emption law enunciated by the Supreme Court may be referred to. In Bishan Singh v. Khazan Singh : [1959]1SCR878 it was said (p. 841): .(1) The right of pre -emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called the primary or inherent right. (2) The pre -emptor has a secondary right or a remedial right to follow the thing sold. (3) It is a right of substitution but not of re -purchase i.e., the pre -emptor takes the entire bargain and steps into the shoes of the original vendee. (4) It is a right to acquire the whole of the property sold and not a share of the property sold. (5) Preference being the essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place. (6) The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place. While dealing with this question, their Lordships also observed that the Courts have not looked upon this right with great favour presumably for the reason that it operates as a clog on the right of the owner to alienate his property and that the vendor and the vendee are, therefore, permitted to avoid the exercise of the right of pre -emption by all lawful means. The same view was again emphasised in the later case of Radhakishan v. Shridhar : [1961]1SCR248 .


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.