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P. B. GAJENDRAGADKAR, B. P. SINHA, J. L. KAPUR, K. N. WANCHOO, K. SUBBA RAO
Radhakishan Laxminarayan Toshniwal – Appellant
Versus
Shridhar Ramchandra Alshi – Respondent
The document indicates that the right of pre-emption is primarily a statutory right and has been extended beyond traditional or personal law concepts, including various modes of transfer such as sale, mortgage, relinquishment, and exchange (!) . It emphasizes that for the right to be exercised, a valid transfer must have occurred through proper legal formalities, such as a registered sale deed for immovable property of a certain value (!) (!) .
Furthermore, the conclusion underscores that if a transfer has not been validly completed through the proper legal channels, the right of pre-emption cannot arise or be enforced. The court also notes that the right of pre-emption is a weak right and is not favored, requiring strict adherence to statutory provisions for its exercise (!) (!) .
Based on this, it was held that the right of pre-emption is not available beyond the scope of the statutory law, which includes laws applicable to various modes of transfer, and is not recognized beyond the legal framework established by law. The concept that pre-emption rights are limited to certain legal contexts, such as those governed by specific statutes, supports the view that pre-emption rights are not available beyond the statutory and legal provisions, which may include laws beyond the scope of Muslim law.
Judgment
KAPUR, J. : This is an appeal by special leave against the judgment and decree of the High Court at Nagpur passed in Second Appeal No. 720 of 1945 confirming the decree of the District Judge. In the suit out of which this appeal has arisen the appellant was defendant No. 1 and the respondents were the plaintiff and defendant Nos.2 and 3 and the dispute relates to pre-emption on the ground of co-occupancy which falls under Chapter XIV of the Berar Land Revenue Code 1928, hereinafter called the Code.
2. On April 10, 1943, D. B. Ghaisas and his mother Ramabai entered into two contracts of sale with the appellant, one in regard to Survey Nos. 5, 14 and 16 for a sum of Rs. 10,000/ out of which Rs. 2,000/ was paid as earnest money and the other in regard to Survey No. 15/1 for Rs. 8,500/- out of which Rs. 500 was paid as earnest money. On April 16, 1943 the vendors executed a registered sale deed in regard to Survey Nos. 5, 14 and 16 and the balance of the price was paid before the Registrar. On April 22, 1943, the vendors executed a lease of Survey No. 15/1 for 14 years in favour of Kisanlal and Sitaram who were defendants No. 2 and 3 in the suit and are respondents Nos. 2 and 3
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