Important Point
Suit for pre-emption cannot be brought merely on an agreement to sell.
Well settled that the right of pre-emption is a weak right. Therefore the courts cannot go out of their way to help the pre-emptor.

Judgment

Tarun Chatterjee, J. —

1.This appeal is directed against the Judgment and decree dated 5th of November, 1998 passed by the High Court of Karnataka at Banglore in R.S.A. No. 831/1996, by which the second appeal filed by the respondents was allowed and Judgment and decree of the courts below were set aside and the suit was decreed with costs.

2.The moot question that was raised by the parties before the courts below as well as before the High Court was - whether the law of pre-emption based on vicinage is void as held by this Court in the case of Bhau Ram vs. B. Baijnath Singh,1 [1962 Supp.3 SCC 724] and Sant Ram & Ors. vs. Labh Singh & Ors.,2 [1964 (7) SCR 756]. However, while setting aside the Judgments of the courts below, the High Court in second appeal held that the law of pre-emption on the ground of vicinage could not be held to be void and unconstitutional in view of the amendment of the Constitution.

3.Mohd. Ismail Urf Badshah-Plaintiff No.1 (since deceased) and Mohammed Miyan Urf Baban-Plaintiff No.2 instituted a suit for permanent injunction against Smt. Hamedabegum (Defendant No. 1/Appellant No.3) wife of Mohd Yusuf Maniyar and against Kumar Gonsusab (Defendant No. 2/Appellant No.1) and Kumar Shafi Mohd (Defendant No. 3/Appellant No.2) restraining the appellants from executing a sale deed relating to the suit property on the ground of right of pre-emption, to purchase 6 acres 31 guntas being R.S.No.164/3B situated at Mishrikoti village of Kalghatagi taluk, Dharwad in the State of Karnataka (hereinafter referred to as the ‘suit property’) and for other incidental reliefs. Be it mentioned at this stage, that the original Plaintiff No.1, namely, Mohd. Ismail Urf Badshah died during the pendency of the proceeding and his heirs and legal representatives were brought on record. In this Judgment, the plaintiffs are described as respondents and the defendants are described as appellants.

4.The case that was made out by the respondents may be summarized as follows:-

The suit property was the ancestral property belonging to the family of the respondents, which was sub-divided among the co-sharers. Smt. Hamedabegum, Appellant No. 3 was born in the family of the respondents and she was given in marriage. The respondents were adjoining owners of the suit property and they were entitled to pre-empt the suit property on the ground of vicinage. The Appellant No.3 had entered into a mere agreement to sell the suit property to Appellant Nos. 1 and 2 by a registered agreement for sale executed on 12th of February, 1987. The respondents claimed pre-emption on the ground of vicinage under the Mohammedan Law and family customs in respect of the suit property. Since on 19th of February, 1987, the appellants attempted to mutate their names on the basis of the aforesaid registered agreement to sell, executed on 12th of February, 1987, the respondents, after coming to know the intention of the appellants to sell the suit property on the basis of the registered agreement to sell, expressed their intention to exercise right of pre-emption on the ground of vicinage. Since the Appellant No.3 had refused to sell the suit property to the respondents, they were constrained to file the suit for permanent injunction, restraining the Appellant No.3 from executing the sale deed in favour of Appellant Nos. 1 and 2 claiming pre-emption on the ground of vicinage.

5.After entering appearance, the Appellant Nos. 1 to 3 had filed a written statement, denying the material allegations made in the plaint. They, however, admitted that the respondents were the owners of the adjacent land of the suit property and the fact of entering into an agreement to sell by Hamedabegum, Appellant No.3 in favour of Appellant Nos. 1&2 was admitted. It was alleged in the written statement that since Appellant No.3 was the owner of the suit property and had every right to sell the same to the person she would have liked, the suit for permanent injunction against the appellants