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1929 Supreme(SC) 64
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD BLANESBURGH, LORD TOMLIN, LORD THANKERTON, SIR GEORGE LOWNDES, AND SIR BINOD MITTER.
RAJA PATESHWARI PARTAB NARAIN SINGH - Appellant
Versus
SITA RAM (DEFENDANTS) - Respondents
On Appeal from the chief Court of Oudh.
Decided On : July 5. 1929.
Solicitors for appellant: Barrow, Rogers & Nevill.
Solicitors for respondents: H. S. L. Polak; T. L. Wilson & Co.
A right of pre-emption is waived if the claimant, knowing the property is available for sale at a fixed price, expressly refuses to purchase it. Such conduct precludes the subsequent assertion of pre-emptive rights as it would be inequitable.
Headnote:(A) Oudh Laws Act, 1876 - Sections 6, 7, 9, 10, and 11 - Transfer of Property Act - Section 54 - Right of pre-emption - Waiver of right - Where a party, having knowledge that multiple blocks of land are available for sale at fixed prices, specifically elects to purchase only one block and expressly refuses to purchase the others, such conduct constitutes a waiver of the right of pre-emption. It is inequitable to allow a party to reassert a pre-emptive right after having clearly acquiesced in the sale of the property to third parties.
(B) Oudh Laws Act, 1876 - Section 7 - Village Community - The statutory presumption that a custom of pre-emption exists in "village communities" does not automatically apply to land held by a group of devisees merely by reason of their shared interest in the land; a village community must be shown to exist apart from the mere ownership of the land.
(C) Statutory Notice - Where a party's express refusal to purchase available plots and acquiescence in their sale to others induces a belief that statutory notice is unnecessary, the absence of such formal notice cannot be used to maintain a claim for pre-emption, particularly if the claim would otherwise be barred by limitation.
Facts of the case:
A large tract of land was divided into blocks and offered for sale at fixed prices. The appellant purchased one block via a registered sale deed. He subsequently brought suits to pre-empt other blocks purchased by the respondents, claiming he had not received the statutory notice of sale required under the law. Evidence established that the appellant had obtained a list of all available blocks and their prices, knew they were on the market, but specifically informed the agent that he wished to purchase only one block and no others.
Findings of Court:
The court found that the appellant had definite knowledge of the availability of the other blocks and had expressly declined to purchase them. This conduct amounted to a waiver of any right of pre-emption he might have otherwise possessed.
Issues: Whether the appellant was entitled to pre-empt the blocks in suit; whether the land constituted a "village community" to trigger the statutory presumption of pre-emption; and whether the appellant's conduct in refusing to purchase the other blocks amounted to a waiver of his pre-emptive rights.
Ratio Decidendi: A right of pre-emption is waived when the claimant, with full knowledge of the availability and price of the property, expressly declines to purchase it. Such conduct precludes the subsequent assertion of pre-emptive rights as it would be inequitable to allow the claimant to challenge sales they had previously acquiesced to. Additionally, the mere fact that land is held by multiple devisees does not satisfy the requirement of a "village community" for the purpose of presuming a custom of pre-emption.
Result: Appeals dismissed.
Legal Category Hierarchy
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property law
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pre-emption
- oudh laws act 1876
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transfer of property
- contracts for sale
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pre-emption
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equity
- waiver
Judgement
Consolidated Appeals (Nos. 29, 30, 31 of 1928) from three decrees of the Chief Court of Oudh (November 20, 1928) affirming two decrees and reversing one decree of the Subordinate Judge of Gonda.
A village in Oudh, called Cookenagar, was divided into blocks by its proprietors and the blocks offered for sale at fixed prices. The appellant acquired one block by a sale deed executed and registered on June 9, 1924. He brought three suits against the respondents, claiming that under the Oudh Laws Act, 1876, s. 9, he had the right to pre-empt other blocks which had been purchased by the respondents respectively ; he pleaded that he had not been given notice of the sales as required by s. 10 of the Act.
The facts appear from the judgment of the Judicial Committee.
The Subordinate Judge dismissed two of the suits on the ground that the sales to the defendants therein were made before June 9, 1924, the date when the sale to the plaintiff was completed and registered, and that consequently the plaintiff was not entitled to notice of them; he decreed the third suit, finding that the sale there was after that date.
Upon appeals to the High Court it was held that the suits could not be maintained, as there was no right of pre-emption in the village. The learned judges (Stuart C. J. and Mohammad Raza J.) were of opinion that no custom of pre-emption was proved to exist in the village, and that the presumption enacted in s. 7 of the Act being conditional upon there being a village community did not arise, since in their view there was no village community in Cookenagar, either in 1876 or in 1924.
1929. June 4, 6, 7. Dunne K.C. and Jopling for the appellant. By s. 7 of the Act a custom of pre-emption is to be presumed to exist in the village. The appellant had a right to pre-empt under s. 9 of the Act, both as a co-sharer in the mahal and as a member of the village community, and he was entitled to notice of the sales under s. 10. It is not material that there were agreements to sell before the registration of the sale to the appellant, as by S. 54 of the Transfer of Property Act a contract of sale creates no interest in the land. The expression " village community " in s. 7 is not used in any technical sense ; where there are a number of co-sharers there is a village community Rahim-ud-din
v. Rewal (( 1903) L. R. 30 I. A. 39.); Munnu Lal v. Muhammad Ismail . (( 1904) L. R. 31 I. A. 212.) It is not material that some or all of the co-sharers resided out of India.
De Gruyther K.C. and Parikh for the respondents in appeals Nos. 29 and 30; Dube for respondent in appeal No. 31. There was no proof of a custom of pre-emption in Cookenagar, and the village was not a " village community " so as to raise a presumption of the existence of the custom under s. 7 of the Act Drigbijai v. Court of Wards (( 1901) 5 Oudh Cases, 266.); Narindra Bahadur Singh v. Balkaran Singh (( 1904) 7 Oudh Cases, 275.); Ram Dayal v. Chaudhri Mohammad Abdul Basit (( 1908) 12 Oudh Cases, 1.). Rahim-ud-din v. Rewal (( 1903) L. R. 30 I. A. 39.) applied to pre-emption in the Punjab, where the tenures and the relevant legislation are different from those in Oudh. Even if a custom of pre-emption is to be presumed under s. 7 the presumption is rebutted, as in the circumstances no custom of pre-emption could have arisen. But even if the plaintiff had a right to pre-empt he waived that right, as he definitely declined to purchase more than the one block. [Reference was made to the cases in Oudh referred to in their Lordships judgment.]
Dunne K.C. in reply. By s. 6 the plaintiff had a right to acquire " in preference to all other persons," that includes persons who have by contract a right to call for a conveyance.
The evidence did not establish any waiver by the plaintiff of his rights.
July 5. The judgment of their Lordships was delivered by
SIR GEORGE LOWNDES. These three consolidated appeals raise a somewhat unusual question under the law of preemption in Oudh.
The fact
