IMPORTANT POINT
Right of pre-emption is attached to property and only on that footing can it be enforced against vendee.

JUDGMENT

Dr Dhananjaya Y Chandrachud, J

1. Leave granted.

2. This appeal arises from a judgment and order of the High Court of Judicature of Rajasthan at Jaipur in a second appeal under Section 100 of the Code of Civil Procedure 1908.

3. The issue in the present appeal is whether a right of pre-emption was available to Beni Prasad who is alleged to be a joint owner in possession of the disputed courtyard. This has arisen in the context of the Rajasthan Pre-emption Act 1966 [“the Act”]. Briefly stated, the facts which have given rise to the present appeal are thus: A suit [Civil Suit Case No 71 of 1993] for pre-emption was instituted by Beni Prasad in the Court of the Civil Judge, Senior Division, Badi, District Dholpur in Rajasthan. Beni Prasad died during the pendency of the proceedings and is represented by respondents 1 to 13. Beni Prasad and Kirorilal were brothers. Beni Prasad filed the suit for pre-emption, against Devicharan who was impleaded as the first defendant and Kirorilal who was impleaded as the second defendant. The appellants in the present appeal are the sons of Devicharan. A sale deed was executed on 6 January 1990 by Kirorilal in favour of Devicharan by which Kirorilal sold his house along with the disputed courtyard to Devicharan. The basis of the suit was that Beni Prasad and Kirorilal, as brothers were joint owners in possession of the disputed courtyard having a half share each. It was argued that the plaintiff in his capacity as the brother of the second defendant, had a right of pre-emption which would prevail against the first defendant, in regard to the purchase of the house and the courtyard from the second defendant. The suit was contested by the defendants who filed their written statements. The defence was that the original owners of the property Pyare Lal and Baboo Lal had sold the disputed house to Prabhu Lal, who was the father of the original plaintiff and the second defendant. In the written statement, a plea was taken that on 17 January 1956, a partition had been effected between the members of the family as a consequence of which, the second defendant was allotted the disputed house and the courtyard and the original plaintiff was allotted another property.

4. The Trial Court framed several issues of which specifically issues (iii), (iv) and (vi) have a bearing on the subject matter of the present appeal. Issues (iii), (iv) and (vi) read as follows:

“iii) Whether, the plaintiff has the right of pre-emption in the sale deed dated 6th of January, 1990.

iv) Whether, there is common entrance to the ancestral house of the defendant no.1 and house purchased by the defendant no.1 from the defendant no.2. If yes, then what is its effect on the suit.

vi) Whether, the defendant no.1 is also a sharer in the disputed courtyard and he was vested with the right of pre- emption/prior purchase right in respect of the disputed house.”

5. Before the Trial Court, the submission which was urged on behalf of the defendants was that the first defendant, Devicharan himself had a share in the disputed property and was vested with a right of pre-emption. In support of the claim of Devicharan to the use of the common amenity as a courtyard, reliance was placed on a written statement (Exhibit A2) filed on 15 February 1982 and 17 February 1982 by Beni Prasad in another suit instituted against him by his brother Kirorilal. In the course of his written statement, Beni Prasad stated that Devicharan was also the owner of the disputed courtyard. During the course of the cross-examination in the suit out of which these proceedings arise, PW 1, who deposed in evidence, was confronted with the above-mentioned written statement. The Trial Judge, in the course of the judgment, recorded that PW 1 had stated that whatever had been set out in the written statement filed by his father would have been correct. On the basis of the admission contained in the written statement in the suit of 1980, it was urged on behalf of the appellants t