The right of pre-emption can only be exercised once, and if the plaintiff waives the right after the 1966 Act becomes operational, the right is barred for subsequent transactions involving the same property.

JUDGMENT :

SANJAY KISHAN KAUL, J.

1. The singular question this Court had framed for consideration in this appeal was whether the limitation shall commence from the first sale deed after coming into force of the Rajasthan Pre-Emption Act, 1966 or from any other subsequent sale on the basis of Article 97 of the Limitation Act, 1963. This question arises in this proceeding in a situation where the original plaintiff sought to enforce such right after three sale transactions had taken place in the past involving the subject immovable property in the years 1945, 1946 and 1966. The last transaction was effected on 5th November that year, after the 1966 Act had become operational. The factum of the plaintiff’s entitlement otherwise claim right of pre-emption in terms of Section 6 of the 1966 Act is not in dispute in this proceeding. In the suit out of which this appeal arises, the plaintiff’s suit for pre-emption over a transaction effected on 21st January 1974 was resisted on the ground of being barred by limitation.

2. In order to determine the aforesaid question of law framed by this Court in terms of the order dated 05.01.2016, it is necessary to discuss the nature of the right of pre-emption. In this behalf, we had discussed the right of pre-emption in a recent judgment in Barasat Eye Hospital & Ors. v. Kaustabh Mondal, (2019) SCC Online SC 1351. The said judgment, authored by one of us (Sanjay Kishan Kaul, J.), in its initial paragraph itself discusses this aspect and it would suffice to quote the same.

“1. The right of pre-emption holds its origination to the advent of the Mohammedan rule, based on customs which came to be accepted in various courts largely located in the north of India. This law is stated to be largely absent in the south of India on account of the fact that it never formed a part of Hindu law in respect of property. However, this law came to be incorporated in various statutes, both, prior to the Constitution of India (for short ‘the Constitution’) coming into force, and even post that. ²[Bhau Ramvaah Singh, AIR 1962 SC 1476] The constitutional validity of such laws of pre-emption came to be debated before the Constitution Bench of this Court, in Bhau Ram, supra. There are different views expressed by the members of the Constitution Bench of five Judges, and also dependent on the various State legislations in this regard. Even though there were views expressed that this right of pre-emption is opposed to the principles of justice, equity and good conscience, it was felt that the reasonableness of these statutes has to be appreciated in the context of a society where there were certain privileged classes holding land and, thus, there may have been utility in allowing persons to prevent a stranger from acquiring property in an area which has been populated by a particular fraternity or class of people. This aspect was sought to be balanced with the constitutional scheme, prohibiting discrimination against citizens on the grounds of only religion, race, caste, sex, place of birth or any of them, under Article 15 of the Constitution, and the guarantees given to every citizen to acquire, hold and dispose of property, subject only to the test of reasonable restriction and the interest of general public.”

The judicial approach adopted towards this right of pre-emption was thereafter discussed in the said judgment in the following terms:

“10. In order to appreciate the aforesaid provisions relating to the right of pre-emption, it would be appropriate to refer to an extremely lucid judgment of this Court by Justice K. Subbarao (as he then was), setting forth the contours of the right of pre-emption in Bishan Singh v. Khazan Singh, AIR 1958 SC 838, in a four Judge Bench judgment. The Bench proceeded to discuss the view of different Courts on this right of preemption, as found in the following:

a. Plowden, J. in Dhani