IMPORTANT POINTS
Inorder to enforce pre-emption right being an obligation attached to a contingent interest arising out of a contract/custom, there should be a suit for enforcement of contractual obligation or the customary right reduced into contractual obligation. A mere suit for mandatory injunction cannot be maintained for enforcing a pre-emption right.
• The pre-emption right claimed should find a place in the document of conveyance either by gift, partition, settlement or sale and it may be either based on customary right or practice prevailed. A right of pre emption can also be created by contract between the parties.

JUDGMENT :

What actually amounts to a 'right of pre-emption', what are the ingredients which would constitute 'a right of pre-emption', whether an unregistered agreement would constitute a pre-emption right over an immovable property and whether a pre-emption right can be enforced by way of a simple suit for mandatory injunction, are the questions came up for consideration in this appeal.

2. A suit for mandatory injunction for enforcing pre-emption right based on an unregistered agreement, Ext.A1, decreed by the trial court, but in appeal, it was reversed and the suit was dismissed, against which the plaintiff came up with this appeal.

3. Admittedly, the property originally belonged to the mother of first defendant having an extent of 80 3/4 cents. She sold the said property for a sale consideration of Rs.1,25,000/-to her son, the first defendant. It is thereafter the first defendant along with his mother executed Ext.A1 unregistered agreement in favour of her other son, the plaintiff herein, reserving pre-emption right over the property, but subsequently the first defendant sold a portion of the property, the plaint schedule having an extent of 10 cents, to the second defendant. Thereon, the plaintiff issued a lawyer notice and filed this suit for mandatory injunction directing the defendants 1 and 2 to execute and register a sale deed for the sale consideration of Rs.30,000/-.

4. A right of pre-emption was really unknown to Hindu law. Its origination is from the Mohammedan Law and applied to both Hindus and Muslims based on equity and good conscience. But it was not regulated by statutory law except in Punjab and Agra. In so far as Muslims are concerned, right of pre-emption forms part of their personal law, but among Hindus, the right of pre-emption mainly recognized as a customary right. No doubt, the right of pre-emption can also be created by a contract.

5. Pre-emption is a right of claiming or purchasing property before or in preference to others when it was put for sale. The basic concept of pre-emption right is to preserve and give protection to the property of family from being intruded by strangers claiming under any member based on any transfer of immovable property. Inorder to constitute a pre-emption right, it should be satisfied that the pre-emptor should have some relation with respect to the property as a member of family, to which the property belonged and it must find a place in the document under which the property was given to the owner. In other words, the pre-emption right claimed should find a place in the document of conveyance either by gift, partition, settlement or sale and it may be either based on customary right or practice prevailed. A right of pre emption can also be created by contract between the parties. In the former case, when it was incorporated either as custom or practice prevailed, there need not be any specific consideration for the pre-emption right created. But in the later case, when the pre-emption right was created by a separate agreement, it would take the character of contractual obligation, for which, necessarily, there should be lawful consideration. The pre-emption right being a partial restraint over the right of owner restricting its transfer and alienation, though not creates any immediate right, title or interest over the property, when the property either put for sale or put in sale, it would operate entitling the pre-emptor to get the property in his favour. Necessarily, the restraint should be understood with the entitlement of the pre- emptor to get the property transferred in his name and it will have the value of the property as in the case of a sale. The value should be computed in relation to the value of alienation as it is a restraint on alienation. There need not be any lawful consideration for creating a pre-emption right, if it is based on any custom or practice, provided that it should find a place in the document of title of the owner, but that does not mean th