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1991 Supreme(J&K) 14
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
R.P. Sethi, J.
Kanta Devi - Appellant
Versus
Parkash Chopra & Anr. - Respondent
CIA No. 1/1977
Decided On : 08 March, 1991
Advocate For Appellant: T.S.Thakur
Advocate For Respondent: H.L. Bhagotra
The provisions of Section 18 of the Right of Prior Purchase Act are mandatory, but waiver of the right of prior purchase can be proved by oral testimony of witnesses.
Headnote:
RIGHT OF PRIOR PURCHASE - WAIVER - SECTION 18 OF THE RIGHT OF PRIOR PURCHASE ACT - INTERPRETATION - ESTOPPEL - SECTION 115 OF THE EVIDENCE ACT - APPLICABILITY - FACTUAL CIRCUMSTANCES - COURT'S ANALYSIS AND CONCLUSION.
Fact of the Case:
Plaintiff-appellant filed a suit for possession on the basis of right of prior purchase, alleging that she and defendant No. 2 jointly purchased a house, and defendant No. 2 later alienated his interest in the house to defendant No. 1. The trial court dismissed the suit, holding that the appellant had waived her right of prior purchase. The appellant challenged this decision on appeal.
Finding of the Court:
The High Court held that the provisions of Section 18 of the Right of Prior Purchase Act, which require a vendor to serve notice on persons having a right of pre-emption, are mandatory. However, the court also held that waiver of the right of prior purchase can be proved by oral testimony of witnesses, relying on a judgment of the Supreme Court. The court further held that the appellant had waived her right of prior purchase by her conduct and acquiescence, as she had been informed of the vendor's intention to sell the house and had refused to purchase it.
Issues: 1. Whether the appellant had waived her right of prior purchase? 2. Whether the appellant and defendant No. 2 were co-sharers of the suit property? 3. Whether the appellant had a right of prior purchase in respect of the suit house? 4. Whether Section 15 of the Right of Prior Purchase Act is ultra vires of the Constitution of India? 5. Whether a decree for possession in respect of the suit property could be passed against defendant No. 1, who was a tenant of the suit property?
Ratio Decidendi: The court held that the provisions of Section 18 of the Right of Prior Purchase Act are mandatory and that waiver of the right of prior purchase can be proved by oral testimony of witnesses. The court also held that the appellant had waived her right of prior purchase by her conduct and acquiescence, as she had been informed of the vendor's intention to sell the house and had refused to purchase it.
Final Decision: The appeal was dismissed.
2. It was alleged by the plaintiff-appellant that vide a sale-deed executed M/S Ram Krishen, Sham Kumar and Krishen Kumar sold a house bearing No: 288 situate in Gali Molhotrian, Jammu for consideration of Rs.19, 000 to the plaintiff and respondent No. 2 jointly. Defendant No. 2 by virtue of sale deed dated 26.08.1974 alienated his interest in the suit house in favour of defendant No. 1 for a consideration of Rs.16, 000. The plaintiff being a co-sharer in respect of the property in dispute claimed to be having a right of prior purchase. The defendant resisted the suit on various grounds as a consequence of which the following issues were framed by the Court:
1) Whether the plaintiff has waived her right of prior purchase in respect of the disputed house? ......O.P.D.
2) Whether the plaintiff and defendant No.2 were the co-sharers of the suit property after having purchased the same jointly? ......O PD
3) Whether the plaintiff has a right of prior purchase in respect of the suit house? O P D
4) Whether Sec. 15 of the right of Prior purchase Act is ultra vires of the Constitution of India? ......OPD
5) In case the right of prior purchase of the plaintiff is proved against the defendants, whether the decree for possession in respect of the suit property can be passed against the defendants, No 1 in view of the fact that the defendant No. l is the tenant of the suit property? ......O.P.D.
6) To what relief the plaintiff is entitled?......OPD
3. In order to prove her case the appellant examined Earn Saran, petition-writer, Dina Nath, Sunil Malhotra and her self as witnesses. Defendant No. l produced Jagan Nath, Amrit Lal Dewan Chand petition writer, Earn Lal, Chaman Lal Sain Bass Harcharan Dass Chopra, V.K. Chopra Advocate and Nijay Kunmr as her witnessess.
4. After perusing the evidence and referring to the provisions of law, the trial court held that the appellant had waived her right of pre-emption with the result that her suit was dismissed vide the judgment and decree impugned in this appeal
5. I have heard learned counsel for the parties and perused the record.
6. Learned counsel appearing for the appellant has submitted the right of prior purchase could not be proved to have been waived by oral testimony of witnesses in view of the specific mandatory provisions as contained in Sec. 18 of the Right of Prior purchase Act (for short, the Act hereafter). Section" 18 of the Act provides:
"18. Notice to persons having right of prior purchase. When any person proposes to sell any agricultural land or village immovable property or urban immovable property, or to foreclose the right to redeem any village immovable property, in respect of which any persons have a right of prior purchase, he may give notice to all such persons of the price at which he proposes to sell such land or property, or of the amount due in respect of the mortage, the case as may be.
Such notice shall be given through any Court within the local limits of whose jurisdiction such land or property is situate and shall be deemed sufficiently given if it is served in accordance with the provisions of Order of the cOde of Civil Procedure."
Reliance is placed upon a judgment passed by me in Civil 1st Appeal No. 23 of 1986 Smt. Amro Devi v. Prof. Rattan Lal and others decided on 9.6.1988, wherein I had come to the conclusion that the provisions of Sec. 18 of the Act were mandatory and in view of the judgment of the supreme court reported in AIR 1963 S.C.1077, the earlier judgments of this court reported in 1 JKLR 324, IIIJKLR 172 and V JKLR 175 stood repealed. It was held by me in that case:
"Waiver is an intentional relinquishment of a known right or advantage, benefit, claim or privilege which except for such waiver the party would have knowledge and means volunta
