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

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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

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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

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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 tha