Punjab-Haryana High Court
(O&M) Abhey Singh vs Prem Singh And Others on 24 June, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:020000
RSA No.515 of 1994 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.515 of 1994 (O&M)
Reserved on:19.04.2024
Date of Order:24.06.2024
Abhey Singh (since deceased) through LRs
.Appellant
Versus
Prem Singh and others ..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Amit Jain, Sr. Advocate with
Mr. Varun Parkash, Advocate
for the appellant.
Mr. Vijay Kumar Jindal, Sr. Advocate with
Mr. Akshay Jindal, Advocate
Mr. Pankaj Gautam, Advocate
Mr. Samar P.S.Ahluwalia, Advocate
for the respondents.
ANIL KSHETARPAL, J
1. BRIEF FACTS OF THE CASE
1.1 In this regular second appeal, defendant no.3 assails the
correctness of the concurrent findings of fact arrived at by the courts below
while decreeing the plaintiff's suit for possession by way of preemption.
1.2 In order to comprehend the issues involved in the present case,
relevant facts, in brief, are required to be noticed.
1.3 Sh. Mangtu Ram was a co-owner to the extent of 1/4th share (18
kanals and 4 marlas) in the joint land measuring 72 kanals and 02 marlas.
He sold the aforesaid land to defendant no.2 (Sh. Parmanand) for
Rs.60,000/- vide registered sale deed dated 08.12.1988. Defendant no.2 (Sh.
Parmanand) subsequently sold the same property in favour of defendant
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nos.3 and 4, namely, Abhey Singh and Virender Singh, for Rs.75,000/- vide
registered sale deed 23.02.1989. On 03.03.1989, Prem Singh, the plaintiff
(respondent no.1 herein) filed a suit for possession by way of pre-emption
in order to pre-empt the sale deed dated 08.12.1988. However, he amended
the plaint in order to implead defendant no.3 and 4, the subsequent
purchasers and pre-empt the sale deed dated 23.02.1989. The plaintiff being
a co-sharer in the joint khewat claims the rights of pre-emption. Defendant
no. 1 did not contest the case, whereas the defendant no.2 filed a written
statement asserting that as the sale deed was executed in the presence of the
plaintiff, consequently he is estopped. Defendant no.4 filed separate written
statement contesting the case. When the plaintiff appeared in evidence, he
admitted that he was present when the sale deed dated 08.12.1988, was
executed. He stated that in his presence an amount of Rs.40,000/- was paid
and received in the office of the Registrar and he was present in the
Registrar's office. DW1-Abhey Singh (defendant no.3) testified that the
plaintiff Prem Singh was instrumental in getting the deal of the sale of the
property finalized and he was present at the time when the sale deed was
executed. The learned counsel representing the plaintiff failed to challenge
the correctness of the aforesaid statement of fact while cross examining
Abhey Singh.
1.4 Both the courts below decreed the suit. On 09.03.1994, the
regular second appeal was admitted for regular hearing and now it has come
up for final disposal.
2. ARGUMENTS PUT FORTH BY THE LEARNED COUNSEL
REPRESENTING THE PARTIES:-
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2.1 Heard the learned counsel representing the parties at length and
with their able assistance perused the paper book and their written arguments
along with the requisitioned record.
2.2 A written note of his submissions by the appellant's counsel
reads as under:-
"1. The appellant took a specific plea in the written
statement that plaintiff had knowledge of the execution of the
sale deed as he was present at the time of the execution of
the sale deed. However the plaintiff failed to controvert the
said plea by filing any replication.
PW-1 Prem Singh in his cross examination has
admitted his presence at the tehsil at the time of execution of
sale deed and admitted the payment of sale consideration in
his presence. The very fact that time Prem Singh did not
assert his right to pre-empt would amount to abandonment of
the right to pre-emption.
His silence at the time of execution of sale deed and
his presence at place of execution would impliedly amount to
waiving of his right to pre-empt. Supreme Court in Jagad
Bandhu Chaterjee Vs Nilima Rani 1969(3)SCC445 held that
acquiescence in sale by any positive act amounts to
relinquishment of pre- emptive right and amounts to waiver.
No consideration or agreement as such is necessary to
constitute waiver.
The preemptor had full knowledge regarding sale to a
third party by Mangtu Ram and thus there was no need to
serve notice upon the pre-emptor. This view is supported by
Indira Bai Vs Nand Kishore AIR 1991 SC 1055 where it has
been laid down that failure to serve notice does not render
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sale by vendor in favour of vendee ultravires when the right
of pre-emption is lost by estoppel and acquiescence. Section
115 of Evidence Act reads as under: "When one person has,
by his declaration, act or omission, intentionally caused or
permitted another person to believe a thing to be true and to
act upon such belief, neither he nor his representative shall
be allowed, in any suit or proceeding between himself and
such person or his representative, to deny the truth of that
thing."
The right of pre-emption is not a right to the thing sold
but a right to the offer of a thing about to be sold, since it is
proved that the preemptor had participated in the transaction
and waived his right of pre-emption, he cannot be allowed to
claim that he was not issued any notice under section 19 of
the Act.
Law of Pre-emption has been characterised as feudal,
archaic, outmoded and a piratical right which can be
defeated by all legal means. (Bachan Singh through LRs Vs
Chuhar Singh @ Ajmer Singh 2022 (3) RCR (Civil) 584)
Since the pre-emptor intentionally remained silent at time of
execution of sale deed, he would be deemed to have waived
off his right of pre-emption."
2.3 Per contra, the learned counsel representing the respondent
while drawing the attention of the court to Section 19 and 20 of the Punjab
Preemption Act, 1913 (hereinafter referred to as 'the 1913 Act') submits that
a notice specifying the price at which the property is proposed to be sold is a
sine-qua-non for debarring the plaintiff for claiming superior right of
preemption. While elaborating, he submits that once a particular procedure
has been prescribed in the 1913 Act, the same is required to be followed in
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letter and spirit before the plaintiff is estopped from filing the suit.
3. DISCUSSION BY THIS COURT:-
3.1 This court has considered the submissions of the learned
counsel representing the parties.
3.2 Section 19 and 20 of the 1913 Act are extracted as under:-
"Section 19. Notice to pre-emptors.
- 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 or urban immovable property in
respect of which any persons have a right of pre-emption,
he may give notice to all such persons of the price at
which he is willing to sell such land or property or of the
amount due in respect of the mortgage as the case may
be.Such notice shall be given through any Court within
the local limits of whose jurisdiction such land or
property or any part thereof is situate, and shall be
deemed sufficiently given if it be stuck up on the chaupal
or other public place of the village, town or place in
which the land or property is situate.
Section 20. Notice by pre-emptor to vendor.
- The right of pre-emption of any person shall be
extinguished unless such person shall within the period of
three months from the date on which the notice under
Section 19 is duly given or within such further period, not
exceeding one year from such date, as the Court may
allow, present to the Court a notice for service on the
vendor or mortgagee of his intention to enforce his right
of pre-emption. Such notice shall state whether the pre-
emptor accepts the price or amount due on the footing of
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the mortgage as correct or not and if not, what sum he is
willing to pay.When the Court is satisfied that the said
notice has been duly served on the vendor or mortgagee,
the proceedings shall be filed."
3.3 On the other hand, the appellant's counsel has relied upon paras
3, 4 and 5 of the judgment passed by the Supreme Court in Indira Bai vs.
Nand Kishore, 1990 (4) SCC 668 which, read as under:-
3. Estoppel is a rule of equity flowing out of fairness
striking on behaviour deficient in good faith. It operates
as a check on spurious conduct by preventing the inducer
from taking advantage and assailing forfeiture already
accomplished. It is invoked and applied to aid the law in
administration of justice. But for it great many injustice
may have been perpetrated. Present case is a glaring
example of it. True no notice was given by the seller-but
the trial court and appellate court concurred that the pre-
emptor not only came to know of the sale immediately but
he assisted the purchaser-appellant in raising
construction which went on for five months. Having thus
persuaded, rather misled, the purchaser by his own
conduct that he acquiesced in his ownership he
somersaulted to grab the property with con- structions by
staking his own claim and attempting to unset- tle the
legal effect of his own conduct by taking recourse to law.
To curb and control such unwarranted conduct the courts
have extended the broad and paramount considerations
of equity, to transactions and assurances, express or im-
plied to avoid injustice.
4. Legal approach of the High Court, thus, that no
estoppel could arise unless notice under Section 8 of the
Rajasthan Pre-emption Act (In brevity 'the Act') was
given by the seller and pre-emptor should have had
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occasion to pay or tender price ignores the fallacy that
Estoppel need not be specifically provided as it can
always be used as a weapon of defence. In the Privy
Council decision, referred earlier, the court was
concerned with Oudh Laws Act (18 of 1876) which too
had an identical provision for giving notice by seller. No
notice was given but since pre-emptor knew that the
property was for sale and he had even obtained details of
lots he was precluded from basing his claim on pre-
emption.
5. Exception, to this universal rule or its non-
availability, is not due to absence of any provision in the
Act excluding its operation but welfare of society or
social and general well-being. Protection was,
consequently, sought not on the rationale adopted by the
High Court that in absence of notice under Section 8 of
the Act estoppel could not arise but under cover of public
policy. Reliance was placed on Shalimar Tar Products v.
H.C. Sharma, AIR 1988 SC 145, a decision on waiver,
and Equitable Life Assurance Society of the United States
v. Reed, 14 Appeal Cases 587, which laid down that there
could be no estoppel against statute. Equity, usually,
follows law. Therefore that which is statutori- ly illegal
and void cannot be enforced by resorting to the rule of
estoppel. Such extension of rule may be against public
policy. What then is the nature of right conferred
by Section 9 of the Act? In Bishen Singh v. Khazan
Singh, AIR 1958 SC 838 this Court while approving the
classic judgment of Mahmood, J. in Gobind Dayal v.
Inayatullah, ILR 7 All 775 (FB). 'that the right of pre-
emption was simply a right of substitution' observed
that, 'courts have not looked upon this right with great
favour, presumably, for the reason that it operated as a
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clog on the right of the owner to alienate his property.
In Radha Kishan v. Shridhar, AIR 1960 SC 1369 this
Court again while repelling the claim that the vendor
and vendee by accepting price and transferring pos-
session without registration of sale deed adopted
subterfuge to defeat the right of pre-emption observed
that, 'there were no equities in favour of a pre-emptor,
whose sole object is to disturb a valid transaction by
virtue of the rights created in him by statute. To defeat
the law of pre- emption by any legitimate means is not
fraud on the part of either the vendor or the vendee and
a person is entitled to steer clear of the law of pre-
emption by all lawful means'. Such being the nature of
right it is harsh to claim that its extinction by conduct
would amount to statutory illegality or would be
opposed to public policy. The distinction be- tween
validity and illegality or the transaction being void is
clear and well known. The former can be waived by
express or implied agreement or conduct. But not the
latter. The provision in the Act requiring a vendor to
serve the notice on persons having right of pre-emption
is condition of validity of transfer, and therefore a pre-
emptor could waive it. Failure to serve notice
as required under the Act does not render the sale made
by vendor in favour of vendee ultra vires. The test to
deter- mine the nature of interest, namely, private or
public is whether the right which is renunciated is the
right of party alone or of the public also in the sense
that the general welfare of the society is involved. If the
answer is latter then it may be difficult to put estoppel as
a defence. But if it is right of party alone then it is
capable of being abnegated either in writing or by
conduct. The Act does not provide that in case no notice
is given the transaction shall be void. The objective is to
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intimate the pre-emptor who may be interested in
getting himself substituted. The Act does not debar the
pre-emptor from giving up this right. Rather in case of
its non-exercise within two months, may be for the
financial reasons. the right stands extinguished. It does
not pass on to anyone. No social disturbance is caused.
It settles in purchaser. Giving up such right. expressly
or impliedly cannot therefore be said to involve any
interest of community or public welfare so as to be in
mischief of public policy."
3.4 In Indra's Bai case (supra), the Supreme Court has analyzed
and interpreted the similar right of pre-emption available under the
Rajasthan Preemption Act, 1966 (hereinafter referred to as 'the 1966 Act').
Section 8 and 9 of the aforesaid Act is extracted as under:-
"Section 8 - Notice to pre-emptors
(1) When any person proposes to sell, or to foreclose the
right to redeem, any immovable property, in respect of
which any persons have a right of pre-emption, he shall
give notice to all such persona as to the price at which he
is proposing so to sell or as to the amount due in respect
of the mortgage proposed to be foreclosed, as the case
may be.
(2) Such notice shall be given through the civil court,
within the local limits of whose jurisdiction the property
concerned is situated shall clearly describe such
property, shall state the name and other particulars of
the purchaser or the mortgagee and shall be served in the
manner prescribed for service of summons in civil suits.
Section 9 - Loss of right of pre-emption on transfer
Any person having a right of pre-emption in respect of
any immovable property proposed to besold shall lose
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such, right unless within two months from the date of the
service of such notice, he or his agent pays or tenders the
price specified in the notice given under section 8 to the
person so proposing to sell:"
3.5 On comparative analysis, it is evident that the language
employed in Section 8 of the 1966 Act is stricter than the words used in
Section 19 of the 1913 Act. When the vendor is required to give notice to all
such persons as to the price at which he is proposing to sell, the 1966 Act
uses the word 'shall", whereas, the expression used in Section 19 of the 1913
Act is "may". Though, the language employed in both the statutes is not
identical but intent and object is same. This court is of the considered
opinion that the presence of the plaintiff at the time when the sale deed was
executed is sufficient for the vendees to estop the plaintiff from getting a
decree.
3.6 With reference to the contention of the respondent's counsel, it
may be noticed that the purpose and object behind notice under Section 19
of the 1913 Act is to inform the person who has right of preemption about
the intended sale at a particular price. The Act does not provide that in
absence of notice, the sale of property shall be void ab-initio. When it is
clear that the purpose of notice is to inform the person having pre-emptory
rights and there is no provision in the Act that prohibits giving up or
surrendering the pre-emptory right, in that case the conduct of the pre-
emptor plays an important role. Once it is established that the pre-emptor
had sufficient information including the price and the intention of the vendor
to sell the property he was required to take steps forthwith. It is not the case
of the plaintiff that he made an offer but it was not accepted by the vendor.
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The Hon'ble Supreme Court in above noted judgment while interpreting a
similar right of pre-emption has in para 5 laid down that the Act does not
debar the pre-emptor from giving up this right. In that context, the Supreme
Court held that the pre-emptor could waive the right. Now 35 years have
elapsed from the date the sale deed was executed, hence the equity is also
not in favour of a plaintiff. If the appeal is dismissed, it would create chaos
for the purchaser who is in possession of the property for the last 35 years.
The Supreme Court in more than one judgments have laid down that the
right of pre-emption is a weak, outmoded and piratical. Reliance in this
regard can be placed on five Judges Benches in Atam Parkash vs. State of
Haryana, AIR 1986 Supreme Court 859: 1987 RRR 116 as well as in
Shyam Sunder and another vs. Ram Kumar and another, (2001) 8 SCC
24. In view of the aforesaid, discussion, this court expresses inability to
accept the submissions of the learned senior counsel representing the
respondents
3.7 In this case, the First Appellate Court has recorded a finding of
fact that the plaintiff was present at the time when the first sale deed i.e.
08.12.1988 was executed. However, the objection was overruled on the
ground that it would not amount to waiver of right of pre-emption. The
Supreme Court while interpreting a similar but not identical provision has
categorically held that once the preemptor has acquiesced then he is
estopped from claiming the right of pre-emption. It is a well settled legal
principle that if the correctness of the statement of a witness with regard to
the facts is required to be disputed, then during the cross-examination of the
witness, the correctness of the aforesaid statement of fact shall be
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challenged. In absence thereof, the statement of fact will be deemed to have
been admitted. In this case, while appearing as DW1, defendant no.3 has
stated that the plaintiff was instrumental in getting the deal of the sale of the
property finalized and he was present at the time of execution of the sale
deed. In his cross-examination, the correctness of the aforesaid statement
was not challenged. Thus, the First Appellate Court has erred in observing
that plaintiff has never acquiesced.
3.8 As far as submission of the learned senior counsel representing
the respondent (plaintiff) that the procedure as prescribed under Section 19
of the 1913 Act is mandatory, has no substance, in view of the ratio
decidendi laid down by the Supreme Court in Indra Bai's judgment
(supra) which has been followed in P.K.Rahim vs. P.K.Ravindran alias
Ravichandran, (2005) 13 SCC 176 and affirmed by three judge Bench in
Raghunath (D) by LRs vs. Radha Mohan (D) through LRs and others,
(2021) 1 SCC 501.
4. DECISION
4.1 Keeping in view the aforesaid facts and discussion, the
judgments passed by the courts below are set aside. Resultantly, the appeal
is allowed.
4.2 All the pending miscellaneous applications, if any, are also
disposed of.
24th June, 2024 (ANIL KSHETARPAL)
nt JUDGE
Whether speaking/reasoned :YES/NO
Whether reportable :YES/NO
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