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Mohammad Zaman Khan Vs. Bahadur Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty ;Civil
CourtAllahabad
Decided On
Reported inAIR1940All371
AppellantMohammad Zaman Khan
RespondentBahadur Singh and anr.
Excerpt:
- - if he succeeds in persuading the vendor or the vendee to transfer by way of sale the property to him, that transaction would be perfectly legal. under the provisions of that act he is perfectly free, for example, at a public auction held by the vendor, to appear and bid for the land which the vendor desires to sell. it was contended that the plaintiff's suit must fail because on the date of the sale there was no cause of action. 8. upon the whole matter we are satisfied that the right of a non-agriculturist to institute proceedings for the pre-emption of bundelkhand land is preserved by the provisions of the agra pre-emption act......otherwise completed.3. it will be observed that under this section certain persons are entitled to purchase bundelkhand land without any restriction. other persons, viz. non-agriculturists, must obtain the sanction of the collector before any purchase of bundelkhand land is to be effective. the section does not prohibit the purchase of bundelkhand land by a non-agriculturist. on the contrary, the section specifically provides that a purchase of bundelkhand land without the sanction of the collector may be subsequently validated by the sanction of the collector. the learned single judge who disposed of the second appeal held that the sanction given to the appellant to purchase the property in dispute and to bring a suit for pre-emption was valueless. in the course of his judgment he.....
Judgment:

Thom, C.J.

1. This is a plaintiff's appeal arising out of a suit for pre-emption. The suit was one for pre-emption of Bundelkhand land. It was defended by both the vendor and the vendee. The trial Court granted a decree for pre-emption. The learned Civil Judge in the lower Appellate Court however recalled the decree of the Munsif and dismissed the suit. His decision has been upheld by this Court in second appeal. The facts of the case are not in dispute. The plaintiff is a cosharer in the mahal in which the property in dispute is situated. The property is Bundelkhand land and the vendee is a stranger to the mahal. Apart from the special provisions in the Agra Pre-emption Act and the Bundelkhand Alienation of Land Act, the plaintiff is entitled according to local custom to pre-empt. His suit has been dismissed however upon the ground that his right to pre-empt is destroyed by the provisions of Section 7, Pre-emption Act. Section 7 is in the following terms:

Nothing in this Act shall confer a right of pre-emption on any person who is, under the Bundelkhand Alienation of Land Act, 1903, not entitled to purchase the property in dispute.

2. Now under Section 3, Bundelkhand Alienation of Land Act, the plaintiff being a non-agriculturist must obtain sanction of the Collector to purchase the land in dispute. The relevant portion of Section 3 is as follows:

3. (1) A person who desires to make a permanent alienation of his land shall be at liberty to make such alienation where (a) the alienor is not a member of an agricultural tribe; or (b) the alienee is either a member of the same agriculturist tribe as the alienor, or is a member of an agricultural tribe and a resident of the district in which the land is situated.

(2) Except in the cases provided for in Sub-section (1), a permanent alienation of land shall not take effect as such unless and until sanction is given thereto by the Collector of the district in which the land is situated:

Provided that sanction may be given after the act of alienation is otherwise completed.

3. It will be observed that under this Section certain persons are entitled to purchase Bundelkhand land without any restriction. Other persons, viz. non-agriculturists, must obtain the sanction of the Collector before any purchase of Bundelkhand land is to be effective. The Section does not prohibit the purchase of Bundelkhand land by a non-agriculturist. On the contrary, the Section specifically provides that a purchase of Bundelkhand land without the sanction of the Collector may be subsequently validated by the sanction of the Collector. The learned Single Judge who disposed of the second appeal held that the sanction given to the appellant to purchase the property in dispute and to bring a suit for pre-emption was valueless. In the course of his judgment he observes:

Once the vendor had sold the property to the vendee no sanction could be given by the Collector for the sale of the property by the vendor to the vendee. The sanction contemplated by Section 3, Bundelkhand Alienation of Land Act, must have reference to those cases and to those cases alone in which a cosharer has agreed to transfer his property to the person obtaining the sanction, and a Collector obviously cannot sanction the sale of property to a specified person when that property has already been sold by the vendor to another person. The sanction to purchase given to the plaintiff by the Collector in the present case was therefore meaningless and could not entitle the plaintiff to exercise the right of pre-emption.

4. We would observe, in the first instance, that the plaintiff is not a person who under the Bundelkhand Alienation of Land Act is not entitled to purchase the property in dispute. The plaintiff is entitled to purchase the property. If he succeeds in persuading the vendor or the vendee to transfer by way of sale the property to him, that transaction would be perfectly legal. Even if he had not obtained the sanction of the Collector to purchase, the transaction could be subsequently validated by the sanction of the Collector. The plaintiff therefore in our judgment is a person who is entitled to purchase Bundelkhand land. It is true that his right to purchase is subject to the condition that the purchase must have the sanction either antecedent or subsequent of the Collector. He nevertheless is not prohibited from purchasing. What then was the intention of the Legislature in enacting Section 7, Agra Pre-emption Act? It is true that this Section refers to persons who are not entitled to purchase under the Bundelkhand Alienation of Land Act. As the Bundelkhand Alienation of Land Act does not enact that certain persons are not to be entitled to purchase property, Section 7, Agra Pre-emption Act would appear to be somewhat ambiguous. The intention of the Legislature however in our judgment is to be discovered by a reference to the provisions of Section 16-A, Bundelkhand Alienation of Land Act. Section 16-A enjoins:

(1) Without the previous sanction of the Collector no person shall institute a suit or take any other proceeding in any Court to enforce a right of pre-emption in respect of any land unless

(a) the transferor is not a member of an agricultural tribe; or

(b) the person instituting the suit or taking the proceeding is either a member of the same agricultural tribe as the transferor or is a member of an agricultural tribe and a resident of the district in which the land is situated.

5. The intention of the Legislature so far as this latter Section is concerned was to preserve the right of pre-emption to those persons who are not members of an agricultural tribe but who nevertheless would have been entitled to purchase property with the sanction of the Collector under Section 3 of the Act. Under the provisions of the Bundelkhand Alienation of Land Act, therefore the position in regard to the purchase of Bundelkhand land is as follows: Members of an agricultural tribe may purchase and pre-empt Bundelkhand land without the sanction of the Collector. Non-agriculturists may purchase and pre-empt Bundelkhand land provided they have obtained the sanction of the Collector to purchase or the sanction of the Collector to bring a suit or proceeding to enforce a right of pre-emption. The intention therefore of the Legislature in enacting Section 7, Agra Pre-emption Act, was in our judgment to preserve the position so far as pre-emption is concerned under the Bundelkhand Alienation of Land Act. Had Section 7 not been enacted, it might have been contended that non-agriculturists in view of the other provisions of the Agra Pre-emption Act could have instituted a suit for pre-emption despite the provisions of Section 16-A, Bundelkhand Alienation of Land Act. Learned counsel for the respondent relied in support of the decree in his favour on the decision in Phool Chand v. Ramnath : AIR1928All186 . In that case a Bench of this Court held that Section 7, Pre-emption Act, had the effect of depriving a non-agriculturist of any right of pre-emption which he may have had under the provisions of the Bundelkhand Alienation of Land Act. In the course of his judgment in that case Sulaiman J. observed:

The learned Judge has erred in thinking that B. 16-A has by implication been repealed. That Section conferred no substantive right on a pre-emptor where he had none before; it merely placed the obstacle of sanction in the way of his suing, when such right existed. Even if his right of pre-emption is destroyed, it does not necessarily amount to a repeal of Section 16-A. I would not say that the Collector has no jurisdiction to grant such a sanction, but I would say that such a sanction, even if granted, is now futile.

6. With respect we are unable to agree with this statement of the law. Section 16-A, Bundelkhand Alienation of Land Act, recognizes a very valuable right in a non-agriculturist, namely the right, provided the sanction of the Collector is obtained, to institute a suit for pre-emption. If the intention of the Legislature had been to destroy that right, then, in our view, it would have done so in a more specific and in a less ambiguous way than by Section 7, Agra Pre-emption Act. The Legislature is not to be presumed to intend to deprive citizens of valuable rights where it has not done so specifically. If the Legislature had intended to deprive non-agriculturists of their right to pre-empt Bundelkhand land, nothing would have been easier than to have enacted simply that so far as Bundelkhand land was concerned non-agriculturists were to have no right to pre-empt. Furthermore, we are reluctant to accept an interpretation of a provision which would impose a duty upon the Collector which in the words of Sulaiman J. in the case referred to above would be 'futile.' We do not consider it necessary to pursue the question as to whether the right of pre-emption is something entirely different from the right of purchase. In our judgment, however, the right of pre-emption is something far wider than the right of purchase. If the Collector grants to a non-agriculturist permission to institute a suit for pre-emption, it must be taken that he has no objection to that person as a purchaser. By implication, therefore, he grants his sanction to purchase. The Collector would not grant sanction to institute a suit for pre-emption to a person to whom he would refuse sanction to purchase.

7. The real question for consideration in this appeal is, as to whether the plaintiff can be regarded as a person who is not entitled to purchase the property in dispute. As we have already observed, there is nothing in the Bundelkhand Alienation of Land Act which deprives him of a right to purchase. Under the provisions of that Act he is perfectly free, for example, at a public auction held by the vendor, to appear and bid for the land which the vendor desires to sell. He, in other words, is entitled to purchase. It is true that before his purchase can become effective as a purchase, he must obtain the sanction of the Collector to the transaction. The intention of the Legislature in Section 7, in other words, was to ensure that so far as Bundelkhand land is concerned, non-agriculturists should be permitted to pre-empt only if they had obtained the sanction of the Collector to institute a suit for pre-emption. It was contended that the plaintiff's suit must fail because on the date of the sale there was no cause of action. This argument, in our judgment, is unsound. The land which the plaintiff was according to local custom entitled to pre-empt had been sold; he was not prohibited from purchasing the land and he had obtained the Collector's permission to institute a suit for pre-emption although this was not necessarily separate sanction to purchase. In these circumstances he had a cause of action on the date of institution of the suit.

8. Upon the whole matter we are satisfied that the right of a non-agriculturist to institute proceedings for the pre-emption of Bundelkhand land is preserved by the provisions of the Agra Pre-emption Act. As a result the appeal is allowed. The orders of this Court and that of the lower Appellate Court are set aside and the case is remanded to the lower Appellate Court for disposal according to law. The plaintiff is entitled to his costs in appeal to this Court. The court-fee will be refunded.


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