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Shobhrajmal and ors. Vs. Smt. Kamla Devi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberCivil Ex. First Appeal No. 13 of 1976
Judge
Reported inAIR1977Raj194; 1977()WLN156
ActsRajasthan Pre-emption Act, 1966 - Sections 11; Transfer of Property Act, 1882 - Sections 111
AppellantShobhrajmal and ors.
RespondentSmt. Kamla Devi
Appellant Advocate M.B.L. Bhargava, Adv.
Respondent Advocate N.M. Kasliwal,
DispositionAppeal dismissed
Cases ReferredRam Kishan Das v. Zahira
Excerpt:
.....of property act - section 111--tenant purchases property--successful pre-emptor obtains a pre-emption decree--held, tenancy rights once extinguished cannot revive--pre-emptor can evict vendee tenant.;the tenancy rights in the demised property no longer remain in existences soon as the tenant purchases the entire demised property from his landlord under a valid sale deed. the tenancy rights of the applicants in the present case thus stood extinguished as soon as the sale in favour of the appellants was completed & which gave rise to the right of pre emption 10 the pre emptor. if at the date of the accrual of the pre emption right, the vendee appellants possessed no tenancy rights on account of extinction of their tenancy rights by merger under clause (d) of section 111 of the..........and a successful pre-emptor obtains a pre-emption decree in regard to that purchase, can the pre-emptor decree-holder evict the vendee tenant in execution of the decree for pre-emption4. it is contended by the learned counsel for the appellants that a pre-emptor when he secures a pre-emption decree, he merely steps into the shoes of the vendee. it is not a resale of the property. the result of a successful suit for pre-emption is that the name of the vendee is erased from the sale deed and that of the successful pre-emptor is inserted in its place. it is further contended that if instead of the tenant, the pre-emptor had purchased the property by private contract from the landlord, he could not in law have evicted the tenant in possession of the property. the learned counsel in these.....
Judgment:

S.N. Modi, J.

1. This civil execution first appeal is directed against an order of the Additional District Judge No. 1, Jaipur City dated 10-9-1976 dismissing certain objections raised by the judgment-debtor appellants in execution of a decree.

2. The dispute relates to A house which was admittedly owned by Gendi Lal, Roop Chand, Babu Lal, Padam Chand, Bhoj Chand and Kamal Chand. The owners of the house first let out the house to Tulsidas and his son Shobhrajmal on rent and subsequently sold the same to them for Rs. 17,000 vide registered sale deed dated 31st December, 1969, After about ten months from the date of the sale, the respondent Mst. Kamla Devi filed a suit against the purchasers and sellers claiming possession of the suit house on the ground of preferential right of pre-emption under the Rajas-than Pre-emption Act, 1966. During the pendency of the suit Tulsi Das died and his legal representatives, who are appellants before me, were impleaded. The suit was decreed and a decree for pre-emption was passed in favour of the plaintiff respondent Mst. Kamla Devi on payment of certain amount to the vendee appellants. It is not in dispute that the plaintiff-respondent deposited the amount as directed in the decree. The plaintiff-respondent then moved an execution petition to execute the decree and obtain actual vacant possession of the said house. The appellants contested the execution petition on the ground inter alia that since the suit house was in occupation of Tulsidas and Shobhraj Mal as tenants prior to its purchase by them, the decree-holder was not entitled to evict the appellants and obtain actual physical possession of the suit house. The learned Additional District Judge rejected this contention holding that the relationship oi landlord and tenant which once existed between Gendi Lal and others on the one hand and the tenants Tulsi Das and Shobhraj Mal on the other came to an end when the tenants purchased the suit house from their land-lords. Dissatisfied with the said order, the judgment-debtor appellants have preferred this appeal.

3. The important question that arises for consideration in this appeal is that if a tenant in possession of the property, purchases that property and a successful pre-emptor obtains a pre-emption decree in regard to that purchase, can the pre-emptor decree-holder evict the vendee tenant in execution of the decree for pre-emption

4. It is contended by the learned counsel for the appellants that a pre-emptor when he secures a pre-emption decree, he merely steps into the shoes of the vendee. It is not a resale of the property. The result of a successful suit for pre-emption is that the name of the vendee is erased from the sale deed and that of the successful pre-emptor is inserted in its place. It is further contended that if instead of the tenant, the pre-emptor had purchased the property by private contract from the landlord, he could not in law have evicted the tenant in possession of the property. The learned counsel in these circumstances contends that there is no reason why the appellants merely by reason of their purchase of the demised property lose their tenancy rights if the purchase does not survive on account of a pre-emption decree passed against them. The above submission of the learned counsel for the appellants are supported by a Single Bench decision of the Delhi High Court in Ram Kishan Das v. Zahira, (1968) 70 Pun LR (D) 11. With due respect, I am unable to agree with the view taken by the learned Judge in the above cited case.

5. Section 111 of the Transfer of Property Act in Clause (d) deals with merger. It states that a lease of immovable property determines in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right. Their Lordships of the Supreme Court in Shah Mathuradas Maganlal & Co.v. Nagappa Shankarappa Malaga, AIR 1976 SC 1565 observed:--

'For a merger to arise, it is necessary that a lesser estate and a higher estate should merge in one person at one and the same time and in the same right, and no interest in the property should remain outside. In the case of a lease the estate that is in the lessor is a reversion. In the case of a mortgage the estate that is outstanding is the equity of redemption of the mortgagor. Therefore, there cannot be a merger of lease and mortgage in respect of the same property since neither of them is a higher or lesser estate than the other.'

6. Their Lordships further added:--

'When a leasehold and a reversion coincide there is a merger of a lesser estate in the greater. The leasehold is the lesser estate, for it is carved out of the estate of the owner, which is the reversion. The lesser estate is merged in the greater. The lease determines and merges in the reversion. If the lessor purchases the lessee's interest, the lease is extinguished, as the same man cannot be at the same time both landlord and tenant.''

7. It is thus obvious that in the pre-sent case as soon as the appellants, who were the lessees, purchased the demised property their tenancy rights were extinguished, for they merged with their ownership rights. Once the tenancy rights are extinguished they must be deemed to have disappeared for all times to come and the extinguished tenancy rights cannot, in my opinion, revive subsequently at any time even if the sale which extinguished the tenancy rights is successfully pre-empted by a decree for preemption.

8. I agree with the learned counsel for the appellants that a pre-emptor on securing a pre-emption decree merely steps into the shoes of the vendee and the result of a successful suit for preemption is that the name of the vendee is erased from the sale deed and that of the successful pre-emptor is inserted in its place. I also agree that if, in the present case the pre-emptor had purchased the property from the landlords under a private contract the appellants who were in possession as tenants of the property could not have been evicted by the pre-emptor. But it cannot be forgotten that the right of pre-emption accrues and becomes enforceable only when there is a sale which is a valid and completed sale in all respects. It is further clear from Clause (d) of Section 111 of the Transfer of Property Act that the lease of immovable property stands determined as soon as the interests of the lessor and the lessee in whole of the property be-come vested in the same person in the same right. In other words, the tenancy rights in the demised property no longer remain in existence as soon as the ten-ant purchases the entire demised property from his landlord under a valid sale deed. The tenancy rights of the appellants in the present case thus stood extinguished as soon as the sale in favour of the appellants was completed and which gave rise to the right of pre-emption to the pre-emptor. If at the date of the accrual of the pre-emption right, the vendee appellants possessed no tenancy rights on account of extinction of their tenancy rights by merger under Clause (d) of the Transfer of Property Act, the subsequent substitution of the name of the pre-emptor in the sale deed, cannot revive the extinguished tenancy rights of the appellants. In this view of the matter, the judgment-debtor appellants must hand over vacant possession of the house in dispute to the respondent pre-emptor.

9. For the foregoing reasons this appeal fails and is dismissed with costs.


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