Patna High Court
Dhanik Lal Mahto And Ors. vs Additional Member, Board Of Revenue And ... on 23 April, 1985
Equivalent citations: AIR1986PAT95, 1986(34)BLJR458, AIR 1986 PATNA 95, 1986 BLJR 458, 1985 BRLJ 227, 1985 BBCJ 597, (1986) BLJ 98
JUDGMENT S.S. Sandhawalia, C.J., 1. Whether the tenuous right of statutory pre-emption under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 would be defeated by a valid gift by the original transferee even before it matures by the registration of the document of transfer, is the significant question arising in this reference to the Division Bench. 2. The facts lie in a narrow compass. The land in dispute was jointly sold by Srimati Laxmi Devi and Srt Ramakant Jha respectively by the sale deed dt. 25th May, 1974 in favour of Mansukh Das, respondent 4. It is common ground that this sale deed was completed by the entry in ihc registration book on the 17th July, 1974. However, meanwhile after five days of the execution of the sale deed the said respondent executed a deed of gift in favour of his two sons -- Bhuvaneshwar Das alias Bhonu Das and Bathu Das -- on the 30th May, 1974. This gift deed was duly registered and thus completed on the 27th July, 1974. ll was after nearly six weeks therefrom that on the 9th Sept., 1974 the petitioners presented the application for pre-emption under Section 16(3) of the Act. It was their claim that the gift by the original transferee was not a genuine transaction and was only intended to defeat their right of pre-emption. The question of the genuineness of the gift deed was squarely put in issue before the Deputy Collector, Land Reforms. There as many as fourteen witnesses were examined apart from the documentary evidence adduced on the record. On a full appraisal thereof, it was held that the gift deed was a bona fide transaction and the property having already been conveyed to the transferee, the petitioners' claim for preemption stood nullified. Aggrieved thereby, the petitioners preferred an appeal and after consideration of the finding of the trial Court, it was affirmed to the effect that the transaction of gift was a genuine one and the appeal was rejected. The matter was then carried before the Board of Revenue in revision and the issue of validity of the gift deed was pointedly raised The learned Additional Member, Board of Revenue, in a considered order, concluded as under : "There is nothing before this Court on the basis of which this deed of gift could be considered illegal, invalid or fraudulent and once the deed of gift has been executed and disputed land had been transferred to O. Ps. 2 and 3, no claim of pre-emption Under Section 16(3) of the Act can lie against the original purchaser O. P.O.1." 3. Mr. Balabhadra Prasad Singh, learned counsel for the petitioners, in an able argument, first attempted the uphill task of challenging the concurrent findings of the three forums below about the genuineness of the gift deed. The contention raised was that the transaction was a sham and an eye-wash, and we were invited to construe the document and peruse the evidence to reverse the view taken by the three Courts. 4. The submission though . forcefully pressed is plainly untenable in the writ jurisdiction. It is neither desirable nor perhaps possible to construe evidence and go behind the concurrent findings arnved on a question of fact after appraisal of evidence by as many as three authorities below. As has already been noticed, the Deputy Collector Land Reforms, apart from documents brought on the record, exanyned a mass of evidence including the testimony of fourteen witnesses for arriving at the conclusion that he did. Those conclusions were assailed and reappraised by the appellate Court and duly affirmed. The learned Additional Member of the Board of Revenue also considered the issue and arrived at the.finding of affirmance quoted above. To my mind it is hardly possible to go behind the said finding without a fourth re-appraisal of the evidence and undoubtedly, that is a scope foreign to the writ jurisdiction. The first contention- therefore must fail. 5. In fairness to the learned counsel for the petitioners I must notice his reliance on Snook v. London & West Riding Investment, Ltd (1967) 1 All ER 518 in the observations of Lord Justice Diplock with regard to what constitutes a sham transaction. There can possibly be no quarrel with the larger enunciation therein; but, as already stands stated three forums adverted to this aspect and were categoric that the gift deed herein was genuine. The case is thus plainly distinguishable. Similarly, the reliance on Secy, of State v. Dadi Reddi Nagiah, AIR 1919 Mad 467 is not well placed. It was held therein that a nominal or a benami deed of sale executed by a person with intent to defeat or delay creditors is within tie mischief of Section 4t b) of the Provincial Insolvency Act This case again does not in any way advance the stance on behalf of the petitioners. Equally the general principles of law enunciated in Anismimc Ltd v. Foreign Compensation (1969) 2 AC 147 cannot in any way aid or advance the case of the writ petitioners herein. 6. Lastly the contention raised on behalf of the petitioners was that the right of preemption under Section 16(3) having once arisen cannot be defeated even by a valid subsequent gift prior to its maturity by the registration of the original sale deed It was pointed out that under the Act this right matures from the date of the registration of the document of transfer and the pre-emptor is entitled to bring his application within three months thereof. Counsel submitted that herein the petitioners came well within time, namely, less than two months from the date of the registration of the original sale deed. On these premises, the submission was that the statutory right having once matured cannot be out-flanked by the methodology of even a valid-transfer of the property prior to the filing of the application. 7. The contention aforesaid takes one to the very root of the nature of the right of preemption generally and in particular under Section 16(3) of the Act It is common ground before us that Section 16 (3) is only a very limited statutory recognition of the otherwise well-known customary right of pre-emption. It has been held in a long line of precedent having the stamp of approval of the Final Court that the right of pre-emption is indeed a piratical right which may well be defeated by all legitimate means. Now. the explanation to Sub-section (1) of Section 16 in terms excludes inheritance, bequest or gift from the ambit of transfer under the said section. Therefore, if a valid and genuine deed of gift is made, the same is obviously not pre-emptable under the statute. Consequently, a bona fide transaction of gift can legitimately affect and defeat a tenuous claim to preemption. It has been authoritatively so held in Bishan Singh v. Khazan Singh, AIR 1958 SC 838 in the terms following : "Courts have not looked upon this right with great favour, presumably, for the reason that it operates as a clog on the right of the owner to alienate his property. The vendor and the vendee are, therefore, permitted to avoid accrual of the right of pre-emption by all lawful.means. The vendee may defeat the right by selling the property to a rival pre-emptor with preferential or equal right" Within this jurisdiction, the matter has been equally well elaborated with regard to the statutory right of pre-emption under Section 16(3) in a Division Bench decision in Smt Sudama Devi v. Parmeshwar Narain Singh, 1973 Pat LJR 534 : (AIR 1973 Pat 199). Therein it has been observed as follows: "But the law of pre-emption engrafted in Section 16(3) of the Act to my mind, is of weaker nature than the customary law of preemption..... If under the customary law of pre- emption a preferential right to acquire land is not a right to, or a right in, that land, I fail to understand how under Section 16(3) a person who becomes entitled to file an application under the said provision of law acquires any kind of right to, or right in, the land transferred No order of pre-emption can be made against the original transferee if he has transferred the land to another person before the filing of the application for pre-emption." 8. Both on principle and precedent the answer to the question posed at the outset must be rendered in the affirmative and it is held that the tenuous right of statutory preemption under Section 16(3) of the Act can be defeated by a valid bona fide gift by the original transferee prior to the filing of the application for pre-emption. 9. Both the contentions raised on behalf of the writ petitioners having been rejected, the writ petition must fail and is hereby dismissed. There would, however, be no order as to cost. B.P. Jha, J.
10. I agree.