Patna High Court - Orders
Raj Narayan Rai & Anr vs The State Of Bihar & Ors on 11 September, 2014
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.3081 of 2014
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1. Raj Narayan Rai S/O Gaya Rai
2. Kalawati Devi D/O Jhulan Rai And W/O Raj Narayan Rai Both Are
Resident Of Village- Pohiya, P.O- Bhaismara, Police Station- Garkha,
District- Saran ( Chapra)
.... .... Petitioner/s
Versus
1. The State Of Bihar Through The Commissioner, Saran Division, Chapra
2. The Additional Collector, Saran, Chapra
3. The Chairman, The Bihar Land Tribunal, Patna.
4. Ram Pujan Rai S/O Late Sobhnath Rai
5. Lal Babu Rai S/O Ram Pujan Rai 4 And 5 Are Resident Of Village-
Pohiya, P.O- Bhaismara, Police Station- Garkha, District- Saran ( Chapra)
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Umesh Kumar Mishra
For the State : Mr. Nirbhay Kr. Singh, G.P.26
For Respondents 4 & 5 : Mr. Brij KishorMishra
Mr. Sachida Nand Rai, Advocates.
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
5 11.9.2014Heard learned counsel for the petitioners and learned counsel for the State as well as respondent nos. 4 and 5.
2. In the present writ petition, the petitioners are challenging the order dated 31.7.2013 (Annexure-1) passed by the Chairman, the Bihar Land Tribunal, Patna (hereinafter referred to as „the Tribunal‟) in B.L.T. Case No.68 of 2013 by which she has rejected the application filed by petitioner no.1, namely, Raj Narayan Rai, and further for quashing the order dated 9.10.2012 (Annexure-2) passed by the Commissioner, Saran Division, Chapra in Land Ceiling (Pre-emption) Patna High Court CWJC No.3081 of 2014 (5) 2 Revision Case No.279 of 2007 by which he has quashed the order dated 8.5.2007 passed by the Additional Collector, Saran, Chapra in L.C. Appeal Case No.35 of 2006.
3. The land in dispute is with respect to Khata No.220, Plot No.431, area 5 Kathas situated in Village Pohiya, Police Station Garkha, District-Saran. One Suresh Prasad Yadav who was land holder executed a sale deed in favour of Raj Narayan Rai, petitioner no.1, on 24.9.2005. In the northern side of land Jag Narayan Rai full brother of Raj Narayan Rai has been mentioned, as has been claimed by the petitioners they constituted a joint family. Ram Pujan Rai, respondent no.4 and Lal Babu Rai, respondent no.5 are claiming themselves to be the boundary Raiyat in western side. Pre-emption application was filed by them on 20.12.2005.
4. From the record it appears that Raj Narayan Rai executed a deed of gift in favour of Kalawati Devi on 14.12.2005 and the same was registered on 23.12.2005 i.e. after filing of the pre-emption application vide Pre-emption Case No.29 of 2005-06 filed on 20.12.2005. The D.C.L.R. original authority decided the issue on pre-emption, passed the order in their favour vide order dated 10.7.2006 thereby declared Ram Pujan Rai, respondent no.4 and Lal Babu Rai, Patna High Court CWJC No.3081 of 2014 (5) 3 respondent no.5 are boundary Raiyats. Accordingly their pre- emption application was allowed.
5. Against the pre-emption order of D.C.L.R., an appeal was filed vide Land Ceiling Appeal Case No.35 of 2006 before Additional Collector, Saran, Chapra which was allowed in favour of the petitioners and thereby the order passed by the D.C.L.R. was set aside. Against that order, Ram Pujan Rai, respondent nos. 4 and Lal Babu Rai, respondent no.5 filed a revision application before the Divisional Commissioner, Saran Division, Chapra vide Land Ceiling (Pre-emption) Revision Case No.279 of 2007 which, vide order dated 9.10.2012 was allowed treating respondent nos. 4 and 5 being the boundary Raiyat and recorded a finding of jointness in between Raj Narayan Rai, petitioner no.1 and Jag Narayan Rai full brother standing in the northern side of the disputed plot was accepted.
6. The matter was brought before the Tribunal in B.L.T. Case No.68 of 2013 where the Tribunal has considered the plea that was taken by the petitioners that petitioner no.1, Raj Narayan Rai and Jag Narayan Rai are still in jointness and as such he is also a boundary Raiyat from the northern side of the disputed land. Another plea was taken that the deed of gift was Patna High Court CWJC No.3081 of 2014 (5) 4 executed Raj Narayan Rai, petitioner in favour of his wife petitioner no.2, which excludes the applicability of provision of Section 16(3) of the Bihar Land Reforms (Fixation of ceiling Area and Acquisition of Surplus Land Act, 1961 (hereinafter referred to as "Ceiling Act") but private respondents have taken plea that registered deed of gift is a sham and malafide piece of document created by petitioner no.1, Raj Narayan Rai, with a view to illegally defeating the right of pre-emption of private respondents. There the petitioner has also raised the issue, pre-emption is a weak right, in a situation where the gift has been excluded from the mischief of Section 16(3) of the Ceiling Act. The Tribunal has considered and has arrived to a conclusion that all the conditions for pre-emption application are fulfilled and there is no reason to reject the pre-emption application filed by the private respondent. The Tribunal has opined that purchaser had made illegal effort for transferring the vended land in favour of his wife petitioner no.2 by executing a deed of gift in between the period of execution and registration of sale deed. The attempt was made to frustrate the provision of Section 16(3) of the Ceiling Act which cannot be allowed to be approved and held that the deed of gift is sham transaction. The Tribunal is Patna High Court CWJC No.3081 of 2014 (5) 5 also of the view that the land was transferred by way of deed of gift itself shows that petitioner no.1 and his elder brother does not constitute a joint family substantiated from the transaction of land in favour of wife, itself shows that petitioner no.1 has acquired the land in individual capacity and merely because his name of his brother is standing in the northern side of the disputed plot does not cut much ice in his favour.
7. Learned counsel for the petitioner has raised the following questions: First he has raised that petitioner no.1 and Jag Narayan Rai are full brothers and as such he is to be treated at northern boundary of disputed plot and as such he has superior right than to respondents. In support of his submission he has relied on the judgment in the case of Ram Roop Yadav Vs. The State of Bihar and others, reported 1987 PLJR 455, where it has been held that if the purchaser himself become a boundary Raiyat his right to the land cannot be taken away by the other adjoining Raiyat of the plot as he has a better claim over the other adjoining Raiyat. So much so he has further submitted that the deed of gift has been excluded from the mischief of Section 16(3) of the Ceiling Act and as such after the transfer by petitioner no.1 in favour of petitioner no.2 the application filed under Section 16(3) of the Land Ceiling Act Patna High Court CWJC No.3081 of 2014 (5) 6 itself was not maintainable. He has relied on the following judgments: Dinanath Singh V. The State of Bihar & others, reported in 2001(3) P.L.J.R. 469, paragraph nos. 8 to 10, (ii) Punyadeo Sharma and others V. The Additional Member, Board of Revenue and others, reported in 2004(3) PLJR 838, paragraph no.20 and (iii) Shri Gokul Mahto Vs. The State of Bihar and others, reported in 1999(2) PLJR 73 SC.
8. Learned counsel for the respondent, in contra, has submitted that plea of the petitioners that Jag Narayan Rai and petitioner no.1, Raj Narayan Rai were in the state of jointness is not sustainable in view of the fact that the action of petitioner no.1 transferring the land through the deed of gift in favour of his wife itself shows that it was his personal property and as such he cannot transpose himself in the northern side of the boundary and thereby the claim made by the petitioners to have better claim then others is not sustainable. Another point that has been taken by the respondent that the application for pre-emption was filed on 20.12.2005, the land in question was transferred through deed of gift in favour of his wife, petitioner no.2 on 23.3.2005 is an act of malafide with a sole motive to defeat the right which has accrued as provided under Section 16(3) of the Ceiling Act. Though explanation under Section Patna High Court CWJC No.3081 of 2014 (5) 7 16(1) of the Ceiling Act has excluded the deed of gift from its mischief but not in a case where the transfer has been made with a malafide reason to defeat their right of pre-emption and which has been found by the two courts i.e. revisional court and the Tribunal holding that the transaction by deed of gift was affected with a sole oblique motive to defeat the right of respondent nos. 4 and 5 and as such there is no error in the order passed either by the Commissioner or by the tribunal.
9. Having considered the rival contentions of learned counsel for the parties this Court has to decide whether the petitioners can be treated to be in the northern side of the disputed land on account of the fact that his brother name is standing in the northern side and second it has to be decided that whether the right of pre-emption can be defeated through the execution of deed of gift as in the present case the deed of gift was executed on 14.12.2005 and after three days of filing of pre-emption application the same was registered in favour of his wife.
10. The issue of being boundary raiyat in the northern side is to be dwelled into, as he has been claimed by the petitioner no.1 and Jag Narayan Rai constitutes joint family, as name of Jag Narayan Rai in the northern boundary, he is also boundary raiyat which is belied from the fact of transferring of Patna High Court CWJC No.3081 of 2014 (5) 8 land to his wife (petitioner no.2) through gift. If they constitutes joint family then there would not have occasion to execute the deed of gift in favour of his wife. In this view of the matter, this stand falls to the ground.
11. For proper adjudication of the present case it will be relevant to quote Sections 16(1) and 16(3) of the Ceiling Act:
"16(1) Restriction on future acquisition by transfer, etc.- (1) No person shall, after the commencement of this Act, either by himself or through any other person, acquire or possess by transfer, exchange, lease, mortgage, agreement or settlement any land which together with the land, if any, already held by him exceeds in the aggregate the ceiling area. Explanation.-For the purpose of this Section "Transfer" does not include inheritance, bequest or gift. "16(3)(i) When any transfer of land is made after the commencement of the Act to any person other than a co-sharer or a raiyat of adjoining land, any co-sharer of the transferor or any raiyat holding land adjoining the land transferred, shall be entitled, within three months of the date of registration of the document, of transfer, to make an application before the Collector in the prescribed manner for the transfer of the land to him on the terms and conditions contained in the said deed:
Provided that no such application shall be entertained by the Collector unless the purchase money together with a sum equal to ten percent thereof is deposited in the prescribed manner within the aid period.
(ii) On such deposit being made the co-sharer of the raiyat shall be entitled to be put in possession of the land irrespective of the fact that the application under clause (i) is pending for decision:
Provided that where the application is rejected, the co- sharer or the raiyat, as the case may be, shall be evicted from the land and possession there of shall be restored to the transferee and the transferee shall be entitled to be paid a sum equal to ten percent of the purchase money out of the deposit made under clause (i).
(iii) If the application is allowed, the Collector shall by an order direct the transferee to convey the land in favour of Patna High Court CWJC No.3081 of 2014 (5) 9 the applicant by executing and registering a document of transfer within a period to be specified in the order and, if he neglects or refuses to comply with the direction, the procedure prescribed in Order 21, rule 34 of the Code of Civil Procedure, 1908 (V of 1908), shall be, so far as may be followed."
12. The explanation of Section 16 (i) of the Ceiling Act provides, the transfer does not include inheritance bequest or gift, taking the assistance of this explanation learned counsel for the petitioner has submitted that any gift made by a person to another will be outside the purview of provision of section 16(3) of the Ceiling Act, submitted, in the present case there is no dispute, the gift has been executed by petitioner no.1 in favour of his wife petitioner no.2.
Identical and other similar issue with regard to present exposition of the right for pre-emption has been dealt with on many occasions by this Court, where primary view has been taken that the pre-emption is a weak right and purchaser can defeat the right of pre-emptor by any legitimate means provided under law.
13. As some what similar issue relating to pre-emption was raised in the case of Ramchandra Yadav Vs. Anutha Yadav and others, reported in 1971 B.L.J.R. 994 where Domi Kamat and Fusan Kamat sold the land to Anuthi Yadav. One Ramchandra Yadav claiming to be the pre-emptor filed an Patna High Court CWJC No.3081 of 2014 (5) 10 application under Section 16(3) of the Ceiling Act as claiming to be adjoining Raiyat of the northern boundary of the land. Anuthi Yadav contested the application inter alia on the ground that he had transferred the land to Chhathi Yadav before filing of pre-emption application who was impleaded for the first time party to the writ petition. The pre-emption application was allowed by the two authorities and have held that Ram Chandra Yadav was adjacent raiyat and was entitled to the benefit of pre-emption application. Ultimately the matter arrived to this Court and the Court has considered the entitlement of pre-emptor of boundary raiyat. The Court has examined the three situations considering the applicability of the right of pre-emption framing examples such as if a purchaser of the land have transferred it to another person before the filing of the application under Section 16(3) of the Ceiling Act and if the sale was complete in all senses, not only by execution of the sale deed but by completion of the registration, before the filing of the application, surely the application filed against the original purchaser ignoring the subsequent purchase will not yield any result, in such situation no order to recover the property to the pre-emptor can be made. In a second situation the example was given that sale Patna High Court CWJC No.3081 of 2014 (5) 11 deed was executed and also registered after filing the application under Section 16(3) of the Ceiling Act then the second transfer may be hit by doctrine of lis pendency and the application filed against the original purchaser may not become defective by subsequent transfer but the third case it has been formulated in the manner that the purported execution of document was taken place before filing of pre-emption application but the registration of document took place later on in this situation the court has considered the matter on different angle, made an analysis, there the Court has considered that though the normal rule is that the date of registration of document will relate back to the date of execution in between the parties but for the third party, point of time at which date become effective is when it is registered. The Court on analysis has found that as the land was transferred to Chhati Yadav by Anuthi Yadav remanded back and directed to implead him as a party and decide the case of pre-emption on merit. It will be relevant to quote relevant portion of paragraph nos. 3 and 5 of the aforesaid judgment:
"3. `In our opinion, the correct view of law application to such a case could be this. If a purchaser of the land would have transferred it to another person before the filing of the application under Sections 16(3) of the Act and it the sale was complete in all senses, not only Patna High Court CWJC No.3081 of 2014 (5) 12 by execution of the sale deed but by completion of the registration, before the filing of the application, surely the application filed against the original purchaser ignoring the subsequent purchaser will be of no effect, and no order to recovey the property to the pre-emptor can be made in such a case. It may be also legitimate to take the view that if the sale deed is executed as also registered after the filing of the application under Section 16(3) of the Act then the second transfer may be hit by the doctrine of lis pendens and the application filed against the original purchaser may not become defective by the subsequent transfer. In this case, however, we are not concerned with such a situation. Here, the position is a difficult one. One on the face of the sale deed executed by Anuthi Yadav in favour of Chhathi Yadav, the document purports to have been executed on 3.4.67, a day prior to the filing of the application under Section 16(3) , but it was registered on 24.6.67. And, probably the registration was complete under Section 61 of the Indian Registration Act, 1908 on 20.9.67. Under Section 47 of the Indian Registration Act, 1908, on the registration of the document Chhathi became the owner of the if he was a real partner from the third April, 1967 as title related back to the date of execution if the date of execution was correct. Question in such a case is whether person claiming a right of pre- emption can proceed with his application filed on 4.4.67 without empleading Chhathi Yadav as party to that application. The learned Additional Member, Board of Revenue, does not seem to have applied his mind to this aspect of the matter. Mere purported execution of the document on 3.4.67 may not be sufficient to defeat the application under Section 16(3) of the Act. If the execution was on that date as it purported to be then the application against Anuthi Yadav under Section 16(3) of the Act will fall because on registration Chhathi will derive title in the land from the 3rd of April, 1967 before the filing of the application under Patna High Court CWJC No.3081 of 2014 (5) 13 Section 16(3) of the Act. If, on the other hand, it be found that the document was an ante-date- one as a matter of fact, it was not executed before the filing of the application then, it seems, by a subsequent transfer and, specially, the transfer made by an ante-date sale deed, the right of the petitioner under Section 16(3) cannot be defeated. Nor can it be defeated if the sale deed is farzi. But these facts have not been raised and investigated in the courts below. The position of law was not very clear in this regard.
5......as between the parties registered document operates from the time of its execution when the document is registered and not from the time of its registration, under section 47 of the Indian Registration Act, but as regard the third party it is effective from the date of registration. In support of this proposition he placed reliance upon a decision of the Jammu and Kashmir High Court in Nabir Ganai v. Mohd. Ismail Ganai and a decision of the Supreme Court in Ram Saran Lall v. Mst.
Domini Kuer. The former case of Nabir Ganai was in relation to the exercise of the right of pre- emption, and it is no doubt true that in such a situation, it was observed that as between the parties to the transaction or between the transfer and the transferee the registered document takes effect from the date of execution but as regard a third party the point of time at which the deed becomes effective is when it is registered. Such an observation seems to have been made on the principle laid down in several other decisions of the various High Courts, some of which were noticed in the case of Ram Saran decided by the supreme Court. A question before the supreme Court was: when were the formalities to be performed for the exercise of the right of pre- emption whether on the execution of the sale deed or on the completion of the registration when the sale deed or becomes complete? The majority decision was that the sale becomes complete by completion of the registration under Section 6 of the Registration Act, and therefore, Patna High Court CWJC No.3081 of 2014 (5) 14 ceremonies have to be performed after that date. It is to be noticed that such a principle of law is for a different purpose and in a different context. It seems to have been adopted and applied by the Jammu and Kashmir High Court is the case referred to above, but if we may say so with respect, not very appropriately. The sale under Section 54 of the Transfer of Property Act is not complete if it is in respect of a property of more than one hundred rupees unless the sale deed is registered. The third party therefore, is not obliged to treat the same complete before its registration and he cannot be asked to perform the ceremony for claiming the right of pre- emption on a back date, it was impossible to do so......"
14. It will be relevant to rely on the judgment of Smt. Priyambada Devi and another Vs. Additional Member, Board of Revenue, Bihar , Patna and others, reported in 1985 PLJR 662. In this case also Smt Priyambada Devi purchased the land and an application was filed by one Jagdish Prasad Sukla for pre-emption under Section 16(3) of the Ceiling Act claiming himself to be adjacent raiyat and an objection was raised by the petitioner Smt. Priyambada Devi that she had ceased to have any interest in the property in question as she has gifted the property to her daughter. She also claimed that the pre-emptor was not an adjacent raiyat. The application filed by the pre-emptor was dismissed by the D.C.L.R. declaring that not maintainable giving direction to Patna High Court CWJC No.3081 of 2014 (5) 15 file a fresh application. The appellate authority has set aside the order of D.C.L.R. and directed the donee to be added as party and accordingly on the remand the D.C.L.R. allowed the pre-emption application. The appellate authority and revisional authority rejected the appeal and revision. Ultimately the matter reached to this Court. In this Court the point was raised that the application under section 16(3) of the Ceiling Act was not maintainable as the deed of gift was executed before the application of pre-emption was filed though registered during the pendency of the proceeding under the Act. As there was no allegation that the gift in question was executed by the petitioner in favour of daughter was sham and farzy transaction as Section 16(3) of the Ceiling Act has no application and addition of donee much beyond the period of limitation the application of pre-emption should not have been allowed by two authorities. The Court was of the view that as the deed of gift was not challenged as sham and farzy transaction. Had the allegation found to be correct, then for all practical purposes the said deed of gift would be a document non est in the eye of law and the pre-emption application would in such a case proceed against the original purchaser. In absence of such plea, if the deed of gift has been executed and registered in Patna High Court CWJC No.3081 of 2014 (5) 16 conformity with law, would be a valid piece of document and for such a document the legislature has mandated exclusion of the applicability of Section 16(3) of the Ceiling Act. It will be apt to quote relevant portion of paragraph 7 of the aforesaid judgment:
"7.........In view of this exclusion under the Explanation aforesaid, a deed of gift is excluded from the purview of section 16(3) of the Act. If, however, such a deed of gift would have been challenged as a sham and farzi transaction and the authority under the Act would have found the allegation to be correct, then for all practical purposes the said deed of gift would be a document non est in the eye of law and the pre- emption application would in such a case proceed against the original purchaser. But here unfortunately for the pre-emptor he has not alleged the sham and farzi nature of the deed of gift. It has, therefore, to be taken as a fact that the said document if executed and registered in conformity with law would be a valid document and for such a document the legislature has mandated exclusion of the applicability of section 16(3) of the Act. This conclusion does not require support of any decision as the section itself is clear and explicit. In view of this exclusion it has to be held that the order of the Land Reforms Deputy Collector and the appellate as also the revisional orders are all illegal and liable to be set aside. Those authorities should have held that the deed of gift not having been challenged as a sham farzi document, the pre- emption application under Section 16(3) of the Act was not maintainable......"
15. For arriving to a right conclusion it will be relevant to rely on the judgment of Ram Roop Yadav (supra). In this case Patna High Court CWJC No.3081 of 2014 (5) 17 one Mostt. Bhawani Devi executed two sale deeds in respect to plot no.18 and plot no.22 which are adjacent to each other in favour of Ram Roop Yadav. Two pre-emption applications were filed by two individuals, claiming the transfer of the aforesaid two plots on the ground that they are adjoining raiyat to the lands transferred in favour of the petitioner, Ram Roop Yadav. The matter came to this Court for consideration. The issue was raised that the petitioner himself was adjoining raiyat with respect to plot nos. 18 and 22 as both plots were purchased which are adjoining to each other. There the plea was taken by the pre-emptor that the petitioner has purchased two plots by two sale deed with the purpose of defeating the application of pre-emption which was rejected and it has been held that right of pre-emption is a weak right which can be defeated by the purchaser by any legitimate means. It has further been held that the purchaser by purchasing an adjoining plot can himself become the holder of an adjoining plot in order to defeat the pre-emption application which was filed later. The Court has held that different considerations will arise where purchaser tries to become a holder of an adjoining plot by making purchase of the adjoining land after filing of the application under Section 16(3) of the Ceiling Act. The Court Patna High Court CWJC No.3081 of 2014 (5) 18 has accepted the plea of purchaser, holding that he himself became the holder of adjoining plots, in both the cases and he can resist the claim of reconveynace of either of the plots. The Court has relied on the Full Bench case of Sheo Kumar Dubey v. Sudama Devi, reported in AIR 1962 Patna 124 from where observation was quoted "it is thus evident that the entire land is clogged with an encumbrance in the shape of the right of pre-emption. It is not a personal right; the vendor possesses the property not absolutely, but subject to the right of pre-emption." But subsequent judgment of this Court in the case of R.C. Srivastava v. P.N. Singh, reported in 1970 B.L.J.R. 1101 and quoted from therein in the following manner.:
" In Sheo Kumar Dubey‟s case Kanahiya Singh, J had no occasion to consider the question as to how the right of pre-emption accrues or the question as to how such a right can be or is lost. His Lordship was merely describing the legal incidents of a perfected right of pre-emption was not dealing with a situation arising out of some events which may have the effect of nullifying that right before any steps is taken to enforce it."
It will be relevant to quote paragraph 5 of the aforesaid judgment:
"5. On behalf of the pre-emptor respondents it was urged that the petitioner had purchased two plots by two sale deeds with the purpose of defeating any application for pre-emption. It need not be pointed out Patna High Court CWJC No.3081 of 2014 (5) 19 that right of pre-emption is a very weak right which can be defeated by the purchaser by any legitimate means. Reference in this connection may be made to the well known case of the Supreme Court in the case of Bishan Singh v. Khazan Singh (AIR 1958 Supreme Court 838) where it was pointed out that the person claiming pre-emption has "to show not only that his right is as good as that of the vendee, but that is superior to that of the vendee......this superior right must subsist at the time the pre-emptor exercises his right". A Full Bench of this Court in the case of R. C. Srivastava v. P.N. Singh (1970 B.L.J.R. 1101) reiterated the same principle in connection with section 16(3) of the Act itself, pointing out that the right of pre-emption under Section 16(3) "is a very weak right, that it must subsist at the time when the pre-emptor seeks to exercise it and that it can be defeated if by that time the person against whom it is sought to be exercised has acquired a right or status which is equal to that of the pre-emptor."
16. Applicability of right of pre-emption as per Section 16(3) of the Act in a case of execution of gift came for consideration before Hon‟ble Supreme Court in the case of Shri Gokul Mahto (supra) where the Court has considered the scope of applicability of pre-emption right in a case of transfer of land by gift. The Court has said that as the explanation set out in section 16(1) of the Ceiling Act has clearly excluded the applicability of Section 16 in case of gift. The Court has arrived to a conclusion that the gifts are excluded from the purview of sub-section (3) of Section 16 of the Ceiling Act and rejected the claim of right of pre-emption. As there was no Patna High Court CWJC No.3081 of 2014 (5) 20 claim that the gift was benami or sham transaction in view of pleading in the application of pre-emption. It will be relevant to quote paragraph nos. 5, 7 and 8 of the aforesaid judgment:
"5. The Explanation below sub-clause 1 of Section 16, it will be noticed, clearly excludes from the purview of the entire section 16 transfers by way of heritance, bequest or gift. This is clear from the language used in the Explanation set out above which clearly uses the words "for the purposes of the Section". The said words would therefore mean that gifts are excluded even from the purview of all the Sub-section of Sections 16 including sub-clause (3) of Section 16. We, accordingly, reject the contention of the learned counsel for the appellant.
7. It is, therefore, obvious that the right of pre- emption, as claimed by the appellant, as a neighbour is not attracted to the case of the gift by the third respondent in favour of the fifth respondent. The facts of the case show that the gift made on 11.5.1982 by the third respondent was to his own sister who is fifth respondent and the gift was for the purpose of construction of a house.
8. Pleadings of the petition before the primary authority do not make any allegation that the gift was benami or a sham document. There is no doubt some discussion before the appellate authority as to whether the document is benami or sham, but in our opinion, it was not necessary for the said authorities to go into this question as there was no pleading before the primary authority."
17. An identical issue was raised in the case of Dinanath Singh V. The State of Bihar and others, reported in 2001(2) B.L.J. 560 and in that case also the purchaser has gifted the land in dispute to his sister. An application was filed claiming to be adjacent raiyat. The original court rejected the application Patna High Court CWJC No.3081 of 2014 (5) 21 for pre-emption but appellate court and revisional authority have differed from the view of the original authority. The matter came before the Court, the issue was raised that in view of explanation of Section 16(1) of the Ceiling Act the deed of gift does not come in the definition of transfer and as such for the purposes of application of right of pre-emption such transfer has been excluded. This Court has taken a view that as there was no pleading that the deed of gift was sham and farzi transaction in view of finding of fact recorded by the first court that the pre-emptor had no where alleged that deeds were benami or sham transaction. As there was no allegation of sham and farzi transaction, this Court found that the reason assigned by the appellate authority and revisional authority have misdirected themselves in holding that the application for pre-emption was maintainable. The Court has relied on the judgment of the Hon‟ble Supreme Court in the case of Gokul Mahto (supra) and held that present case is completely falls within the yardstick that has been framed in that case by Hon‟ble Supreme Court.
18. The issue of right of pre-emptor and maintainability of the pre-emption application came for consideration before this Court in the case of Punyadeo Sharma (supra). There the Court Patna High Court CWJC No.3081 of 2014 (5) 22 has considered the different facet of law of pre-emption. One of the issue has been decided that when the purchasers are themselves the adjoining raiyat the right of pre-emption would fail. The Court has held that the pre-emption is a weak right and can be defeated by a legitimate means and taking cognizance of large number of judgments and has taken the view that the courts have not looked upon the right of pre- emption with great favour 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 pre-emptor has a secondary right and a very weak right. Preference being the essence of the right, the purchaser has a superior right to that of the pre-emptor. It being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place. In order to defeat the claim of pre- emptor the purchaser is equally entitled to split the plot of land into more than one, to be purchased by more than one registered document. Once registration of the document of alienation takes place the purchaser/transferee can claim to have acquired right, title and interest from the date of Patna High Court CWJC No.3081 of 2014 (5) 23 execution of the document rather than the date of registration of the same and the Court has found the application of pre- emption and accepted the plea of purchaser thereby rejected the contention of pre-emption. It will be relevant to quote paragraph nos. 14, 15 and 16 of the aforesaid judgment:
"14. Law is well settled by a long line of cases of high authority that pre-emption is a weak right and can be defeated by any legitimate means. It appears that the first reported judgment on this point is the Full Bench judgment of the Allahabad High Court in Gobind Dayal vs. Inayetullah, and the first judgment of the Supreme Court on this point appears to be the oft-quoted judgment of the Supreme Court in the case of Bishan Singh vs. Khazan Singh (1959 SCR 878 at p.884=AIR 1958 SC 838 at P.841). Paragraphs 8 to 11 of the judgment in Bishan Singh Vs. Khazan Singh are set out hereinbelow for the facility of quick reference:-
"8. Mahmood J. in his classic judgment in Gobind Dayal v. Inayatullah, ILR 7 All 775 at p. 809 (FB) (B), explained the scope of the secondary right in the following terms:
"It (right of pre-emption) is simply a right of substitution, entitling the pre-emptor, by means of a legal incident to which sale itself was subject, to stand in the shoes of the vendee in respect of all the rights and obligations arising from the sale, under which he derived his title. It is, in effect, as if in a sale deed the vendee's name were rubbed out and preemptor's name inserted in its place."
9. The doctrine adumbrated by the learned Judge, namely, the secondary right of pre-emption is simply a right of substitution in place of the original vendee, has been accepted and followed by subsequent decisions.
10. The general law of pre-emption does not recognize any right to claim a share in the property sold when there are rival claimants. It is well- established that the right of pre-emption is a right to Patna High Court CWJC No.3081 of 2014 (5) 24 acquire the whole of the property sold in preference to other persons: See Moolchand v. Ganga Jal, ILR 11 Lah 258 at p. 273: (AIR 1930 Lah 356 at p. 357) (FB) (C).
11. The plaintiff is bound to show not only that his right is as good as that of the vendee but that it is superior to that of the vendee. Decided cases have recognised that this superior right must subsist at the time the pre-emptor exercises his right and that that right is lost if by that time another person with equal or superior right has been substituted in place of the original vendee. 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. To summarize: (1) 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. This right is called the primary or inherent right. (2) The preemptor has a secondary right or a remedial right to follow the thing sold. (3) It is a right of substitution but not of re-purchase i.e., the pre-emptor takes the entire bargain and steps into the shoes of the original vendee. (4) It is a right to acquire the whole of the property sold and not a share of the property sold. (5) Preference being the essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place. (6) The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place.
15. The Supreme Court has observed as follows in paragraphs 12 and 13 of its judgment reported in 1960 Sc 1368 (Radhakishan vs. Shridhar):-
"12. It was next contended that the appellant was guilty of fraud in that in order to defeat the right of the pre-emptors a deed of sale was not executed although as a matter of fact price had been paid, Patna High Court CWJC No.3081 of 2014 (5) 25 possession had passed and for all intents and purposes the appellant had become the owner of the property and that conduct such as this would defeat the very law of pre-emption. The right to pre-empt the sale is not exercisable till a pre-emtible transfer has been effected and the right of pre-emption is not one which is looked upon with great favour by the courts presumably for the reason that it is in derogation of the right of the owner to alienate his property. It is neither illegal nor fraudulent for parties to a transfer to avoid and defeat a claim for pre-emption by all legitimate means. In the Punjab where the right of pre-emption is also statutory the courts have not looked with disfavour at the attempts of the vendor and the vendee to avoid the accrual of right pre-emption by any lawful means and this view has been accepted by this court in Bishan Singh v. Khazan Singh, 1959 SCR 878 at p. 884: (AIR 1958 SC 838 at p. 841), where Subba Rao, J. observed :
"The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place".
13. In the present case the transaction of sale had not been completed until February 1, 1944 when the sale deed was executed. Anything done previous to it could not ordinarily be said to be a fraud to deprive a pre-emptor, from the exercise of his right of pre-emption. There are 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."
16. The Classis observations of Mahmood, J.
of the Allahabad High Court in (1885) ILR All 775 (Gobind Dayal vs. Inayatullah) and those of the Supreme Court in Bishan Singh vs. Khazan Singh, reported in AIR 1958 SC 838, are the leading authorities on the point, particularly the latter, because the same deals with statutory provisions Patna High Court CWJC No.3081 of 2014 (5) 26 relating to pre-emption, and repeatedly quoted with approval by Indian Courts. The Supreme Court in its judgment reported in AIR 1991 SC 1055 (Indira Bai vs. Nand Kishore) has observed as follows in paragraph 5 of the report:- effect in paragraph 5:-
" 5.......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, (1885) ILR 7 All 775 (FB), that the right of pre-emption was simply a right of substitution' observed that, 'Courts have not 1ooked upon this right with great favour, presumably, for the reason that it operated as a clog on the right of the owner to alienate his property. In Radha Kishan v. Shridhar, AIR 1960 SC 1368, this Court again while repelling the claim that the vendor and vendee by accepting price and transferring possession 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 between 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 determine 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 Patna High Court CWJC No.3081 of 2014 (5) 27 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 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."
19. The issue of right of pre-emptor came for consideration before Hon‟ble Supreme Court in the case of Kumar Gonsusab and others Vs. Mohammed Miyan Urf Baban and others, reported in (2008)10 SCC 153. There Hon‟ble Supreme Court has held that there is 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. It would be open to the pre-emptor, to defeat the law of pre-emption by any legitimate means, which 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. That apart, the right of pre-emption is a weak right and is not looked upon with favour by courts and therefore, the courts cannot go out of Patna High Court CWJC No.3081 of 2014 (5) 28 their way to help the pre-emptor.
20. Identical issue was raised before Hon‟ble Supreme court in the case of Chandrika Singh (Dead) through LRs. V. Arvind Kumar Singh (Dead) by LRS. & others, reported in 2006(3) PLJR (SC)195. In that case one Arvind Kumar Singh, who was owner of the lands executed a sale deed in favour of Shri Paras Sah on 10th of August, 1983 and Shri Paras Sah executed a sale deed in favour of one Smt. Ghurla Kuer on 12th of October, 1983. The sale deed executed by Arind Kumar Singh in favour of Shri Paras Sah on 10th of August, 1983 was registered on 14th of June, 1984. On 17th July, 1984, an application for pre-emption was filed before the Deputy Collector by one Chandrika Singh against Paras Sah under Section 16(3) of the Ceiling Act where Paras Sah took the plea that the land was sold to Smt. Ghurla Kuer vide sale deed dated 12th October, 1983 which was registered later on on 31st of August, 1984. The matter traveled up to Hon‟ble Supreme Court, there the Court has taken a view that the manner the transaction was done in favour of Ghurla Kuer and Paras Sah prior to registration of her sale deed cannot negate the right of the pre-emption to proceed against Paras Sah under Section 16(3) of the Ceiling Act. Other ground was Patna High Court CWJC No.3081 of 2014 (5) 29 taken that the application filed by pre-emptor was not maintainable which was rejected and the order was passed in favour of pre-emptor.
21. On the basis of the discussion it is clear from the discussion by Hon‟ble Supreme Court and this Court, that right of pre-emption is a weak right and that can be defeated by the purchaser by legitimate means. It has also been observed that the gift deed unless there is allegation of fraud, farzy or benami transaction, the same will not transfer for the purposes of Section 16(3) of the Ceiling Act and the gift which has been given by the purchaser in absence of allegation of fraud, farzy and benami, the right of pre-emption can be defeated by legitimate means that too in a case when the gift was executed before filing of pre-emption application and registration was done thereafter.
22. Let us examine the present case in two aspects whether Lal Babu Rai (respondent no.5) could have proved that he has a right of pre-emption over the land being adjoining raiyat as the brother of petitioner is in the northern side of disputed plot vis-à-vis it has to be also examined as to whether Raj Narain Rai could have legitimately defeated the right of pre-emption of Lal Babu Rai as provided under Section1 16(3) Patna High Court CWJC No.3081 of 2014 (5) 30 of the Ceiling Act by executing the deed of gift. It is a fact that Lal Babu rai (respondent no.5) is adjoining raiyat of the plot in dispute. He has filed an application of pre-emption within the time prescribed under that Act but in order to defeat his claim, plea has been taken that as petitioner no.1 as well as his brother, Jag Narayan Rai are in the state of jointness as such he himself is an adjoining raiyat from the northern side and has a better claim than respondent no.5. Second plea that has been taken is that after the purchase of land he has executed a deed of gift in favour of his wife Kalawati Devi, the deed of gift was executed prior to filing the pre-emption application but later on it was registered and as such it will be revert back to the date of execution and as such the transaction of gift to his wife does not come within the mischief of Section 16(3) of the Ceiling Act.
23. First it is to deal with the proposition that has been raised by the petitioners that as his elder brother is in northern boundary of the plot being a member of the joint family he also became the adjoining Raiyat. The plea that has bene taken by petitioner no.1 will not survive on two counts. First is that he has nowhere stated, the name of elder brother was standing along with him in the northern side nor he has disclosed the Patna High Court CWJC No.3081 of 2014 (5) 31 reason as to why his name was not standing along with his brother. Second is reason that if they constitute a joint family there was no occasion for petitioner 1 to purchase the land in his own name and later on transfer the land by way of gift to his wife. There no explanation has been offered by petitioner. Of course there is always presumption of jointness but the manner all transaction has taken place, it is very difficult to infer that the petitioner was in the state of jointness with Jag Narayan Rai with his elder brother. So this Court holds that the petitioner could not have discharged his onus about his claim of state of jointness. It is he, who claims has to prove, in absence of same, the plea of petitioner does not survive.
24. Another point is execution of deed of gift to his wife exclude the applicability of Section 16(3) of the Land Ceiling Act. The explanation to Section 16(1) of the Ceiling Act does not include inheritance or gift. The gift has been excluded from the provisions of section 16 of the Ceiling Act. But it has to be examined as to whether Lal Babu Rai could have taken the plea about the farzy or benami transaction by petitioner no.1 in favour of his wife and its prove.
25. One thing is also important even if he feels that it was a farzi and sham transaction, in that circumstances Kalawati Patna High Court CWJC No.3081 of 2014 (5) 32 Kuer would be a necessary party to the aforesaid case, as has been held by this Court in the case of Smt. Priyambada Devi (supra) where it has been held, second transferee is a necessary party.
26. On perusal of the pleading which was filed before the court below it appears that at the initial stage private respondents, namely, Ram Pujan Rai and Lal Babu Rai impleaded Raj Narayan Rai as a party respondent and claimed that right of pre-emption over the land purchased by him. But it appears Raj Narayan Rai filed written statement, there he took the plea that the land purchased by him has been gifted to his wife for the service rendered by her and disclosed that the date of execution and registration of the said gift deed. Though the order sheet is not before this Court but it appears from the written argument filed by the private respondents that after filing of the application Kalawati Devi, petitioner no.2, wife of Raj Narayan Rai was added as a opposite party and it also appears that a plea has been taken by the pre-emptor, about creation of manipulated gift deed where he has said that petition was filed on 20.12.2005 and deed of gift has been created on 23.12.2005 and it also appears that plea has been taken that the said deed of gift has been created to influence Patna High Court CWJC No.3081 of 2014 (5) 33 the out come of the pre-emption application and also claimed that Kalawati Devi wife of purchaser of land was/is not in her possession which has been explained elaborately to prove the fact of fabrication of deed of gift.
27. The Commissioner while examining the fact has arrived to a conclusion the deed of gift is sham transaction. Same finding has been affirmed by the tribunal and it also appears from the attending facts and circumstances that the reason that has been assigned in transferring the land to his wife in gift from the face of it shows that the same is an eye wash and is completely a sham transaction.
28. In this view of the matter, this Court concurs with the view of trial court, revisional court and the order passed by the B.L.T. as this Court does not find any error in the aforesaid orders. This Court does not find any merit in this writ petition, it is accordingly dismissed.
Vinay/- (Shivaji Pandey, J) U