Supreme Court of India
Bhoop Alleged Son Of Sheo vs Matadin Bhardwaj Son Of Lakmi Chand on 4 December, 1990
Equivalent citations: 1991 AIR 373, 1990 SCR SUPL. (3) 410, AIR 1991 SUPREME COURT 373, 1991 AIR SCW 1, (1990) 4 JT 594 (SC), 1991 (1) UJ (SC) 247, 1991 UJ(SC) 1 247, 1991 (2) SCC 128, 1991 (1) BLJR 603, 1991 (1) ALL CJ 652, 1990 (4) JT 594, (1991) 1 MAD LW 7, (1991) 1 LANDLR 1, (1991) REVDEC 34, (1991) 1 RRR 219, (1991) 1 LJR 203, (1991) 2 CIVLJ 71, (1991) 1 CURCC 403
PETITIONER:
BHOOP ALLEGED SON OF SHEO
Vs.
RESPONDENT:
MATADIN BHARDWAJ SON OF LAKMI CHAND
DATE OF JUDGMENT04/12/1990
BENCH:
AHMADI, A.M. (J)
BENCH:
AHMADI, A.M. (J)
SHETTY, K.J. (J)
CITATION:
1991 AIR 373 1990 SCR Supl. (3) 410
1991 SCC (2) 128 JT 1990 (4) 594
1990 SCALE (2)1204
ACT:
Code of Civil Procedure--Section 146 and order 20 Rule
14, Order 21 Rule 16--Preemption decree--Whether could be
transferred to entitled purchaser to execute the same.
HEADNOTE:
Sub-Judge, 1st Class, Mahendergarh, in a suit, granted a
preemption decree in respect of agricultural land in favour
of one Shanti Devi and against the appellant and directed
Shanti Devi to deposit the sale price by November 17, 1968.
The respondent Matadin obtained a Deed of Assignment in
respect of the said decree and thereby acquired the rights
of Shanti Devi therein. On the strength of the said Assign-
ment deed, he put the decree to execution by getting himself
substituted as a decree-holder on October 15, 1980. He
claimed actual possession of the land from the appellant.
The appellant contested the execution proceedings contending
that the pre-emption decree was not transferable and no
right passed to the respondent under the deed of assignment.
It was also contended that since Shanti Devi had failed to
make the deposit, the suit stood dismissed and Shanti Devi
had no subsisting right in the decree which she could pass
under the assignment deed. The Sub-Judge, 1st Class, Mahen-
dergarh held that since the amount was not deposited on or
before November 18, 1968, the suit stood dismissed and thus
Shanti Devi had no interest which she could transfer. He
accordingly dismissed the execution application. Respondent
Mata Din, being aggrieved by the said order filed a revision
application in the High Court. The High Court found that
Shanti Devi took timely steps to deposit the sale price but
due to administrative difficulties, she could deposit the
amount only on November 19, 1968. The High Court therefore
held that there was no delay on the part of the decree-
holder to deposit the amount and hence the amount must be
taken to have been deposited within the time allowed by the
decree and so the decreeholder was competent to assign it
and the assignee was entitled to execute the same. The
revision application was allowed and the execution was
directed to proceed. The appellant has filed this appeal
against the said order after obtaining special leave and the
main contention amongst others advanced on his behalf re-
lates to the transferability of the decree and the maintain-
ability of the execution proceedings.
411
Dismissing the appeal, this Court,
HELD: The right of pre-emption is generally conferred on
a cosharer in the property or on a person who claims some
right over the property e.g., a right of way, etc., or on
the ground of vicinage i.e. being an owner of the adjoining
property. This right may be rounded in statute or custom or
personal law by which the parties are governed. The sole
object of conferring this right on a co-sharer or owner of
an adjacent immovable property is to exclude strangers from
acquiring interest in an immovable property as a co-sharer
or to keep objectionable strangers away from the neighbour-
hood. This right is purely personal and cannot be trans-
ferred to a third party for the obvious reason that it would
defeat the very purpose of its conferment. [416G-H]
The parties in the instant case, clearly intended to
transfer Shanti Devi's interest in the pre-emptional land to
Matadin. This is, therefore, not a case of a transfer of a
mere decree with the property remaining vested in title in
the pre-emptor. [418A]
The document clearly shows that Matadin had to implead
himself in place of the decree-holder as a party to the
pending execution proceedings and then seek possession of
the pre-emptional property. Matadin was substituted in place
of the decree-holder after notice to the judgment-debtor. He
was therefore, entitled to execute the decree. [418D]
Matadin was entitled in law to execute the decree trans-
ferred to him and obtain possession of be land from the
judgment-debtor. [418E]
Mehr Khan v. Gulam Rasul, AIR 1922 Lahore 300; Negeshwar
v. Taluk Singh, AIR 1930 Oudh 195; Wajid Ali v. Salian,
[1909] ILR 31 An 623; Zila Singh v. Hazari, [1979] 3 SCR
222; Chandrup Singh v. Data Ram, AIR 1983 P & H 1; Sarju
Prasad v. Jamna Prasad, (unreported) S.A. from order No. 45
of 1983 decided on November 21, 1983 and Jugal Kishore Saraj
v. Raw Cotton Co. Ltd., [1955] SCR 1369, referred to.
JUDGMENT:
