Right of pre-emption is a very weak right and is only exercisable for the first time when the cause of such a right arises.

Hon’ble Supreme Court in the matter of Raghunath (D) By Lrs. Vs. Radha Mohan (D) Thr. Lrs & Ors on 13.10.2020 held that the right of pre-emption is a very weak right and is only exercisable for the first time when the cause of such a right arises.
Facts of the case:
The Rajasthan Pre-Emption Act, 1966 (hereinafter referred to as ‘the Act’) was brought into force on 1.2.1966. In view of the rights conferred under the Act, a suit was filed by the predecessor-in-interest of respondent No.1 seeking a decree of pre-emption against the predecessor-in-interest of the appellant herein and respondent Nos. 4 to 6 herein, on 10.1.1974. The property in question is situated in a building and is predicated on account of having a common portion in the suit property. According to the Plaint, Respondent 5 and 6 herein were owners and in possession of the part of the property which was sold to Respondent No. 4 vide sale deed on 10.1.1974 who in turn sold the said property to the appellant (original defendant No. 1 being the predecessor-in-interest) herein on 21.01.1974.
There is also an allegation that the two portions were part and parcel of the same house having main entrance, lavatory and staircase in common and that no notice, as provided for under Section 8 of the Act, had been served, which mandates a notice to pre-emptors. This suit was resisted on the ground that there were two separate lockable premises and as such no right of pre-emption accrued in favour of the original plaintiff.
The trial court decreed the suit in favour of original plaintiff on 30.06.1977, inter alia finding that the suit had been filed within the period of limitation of one year. In the appeal filed against this order, the written statement was amend to include the plea that there were even earlier sale deeds of 1945, 1946 and 1966 where the respondents 5 and 6 herein had purchased the property vide sale deed dated 5.11.1966. The earlier sale deeds not having been challenged, the right of pre-emption could not be exercised and was barred by time. The matter was remitted to trial court wherein the Court noted that though the earlier two sale deeds were executed prior to the Act coming into force, however, laws of pre-emption still existed in Ajmer and without challenging those sale deeds the suit would not be maintainable and would be barred by limitation. The 1st Appellate Court upheld this judgment.
The matter was thereafter taken to Rajasthan High Court wherein the High Court noticed that the only question before it was on the point of limitation as per the provisions of Article 97 of the Limitation Act. 1963 and opined that the one year limitation period is to run from the date of registration of the sale deed or the date when physical possession of the property was given; and the sale deed would be the sale deed in question. The High Court negated the plea that the earlier sale deeds would have to be assailed and concluded that each sale of such property gives a fresh cause of action. The suit was found to have been filed within time and the matter was remitted back on merits to be decided by the first appellate Court. Thereafter, the appellant filed Special Leave Petition against the said order of the High Court before the Hon’ble Apex Court.
The question raised for consideration in this appeal was whether the limitation shall commence from the first sale deed after coming into force of the Rajasthan Pre-Emption Act, 1966 or from any other subsequent sale on the basis of Article 97 of the Limitation Act, 1963.
Rival Contention of the Parties-
Ld. Counsel for the Appellant’s first argument was based on the policy behind the right of pre-emption, i.e. that no stranger should be allowed to thrust himself upon the co-sharer in a property against their will and to prevent apprehended inconvenience to the co-sharer. In that context, it was urged that the admitted position was that the predecessor-in-interest of the appellant herein was a distant relative of the predecessor-in-interest of respondent No.1 herein and this fact had been admitted by the original plaintiff. It was also contended that if a plaintiff waived his right of pre-emption by conduct, no such right is available on a subsequent sale of the same property and the plaintiff is estopped from claiming any right of pre-emption of subsequent sale.
This contention was reverted by the respondent arguing that the limitation to enforce a right of pre-emption under the Act is governed by Article 97 of the Limitation Act, 1963 read with Section 21 of theAct. Thus, each sale deed is a separate cause of action. On a reading of Section 8 of the said Act, it was contended that the seller is required to inform all persons as to the price he is proposing to sell at and thus the language of the provision is clear that it applies to all such incidents of sale. Thus, it was pleaded that it cannot be said that if such a right is not exercised, it would allow foreclosure for any subsequent sale, since there is no provision in the said Act, prohibiting the right of pre-emption if the right is not exercised.
Observations of the Court-
The Hon’ble Curt referring to the judgment pronounced in Barasat Eye Hospital & Ors. v. Kaustabh Mondal: 1 (2019) SCC Online SC 1351, observed that, “The historical perspective of the right of pre-emption shows that it owes its originination to the advent of the Mohammedan rule, based on customs, which came to be accepted in various courts largely located in the north of India. The pre-emptor has been held by the judicial pronouncements to have two rights. Firstly, the inherent or primary right, which is the right to the offer of a thing about to be sold and the secondary or remedial right to follow the thing sold. It is a secondary right, which is simply a right of substitution in place of the original vendee. The pre-emptor is bound to show that he not only has a right as good as that of the vendee, but it is superior to that of the vendee; And that too at the time when the pre-emptor exercises his right. In our view, it is relevant to note this observation and we once again emphasise that the right is a “very weak right” and is, thus, capable of being defeated by all legitimate methods including the claim of superior or equal right.”
The consistent view taken by the Rajasthan High Court, as reflected in Ghanshyam vs. Chand Bihari & Ors., (2008) 2 RLW (Rev) 1011; Rukmani Devi (Smt.) vs. Prabhu Narayan & Ors., (2007) 4 RLW 2882 and Prahlad Kumar vs. Kishan Chand & Ors, 2009 (3) RLW 2441 has been that the right of substitution is capable of being invoked only at the first instance and does not continue to permeate for an indefinite period of time for each sale transaction.
The Court also referred to Sec 3, 6 and 21 of Rajasthan Pre-Emption Act, 1966 and Article 97 of the First Schedule of the Limitation Act, 1963 and noted that the substantial question herein has to be, thus, “analysed in the context of a conjoint reading of Section 21 of the said Act and Article 97 of the First Schedule to the Limitation Act, 1963. The stipulation in Section 21 is that the right of pre-emption has to be exercised, in case of a sale, within one year from the date of sale and if the sale is not by a registered deed, on the purchaser taking the physical possession of any part of the property sold. Since the period has to be as per Article 97, the wordings of the Article show that it is one year from the date when the sale is registered (in case such registration takes place as is in the present case). It is this expression, which is sought to be construed by the respondent No. 1 as well as by the High Court to mean that it is a recurring right for every sale however Sec 9 of the said Act shows that the loss is only occasioned, when, within two months from the date of service of the notice, the price is not tendered. However, that is the loss of the right, vis-à-vis the transaction in question. The moot point is whether such a right of pre-emption is a recurring right, i.e. every time the property is sold, the right would rearise, in a case the pre-empting plaintiff himself has chosen not to exercise such right over the subject immovable property when sold to another purchaser earlier.”
Agreeing with the consistent view of the Rajasthan High Court, the Apex Court held that “it would not be appropriate or permissible to adopt legal reasoning making such a weak right, some kind of a right in perpetuity arising to a plaintiff every time there is a subsequent transaction or sale once the plaintiff has waived his right or pre-emption over the subject immovable property. The loss of right mandated under Section 9 of the Act is absolute. A plain reading of the said provision does not reveal that such right can re-arise to the person who waives his right of pre-emption in an earlier transaction. To do so would mean that a person, whether not having the means or for any other reason, does not exercise the right of preemption and yet he, even after decades, can exercise such a right. This would create, if one may say, some sort of a cloud on a title and uncertainty as a subsequent purchaser would not know, when he wants to sell the property, whether he can complete the transaction or not or whether a co-sharer will jump into the scene. This is not contemplated in the 1966 Act. This is bound to have an effect on the price offered by a purchaser at that time because he would have an impression of uncertainty about the proposed transaction.”
Therefore, it is the opinion of the Court that the right of pre-emption is only exercisable for the first time when the cause of such a right arises. Section 9 of the said Act operates as a bar on the plaintiff’s exercising such right on a subsequent transaction relating to the same immovable property.
The impugned order of the High Court is set aside and the order of the trial court dated 01.02.1988 and the first appellate court dated 30.03.1989 are upheld.