Case: Bhagwati Prasad Sah And Others Vs. Bhagwati Prasad Sah And Another

on the ground of vicinage by the owner of any adjoining land or house (and perhaps by the owner of the site itself, supposing him to be a different person from the vendor of the house, even though he should happen to own no land except that covered by the house)."12. It is said that the words in the brackets conceding the right of the owner of a site to pre-empt the house sold as a house indicates that the real principle is whether the house is sold as a habitate or only as materials and that in the former case irrespective of the ownership of the land or the existence of the right of pre-emption in respect thereof, the sale of the house can be pre-empted. The opening word of the passage, namely, "perhaps", shows that the author himself is not sure of the legal position. That apart, the illustration only deals with a land in respect of which there can be a right of pre-emption, i.e., the owner of the land has a freehold interest therein. Strong reliance is placed upon the decision of a Division Bench of the Allahabad High Court in Zahur v. Nur Ali((1880)I.L.R. 2 All. 99.). There, a dwelling house was sold as a house to be inhabited as it stood with the same right of occupation as the vendor had enjoyed, but without the ownership of the site. It was held that the right of pre-emption under the Mohamedan law attached to such house. The judgment is not a considered one. The learned Judges observed at p. 100 thus: "The seller not only sold the materials of the house, but such interest as he possessed as an occupier of the soil. The house was sold as a house to be inhabited on the spot with the same right of occupation as the seller had enjoyed.The learned Judges distinguished the texts cited on the ground that they applied only to the sale of the materials of a house or a house capable of and intended to be removed from its site. This judgment no doubt supports the contention of learned counsel for the respondents; but the learned Judges have not considered the well settled principle that there cannot be a right of pre-emption in respect of a land over which the vendor has no full ownership. The decision suffers from the infirmity that the said well settled principle has escaped the attention of the court. Reliance is also placed on the decision of a Division Bench of the Patna High Court in Chariter Dusadh v. Bhagwati Pandey(A.I.R. 1934 Pat. 596 .). There, the question was whether the pre-emptor had the milkiyat or ownership in the property on account of which he claimed the right of pre-emption. The pre-emptor was birtdar though he was described as a tenant in the Record of-Rights for a particular purpose. The court held that he was a full owner. This decision does not really support the respondents. There is a direct decision of a Full Bench of the Patna High Court on the question now raised, in Nathuni Ram v. Gopinath(A.I.R. 1962 Pat. 226 (F.B.)). There, as here, a right of pre-emption was claimed in respect of a house which stood on a leasehold land. After a full discussion of the subject, Choudhary J., speaking for the Full Bench, came to the following decision, at p. 229: "On a careful consideration of the authorities and the principle of law involved in the case, my concluded opinion is that, in case of a sale of different properties, the. right of pre-emption cannot be exercised with respect to one or some of them only if the enjoyment thereof is dependent on the property over which that right is not and cannot be exercised in law and consequently, where the land is sold with a house thereon, pre-emption cannot be allowed. with respect to the house only apart from the land over which the right could not be exercised on account of its being a leasehold property. The sale of a house for inhabitation or occupation, without the sale of its foundations and the land over which the foundations stand, is inconceivable, except, as pointed out in Hedaya, in case of the sale of the upper story of a house."We agree with the conclusion. As this judgment has considered the earlier decisions on the subject, we need not again refer to them.13. To summarize: A right of pre-emption is annexed to full ownership of property of co-sharers. It is not attached to property held on subordinate tenure, such as leases etc. It is an incident of the co-sharers property operating both as a right and as a burden in different situations. It is a right of substitution taking in the entire bargain. It must take the whole or nothing. It does not matter if the inability to take the whole arises out of a voluntary act or out of a legal limitation inherent in the nature of the property transferred. It is reciprocal in operation, that is, if the situation was reversed and the vendor became the pre-emptor, he should be in a position to pre-empt the co- sharers whole bargain. The two doctrines which may, for convenience, be referred to as "entire bargain" and "reciprocity" cannot operate unless both the co-sharers are full owners of their respective properties. Akar or a house standing on a freehold land is subject to the right of preemption, but a house on a leasehold land stands on a different footing. As there is no right of preemption in respect of a land held on a subordinate tenure, the right of pre-emption cannot be enforced against the house either, as the pre-emptor cannot be substituted for the entire bargain. The right must fall also on the ground that the super- structure disannexed from the land would be movable property and it is well settled that the right of pre-emption cannot be enforced in respect of movables.14.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]The judgment of this Court finally settled the question as between co-sharers. Following the decision we hold that the law of pre-emption vis-a-vis co-sharers does not infringe the fundamental right conferred under Art. 19 (1) (f) of thecannot allow the appellants to raise the saidHigh Court, in our opinion, was certainly right in disallowing the appellants from raising the question of fact for the first time in second appeal. If the plea had been taken at the earliest point of time, the respondents might have had many defences and might have explained the various dates found on the documents. Wecannot allow the appellants to raise the saida careful consideration of the authorities and the principle of law involved in the case, my concluded opinion is that, in case of a sale of different properties, the. right of pre-emption cannot be exercised with respect to one or some of them only if the enjoyment thereof is dependent on the property over which that right is not and cannot be exercised in law and consequently, where the land is sold with a house thereon, pre-emption cannot be allowed. with respect to the house only apart from the land over which the right could not be exercised on account of its being a leasehold property. The sale of a house for inhabitation or occupation, without the sale of its foundations and the land over which the foundations stand, is inconceivable, except, as pointed out in Hedaya, in case of the sale of the upper story of a house."We agree with the conclusion. As this judgment has considered the earlier decisions on the subject, we need not again refer tosummarize: A right of pre-emption is annexed to full ownership of property of co-sharers. It is not attached to property held on subordinate tenure, such as leases etc. It is an incident of the co-sharers property operating both as a right and as a burden in different situations. It is a right of substitution taking in the entire bargain. It must take the whole or nothing. It does not matter if the inability to take the whole arises out of a voluntary act or out of a legal limitation inherent in the nature of the property transferred. It is reciprocal in operation, that is, if the situation was reversed and the vendor became the pre-emptor, he should be in a position to pre-empt the co- sharers whole bargain. The two doctrines which may, for convenience, be referred to as "entire bargain" and "reciprocity" cannot operate unless both the co-sharers are full owners of their respective properties. Akar or a house standing on a freehold land is subject to the right of preemption, but a house on a leasehold land stands on a different footing. As there is no right of preemption in respect of a land held on a subordinate tenure, the right of pre-emption cannot be enforced against the house either, as the pre-emptor cannot be substituted for the entire bargain. The right must fall also on the ground that the super- structure disannexed from the land would be movable property and it is well settled that the right of pre-emption cannot be enforced in respect of movables.