A MOHD. NOOR AND ORS. ETC. ETC.

v.

MOHD. IBRAHIM AND ORS. Etc. ETC.

JULY 19, 1994

B

[R.M. SAHAJ AND B.L. HARSARIA, JJ.)

Rajasthan Pre-emption Act, 1966-Sections 2(vii), 3, 4, 11/Rajasthan

Tenancy Act, 195~Section 14(a)-Pre-emption-fl.ight of-Co-sharers in

Khatedari rights of agricultural /ands-Whether entitled to claim pre-emp­

C tiolt-He/d, No-Transfer made by a Khatedar tenant-Not a transfer of

ownership.

D

Rajasthan Tenancy Act, 195~Sections J4(a), 14(c), 40to 43, 59-Na­

ture of Khatedari rights-Transfer of such right;--W/iether amounts to transfer

of ownership-Held, No.

The appellants in the present appeal were co-shares in the Khatedari

rights or the land transferred. The question that arose for consideration

was whether a co-sharer or khatedari rights of agricultural land was

entitled to claim pre-emption under the Rajasthan Pre-Emption Act, 1966.

E Consequently the dispute was whether the sale or the land amounted to

transfer or ownership within meaning of Section 2(vii) or the

Act.

Dismissing the appeal, this Court

HELD :

1.1. A Khatedar tenant is a person by whom rent is payable

F u/s 43 or the Rajasthan Tenancy Act. The effect or it in law is that such a

person cannot

be deemed to be an absolute or unlimited owner which is

necessary before the right of pre-emption can

be exercised.

[802-E]

1.2. The Rajasthan Tenancy Act permits transfer of agricultural

land. Therefore, a kbatedar tenant

is entitled to transfer bis tenancy land.

G But a

co·sharer can claim the right of the pre-emption only iC it is a sale

of ownersMp. The tenancy legislation visulaizes transfer of subordinate

right but the Rajasthan Pre-Emption

Act, 1966 recognises transfer or

absolute right

only. Transfer or Khatedari rights

being transfer or subor·

dinate right only, no right or pre-emption exists in such transfer. Even

H though a kbatedar tenant is an owner for all practical purposes, bis

790

-

NOOR v. IBRAHIM [SAHAl,J.] 791

ownership is limited and, therefore, the transfer by a Khatedar tenant of A

an agricultural holding does not give right to a co-sharer to claim right of

pre-emption. Right of pre-emption

is a right of substitution in

ownership

either of land or house. It is not available in transfer of tenancy.

(793-H, 794-A·D)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2696 of B

1982 Etc. Etc.

From the Judgment and Order dated 1.12.81 of the Rajasthan High

Court in B.B.C.R.S.A.No. 174 of 1981:

B.D. Sharma, Rajendramal Tetia, Indira Makwana and Narotam C

Vyas for the Appellants.

Sushi! Kumar Jain and Sudhanshu Atreya for the Respondent.

VJ. Francis for the Respondent in Nos. 5 & 8.

The Judgment of the Court was delivered by

R.M. SAHA!, J. The short and the only question that arises for

consideration in these appeals is whether a co-sharer of khatedari rights of

agricultural land

is entitled to claim pre-emption under the Rajasthan Pre-Emption Act, 1966 (hereinafter referred to as 'the Act').

D

E

Right of pre-emption has not been looked upon favourably as it

operates, 'as a

clog on the right of the owner to alienate his property'. In

Radhakishan Laxminarayan .Toshniwal v. Shridhar

Ramchandra Aishi &

Ors., AIR (1960) SC 1368 = (1961) 1 SCR 248, it was observed that, 'to

(To) defeat that

law of pre-emptiori by any legitimate means' was not fraud. F

Therefore, availability of this weak or archaic right has to be

construed

strictly. It the Act, there is no provision extending the benefit of pre-emp-

tion

to agricultural holdings. A person claiming pre-emption, therefore, has

to squarely fall with in the forecorners of the provisions

con!ained therein.

The right of pre-emption

is defined in Section 3 to means, 'a right

accruing under Section 4 of the Act upon transfer of

any immovable

property to acquire such property and to be substituted as the transferee

thereof

in place of and in preference to the original transferee'. Section 11

G

of the Act entitles a person to bring a suit for pre-emption when a transfer H

792 SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A has been completed. Transfer under clause (viii) of Section 2 of the Act

means

'a sale, or a mortgage where the final decree for foreclosure in re~pect thereof has been passed'. A transfer of immovable property for

purposes of the Act, therefore, must be a transfer or mortgage. Sale has

been defined

by clause (vii) of

Section 2 to mean, 'a transfer of ownership

B

in immovable property in exchange for a price paid or promised or partly

paid and partly promised'. A co-sharer under Section 2(i) of the Act is

entitled to claim pre-emption by filing a suit under Section 11 of the Act.

Since factually there was no dispute that each of the appellants are co­

sharers in the khatedari rights of the land transferred the entire dispute

that shall clinch the issue

is if the sale of the land amounted to transfer of

C ownership within meaning of

Section 2(vii) of the Act.

To determine this it

is necessary to examine the nature of Khatedari

rights and if a transfer of such right amounts to transfer of ownership. A

khatedar tenant

is one of the tenants mentioned in clause (a) or

Section

14 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as 'the

D Tenancy Act') and clause (c) defines the circumstances in whith a person

may become a khatedar tenant. Such a tenant has a right to bequeath his

interest under Section 59 of the Tenancy Act and transfer his interest under

Section 41 of the same Act on conditions specified in Sections 42 and 43.

His interest is heritable under Section 40 as well. Is that sufficient in law

E

F

to make him owner of the property? Is the transfer made by a khatedar

tenant

is a transfer of ownership? A khatedar tenant, admittedly, is a

person

by whom rent is payable under

Section 43 of the Tenancy Act. The

effect of it in law

is that such a person cannot deemed to be an absolute

or unlimited owner which

is necessary before the right of pre-emption can

be exercised. In

Butterworth's

Word< and Phrases Legal Defined, Second

Edition, Vol. 4, Page 61, 'ownership' has been defined as under :

"Ownership consists of innumerable rights over property, for ex­

ample, the rights of exclusive enjoyment, of destruction, alteration,

and alienation, and of maintaining and recovering possession of

G the property from all other persons. Such rights are conceived not

as separately existing, but as merged in one general right of

ownership

11

•

Salmond summed up the concept of ownership as under :

H "Summing up the conclusion to which we have attained, we may

-:

-

NOOR v. IBRAHIM !SAHA!. J.] 793

define the rights of ownership in a material thing as the general, A

permanent and inheritable right to the uses of that thing."

Austin in his book of Jurisprudence, 3rd Edition, Page 817 defines

the 'right ownership'

as

'a right indefinite in point of user, unrestricted in point of disposi­

tion, and unlimited

in point of duration over a determinate thing.'

The theoretical concept of 'ownership', therefore, appears to be that a

person can be considered to be owner if

ho has absolute dominion over it

in all respects and is capable of transfering such ownership. Heritability

and transferability are not doubt some of the many and

may be most

important ingredients of ownership. But they

by themselves cannot be

considered

as sufficient for clothing a person with absolute ownership.

Their absence

may establish lack of ownership but iheir presence by itself

B

c

is not sufficient to establish it. The ownership concept does not accord with D

the status of a person who is paying the rent. A tenant under various

legislations either urban or rural property, agricultural or otherwise, enjoys

right of heritability and transferability. At the same time, he

does not

become owner of the property. Transfer of ownership

is distinct and

different from transfer of interest in the property. A licensee or even a

tenant

may be

em:tled by law to transfer his interest in the property but

E

that is not a transfer of ownership. For instance, a lessee from a corpora-

tion or a local body or even Stage Government to raise building may have

heritable and transferable right but such a person

is not an owner and the

transfer in such a case of his interest in the property and not the ownership.

In

Inder

Sen & Anr. v. Naubat Singh & Ors., 1.L.R. 7 All. 553(FB) it was

held that absolute ownership is an aggregate of compendium of rights such

as right of possession, the right of enjoying usufruct of the land and so on

F

and so forth. The ownership, therefore, is a sum total of various subor­

dinate rights. The right to transfer the subordinate right either under

general

law or statutory law does not make it transfer of ownership. Section G

6 of the Transfer of Property Act, 1882 permits transfer of any property.

It may be transfer of absolute or subordinate right. The Tenancy Act

permits transfer of agricultural land, therefore, a khatedar tenant

is entitled

to transfer

his tenancy land. But a co-sharer can claim the right of pre­

emption only

if it is a sale of ownership. ln

other words the tenancy

legislation visualizes transfer of subordinate right but the Act recognises

H

794 SUPREME COURT REPORTS [1994]SUPP. 1 S.C.R.

A transfer of absolute right only. Transfer of khatedari rights being transfer

of subordinate right only no right of pre-emption exists

in such transfer.

It is true that after abolition of zamindari in various

States the tiller of the

soil has become owner of the land. But it cannot be disputed that the

proprietorship of the land vests

in the

State 'to whom the rent is payable.

B

It is not uncommon that a person in possession of an agricultural holding

even

as an owner cannot put his land to any use as he desires. For instance,

if the

land has to be converted from agricultural use to non-agricultural

use then the tenure-holder

is required to obtain permission of the

State

Government or the appropriate authority appointed by it. All these indi­

cate that even though a Khatedar tenant

is an owner for all practical

C purposes but his

OWnership is limited and, therefore, the transfer by a

Khatedar tenant of an agricultural holding does not

give right to a

co­

sharer to claim right of pre-emption. '!'he submission that the ownership of

the State was a mere fiction cannot be accepted. Right of pre-emption is

a right

of substitution in ownership either of land or house. It is not

D available in transfer of tenancy.

In the result, all these appeals fail and are dismissed.

A.G. Appeals dismissed.

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