BHAGWATI PRASAD SAH AND OTHERS versus BHAGWATI PRASAD SAH AND ANOTHER

BHAGWATI PRASAD SAH AND OTHERS versus BHAGWATI PRASAD SAH AND ANOTHER

A right of pre-emption can be exercised only where the property is held in full ownership by the transferor. Sale of leasehold interest in land is not pre-emptible under custom/Muhammadan law as adopted in Bihar, and the right of pre-emption cannot be claimed in respect of the super-structure (house) standing on such land. The law of pre-emption among co-sharers does not infringe fundamental rights under Article 19(1)(f).

Parties
Appellants: Bhagwati Prasad Sah and Others; Respondents: Bhagwati Prasad Sah and Another
Jurisdiction
India
Judgment Date
10 October 1963
Procedural Posture
Civil Appeal / Supreme Court: Appeal by Special Leave From Judgment and Order of Patna High Court
Outcome
Appeal allowed.
Legal Topics
Pre Emption Under Muhammadan Law, Right in Leasehold Vs. Full Ownership, Article 19(1)(f) Constitution of India, Customary Application of Pre Emption by Hindus, Limitation of Pre Emption Regarding Leasehold Property
Property Law Constitutional Law Customary Law Pre Emption Under Muhammadan Law Right in Leasehold Vs. Full Ownership Article 19(1)(f) Constitution of India Customary Application of Pre Emption by Hindus Limitation of Pre Emption Regarding Leasehold Property

Case Brief

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Parties

Bhagwati Prasad Sah and Others

Appellants

Bhagwati Prasad Sah and Another

Respondents

Procedural Posture

Civil Appeal / Supreme Court: Appeal by Special Leave From Judgment and Order of Patna High Court

Legal Issues

  1. 1 Whether the law of pre-emption as between co-sharers violates Article 19(1)(f) of the Constitution of India
  2. 2 Whether pre-emption is maintainable regarding leasehold (rent-paying) land and the super-structure thereon (house)
  3. 3 Whether the right of pre-emption can be exercised only for the entire property sold or also for part thereof

Ratio Decidendi

A right of pre-emption can be exercised only where the property is held in full ownership by the transferor. Sale of leasehold interest in land is not pre-emptible under custom/Muhammadan law as adopted in Bihar, and the right of pre-emption cannot be claimed in respect of the super-structure (house) standing on such land. The law of pre-emption among co-sharers does not infringe fundamental rights under Article 19(1)(f).

Court Disposition

Appeal allowed.

Orders

  • Decrees of the Subordinate Judge's Court and the High Court set aside.
  • Decree of the trial court (dismissing pre-emption suit) restored.