Sunday, 26 July 2015

Whether right of pre-emption can be claimed against valid bonafide gift deed?

I have considered the rival submissions of the parties.
The petitioners have questioned the legality of the deed of gift
executed by respondent no. 6 in favour of respondent no. 8 on two
counts. It has been submitted that the said deed of gift was brought
into existence only to defeat the right of preemption. The correct
address of the donee has not been stated in the said document. The
donor (respondent no. 6) even after execution of the deed of gift
continued in possession of the said land. He has, however, not
disputed the legal position in law that right of preemption would not 
survive in respect of deed of gift. This is presumably because the
statutory provisions clearly spelt out the same. Further, in Dhanik Lal
Mahto (supra), a Division Bench of this Court, while dealing with
this question in paragraph 7 held as under:
7. The contention aforesaid takes one to the very
root of the nature of the right of pre-emption generally
and in particular under S.16(3) of the Act It is
common ground before us that S.16(3) is only a very
limited statutory recognition of the otherwise wellknown
customary right of pre-emption. It has been
held in a long line of precedent having the stamp of
approval of the Final Court that the right of preemption
is indeed a piratical right which may well be
defeated by all legitimate means. Now, the
explanation to sub-sec.(1) of S.16 in terms excludes
inheritance, bequest or gift from the ambit of transfer
under the said section. Therefore, if a valid and
genuine deed of gift is made, the same is obviously
not pre-emptable under the statute. Consequently, a
bona fide transaction of gift can legitimately affect
and defeat a tenuous claim to pre-emption. 
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7093 of 1995

Urmila Devi, wife of Sri Budhi Nath Prasad Yadav,
Versus
State of bihar

CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL
Citation;AIR 2015(NOC)859 Patna
Date: 16-04-2015

The writ application seeks to challenge the Resolution of
Board of Revenue dated 14.7.1995 passed by respondent Additional
Member, Board of Revenue in Revision Case No. 242 of 1993 copy
whereof has been enclosed as Annexure-3.
Background facts giving rise to the writ application may
be summarized as under:-
Respondent no. 5 executed a sale deed on 21.10.1989 in
respect of 9 kathas of the subject land in favour of respondent no. 6.
On the same day, respondent no. 5 executed another sale deed in Patna High Court CWJC No.7093 of 1995 dt.16-04-2015 2
respect of 6 kathas of land in favour of respondent no. 7 who is wife
of respondent no. 6. Both the lands formed a compact block. There is
no controversy that the writ petitioner is shown as boundary raiyat on
the north of the vended plots/lands. The registration of both the sale
deeds was made on 28.11.1989. In the meanwhile, respondent no. 6
executed a deed of gift in respect of 5 kathas and odd land forming
part of the first sale deed in favour of his own sister (respondent no. 8)
on 1.11.1989. The said deed of gift was subsequently registered on
15.12.1989. On 20.2.1990, the writ petitioner filed two applications
under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling
Area and Acquisition of Surplus Land) Act, 1961 (for short “the Act”)
claiming her right of preemption in respect of the lands covered by
both the sale deeds dated 21.10.1989. This gave rise to L.C. Case No.
14/1989-90 and 15/1989-90 on the file of the respondent Land
Reforms Deputy Collector. On notice, the purchaser appeared and
contested the claim of preemption. The respondent Land Reforms
Deputy Collector by a composite order dated 11.4.1990 (Annexure-1)
allowed both the claims of preemption filed by the writ petitioner. The
said order was assailed by the purchaser(s) before the Collector in
Appeal No. 4/1991-92. The said appeal was considered and rejected
by order dated 23.4.1993 (Annexure-2). The purchaser(s), dissatisfied
with the said order, filed a revision application before the Board of Patna High Court CWJC No.7093 of 1995 dt.16-04-2015 3
Revenue which gave rise to Case No. 242 of 1993. The Additional
Member, Board of Revenue, after hearing the parties, allowed the
revision application by resolution dated 14.7.1995 (Annexure-3). The
petitioner has, therefore, filed the present writ petition.
Heard Mr. R.C. Thakur in support of the application, Mr.
Ram Bilas Thakur for the private respondents and Mr. Pratik Sinha,
A.C. to G.A. 12 for the State.
It has been submitted by the Counsel for the petitioner
that the petitioner, being the adjoining raiyat of the vended
lands/plots, has a legal right of preemption which has been defeated
by the Board of Revenue on non-existent ground(s). Admittedly, the
purchasers are not the adjoining raiyats and/or co-sharers of the
subject/vended land. The deed of gift executed by respondent no. 6 in
favour of respondent no. 8 was forged and fabricated one inasmuch
as the correct address of respondent no. 8 was not inserted therein.
Even after execution of deed of gift, the respondent no. 6 continued in
physical possession thereof. The same was, therefore, executed to
defeat the lawful claims of the petitioner.
Counsel for the purchasers-respondent(s) conversely
submitted that in both the sale deeds, recitals were made that the lands
were being purchased for the purpose of construction of residential
house. The area covered by the two sale deeds is not very big. If the Patna High Court CWJC No.7093 of 1995 dt.16-04-2015 4
land has changed its physical feature(s), the right of preemption would
fail. Both the Courts below have not considered this aspect in so much
so no enquiry in this regard was made and finding recorded. It has
next been submitted that before presentation of the applications under
Section 16(3) of the Act by the preemptor/writ petitioner, part of the
subject land was already alienated by way of deed of gift in favour of
respondent no. 8 which was also registered on 15.12.1989. The claim
of preemption being weak right is bound to fail as no claim of
preemption would be maintainable in respect of deed of gift. He relies
in this regard on the explanation appended to the provisions contained
in Section 16(3) of the Act as well as on the case of Dhanik Lal
Mahto vs. Additional Member, Board of Revenue A.I.R. 1986 Pat
95.
I have considered the rival submissions of the parties.
The petitioners have questioned the legality of the deed of gift
executed by respondent no. 6 in favour of respondent no. 8 on two
counts. It has been submitted that the said deed of gift was brought
into existence only to defeat the right of preemption. The correct
address of the donee has not been stated in the said document. The
donor (respondent no. 6) even after execution of the deed of gift
continued in possession of the said land. He has, however, not
disputed the legal position in law that right of preemption would not 
survive in respect of deed of gift. This is presumably because the
statutory provisions clearly spelt out the same. Further, in Dhanik Lal
Mahto (supra), a Division Bench of this Court, while dealing with
this question in paragraph 7 held as under:
7. The contention aforesaid takes one to the very
root of the nature of the right of pre-emption generally
and in particular under S.16(3) of the Act It is
common ground before us that S.16(3) is only a very
limited statutory recognition of the otherwise wellknown
customary right of pre-emption. It has been
held in a long line of precedent having the stamp of
approval of the Final Court that the right of preemption
is indeed a piratical right which may well be
defeated by all legitimate means. Now, the
explanation to sub-sec.(1) of S.16 in terms excludes
inheritance, bequest or gift from the ambit of transfer
under the said section. Therefore, if a valid and
genuine deed of gift is made, the same is obviously
not pre-emptable under the statute. Consequently, a
bona fide transaction of gift can legitimately affect
and defeat a tenuous claim to pre-emption. It has been
authoritatively so held in Bishan Singh v. Khazan
Singh, AIR 1958 SC 838 in the terms following……”
The question is whether on these two contentions the
deed of gift can be held to be forged and fabricated. It is gainsaying
that if the deed of gift is valid then the claim of preemption is bound
to fail as has been found and held by the Revisional Court in
impugned resolution. There is no dispute that the deed of gift was
subsequently presented and registered on 15.12.1989. The title of the
land covered by the deed of gift passed in favour of the donee with
effect from the date of execution thereof. Both these dates fall prior to 
the lodgment of the petition before the LRDC claiming right of
preemption. If the address of the donee has incorrectly been stated in
the deed of gift, the same can very well be corrected by executing
another document seeking correction in the document. It further
appears that respondent no. 8 is own sister of respondent no. 6. In
such circumstances, respondent no. 6 may be looking after the land
which was gifted in favour of his sister. It is difficult for this Court,
based on the pleadings on record, to accept that the donor remained in
possession of the gifted land. On these facts, I am afraid, the Revenue
Court cannot declare a document to be inoperative or forged. Such
matter can be agitated before the Court of competent civil jurisdiction.
This is the case here. Admittedly, no suit prior to the lodging of the
case or even thereafter has been filed by the preemptor. If part of the
land which formed block has been gifted and against which no such
claim would be maintainable then the preemptor loses his/her right of
being adjoining raiyat of the entire lands vended under the two sale
deeds. This being the legal position, I am unable to find any patent
illegality in the impugned resolution of the Board of Revenue
(Annexure-3) wherein these aspects of the matter have been
considered to allow the revision application and set aside the two
orders passed by the respondent LRDC as well as the Collector.
The writ application fails. It is, accordingly, dismissed. 
There shall be no order as to costs.
Pankaj/-
(Kishore Kumar Mandal, J)

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