Friday, 20 April 2018

Leading judgment on law of pre-emption

The issue to be decided is a legal issue which stands in a narrow compass. Before dealing with the issue itself, it would be pertinent to refer to the Constitution Bench judgment of this Court in the case of Shyam Sunder and Ors. v. Ram Kumar and Anr., MANU/SC/0405/2001 : (2001) 8 SCC 24 wherein this Court considered the effect of the amendment made to the 1913 Act. This Court held that if Section 15 of the 1913 Act was amended during the pendency of the appeal before the Supreme Court, the decree of pre-emption would not be affected by such amendment. After discussing the entire law, the Constitution Bench culled out the following legal principles:

10. On an analysis of the aforesaid decisions referred to in the first category of decisions, the legal principles that emerge are these:

1. The pre-emptor must have the right to pre-empt on the date of sale, on the date of filing of the suit and on the date of passing of the decree by the court of the first instance only.

2. The pre-emptor who claims the right to pre-empt the sale on the date of the sale must prove that such right continued to subsist till the passing of the decree of the first court. If the claimant loses that right or a vendee improves his right equal or above the right of the claimant before the adjudication of suit, the suit for pre-emption must fail.

3. A pre-emptor who has a right to pre-empt a sale on the date of institution of the suit and on the date of passing of decree, the loss of such right subsequent to the decree of the first court would not affect his right or maintainability of the suit for pre-emption.

4. A pre-emptor who after proving his right on the date of sale, on the date of filing the suit and on the date of passing of the decree by the first court, has obtained a decree for pre-emption by the court of first instance, such right cannot be taken away by subsequent legislation during pendency of the appeal filed against the decree unless such legislation has retrospective operation.

Civil Appeal No. 2062 of 2009

Decided On: 08.09.2017

Vijay Singh Vs. Shanti Devi and Ors.

Hon'ble Judges/Coram:
Madan B. Lokur and Deepak Gupta, JJ.
Citation: (2017) 8 SCC 837,2018(2) MHLJ 7.
Read full judgment here: Click here

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