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2020 (10) TMI 1362 - SUPREME COURTRight of pre-emption in case of sale of immovable property - time limitation - whether the right of pre-emption can be enforced for an indefinite number of transactions or it is exercisable only the first time? - HELD THAT:- The stipulation in Section 21 is that the right of pre-emption has to be exercised, in case of a sale, within one year from the date of sale and if the sale is not by a registered deed, on the purchaser taking the physical possession of any part of the property sold. Since the period has to be as per Article 97, the wordings of the Article show that it is one year from the date when the sale is registered (in case such registration takes place as is in the present case). It is this expression, which is sought to be construed by the Respondent No. 1 as well as by the High Court to mean that it is a recurring right for every sale - A reading of the Section 9 shows that the loss is only occasioned, when, within two months from the date of service of the notice, the price is not tendered. However, that is the loss of the right, vis-à-vis the transaction in question. The moot point is whether such a right of pre-emption is a recurring right, i.e. every time the property is sold, the right would rearise, in a case the pre-empting Plaintiff himself has chosen not to exercise such right over the subject immovable property when sold to another purchaser earlier. It would not be appropriate or permissible to adopt legal reasoning making such a weak right, some kind of a right in perpetuity arising to a Plaintiff every time there is a subsequent transaction or sale once the Plaintiff has waived his right or pre-emption over the subject immovable property. The loss of right mandated Under Section 9 of the Act is absolute. A plain reading of the said provision does not reveal that such right can re-arise to the person who waives his right of pre-emption in an earlier transaction. To do so would mean that a person, whether not having the means or for any other reason, does not exercise the right of preemption and yet he, even after decades, can exercise such a right. So far as the case of Kutina Bibi [1960 (7) TMI 68 - ASSAM HIGH COURT] is concerned, the factual basis of that decision does not fit with the legal controversy involved in this proceeding. In that case, by a previous transaction the entire land had been sold. It was held in that perspective, that the Plaintiff's right as a co-sharer had become disputed in absence of challenge to the previous transaction. It is opined that such a right is available once-whether to take it or leave it to a person having a right of pre-emption. If such person finds it is not worth once, it is not an open right available for all times to come to that person. The aforesaid being the position, this would itself be an impediment in exercise of the right of preemption in a subsequent transaction. The judgments referred to by the Respondent of Bishan Singh [1958 (5) TMI 52 - SUPREME COURT] and Barasat Eye Hospital [2019 (10) TMI 1560 - SUPREME COURT] are only for the proposition that the right of pre-emption is a right of substitution-no doubt exists over this proposition. The question is whether this right of substitution can be exercised recurringly or only once. Our answer to the query is 'only once'. The right of pre-emption is only exercisable for the first time when the cause of such a right arises, in a situation where the Plaintiff-pre-emptor chooses to waive such right after the 1966 Act becoming operational. Section 9 of the said Act operates as a bar on his exercising such right on a subsequent transaction relating to the same immovable property. Appeal allowed.
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