Paragraph numbers below are the court’s original numbering, recovered from the source text.
11. The constitutionality of the provisions of the said Act came up for consideration before a Constitution Bench of this Court in Atam Prakash v . -";, State of Haryana & Ors. [1986] 2 SCC 249, wherein Chinnappa Reddy, J. held: "In the first case, (Bhau Ram case), the right of pre-emption given to co-sharers was held to be a reasonable restriction on the right to D hold, acquire or dispose of property conferred by Article 19(l)(f) of t the Constitution. What has been said there to uphold he right of pre- emption granted to a co-sharer as a reasonable restriction on the right to property applies with the same force to justify the classification of co-sharers as a class by.themselves for the purpose of vesting in them E the right of pre-emption. We do not think that it is necessary to restate what has been said in that case. We endorse the views expressed therein. The right of pre-emption vested in a tenant can also be easily sustained. There can be no denying that the movement of all land reform legislations has been towards enabling the tiller of the soil to obtain proprietory right in the soil so that he may not be F disturbed from possession of the land and deprived of his livelihood by a superior proprietor. The right of pre-emption in favour of a tenant granted by the Act is only another instance of a legislation aimed at protecting the tenant. There can be no doubt that tenants form a distinct class by themselves and the right of pre-emption granted in G their favour is reasonable and in the public interest. We are, therefore, of the view that clause 'fourthly' of Section 15(1)(a), clauses 'fourthly and fifthly' of Section 15(1)(b) and clause 'fourthly' of Section 15(I)(c) are valid and do not infringe either Article 14 or 15 of the Constitution."
12. While upholding the validity of the provisions of the special Act, H A this Court struck down the right of pre-emption based on consanguinity, stating : "We are thus unable to find any justification for the classification contained in Section 15 of the Punjab Pre-emption Act of the kinsfolk entitled to pre-emption. The right of pre-emption based on consanguinity is a relic of the feudal past. It is totally inconsistent with the constitutional scheme. It is inconsistent with modem ideas. The reasons which justified its recognition quarter of a century ago, namely, the preservation of the integrity of rural society, the unity of _,,,. ' family life and the agnatic theory of succession are today irrelevant. c The list of kinsfolk mentioned as entitled to pre-emption is intrinsically defective and self-contradictory. There is, therefore, no reasonable classification and clauses 'First', 'Secondly' and 'Thirdly' of Section 15(l)(a), 'First', 'Secondly' and 'Thirdly' of Section 15(l)(b), clauses 'First', 'Secondly' and 'Thirdly' of Section 15(l)(c) and the whole of Section 15(2) are, therefore, declared ultra vires the Constitution."
13. Respondent No.9, thereafter, could not have claimed a right of pre- emption as a daughter of respondent No.8.
14. The fact that Appellant has purchased the suit premises was known to her. Appellant was in possession of the land. The execution of a registered E deed of .sale shall also be treated as a notice in terms of Section 3 of the Transfer of Property Act, 1882, which is in the following terms : " ……… "a person is said to have notice" of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. Explanaion 1.-Where any transaction relating to immovable .property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian 'i Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which .I.. LACH~MAN DASS v. JAGAT RAM [S.B. SINHA, J.] is being acquired, or of the property wherein a share or interest is A being acquired, is situated: Provided that (I) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, B 1908 (16 of 1908), and the rules made thereunder, (2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under Section 51 of that Act, and (3) the particulars regarding the.transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act. Explanation II. Any person acquiring any immovable property or any share or ipterest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof."
15. Despite such notice, the appellant was not impleaded as a party. His right, therefore, to own and possess the suit land could not have been taken away without giving hir:i an opportunity of hearing in a matter of this nature. To hold property is a constitutional right in terms of Article 300-A of the Constitution oflndia. It is also a human right. Right to hold property, therefore, cannot be taken away except in accordance with the provisions of a statute. If a superior right to hold a property is claimed, the procedures therefor must be complied with. The conditions precedent therefor must be satisfied. Even otherwise, the right of pre-emption is a very weak right, although it is a statutory right. The Court, while granting a relief in favour of a preemptor, must bear it in mind about the character of the right, vis-a-vis, the constitutional and human right of the owner thereof.
16. The manner in which the purported consent decree was entered into by and between Defendant No.9 on the other hand and Defendant Nos. I and 2 is tell tale. Defendant Nos. I and 2 having transferred their right and interest, could not have conveyed any right in the property of Defendant No.9. No such right existed in them.
17. In the consent decree no finding was arrived at as to on what basis the right of Defendant-Respondent No.9 was considered to be a superior right c (2007] 2 S.C.R. A of pre•emption. Defendant No.9 out of the total consideration amount of Rs.30,000/-, deposited only I/5th thereof, i.e., Rs.6,000/- in the Court. Respondent Nos. I and 2 neither said to have claimed the said amount nor the rest of the amount of Rs.24,000/- could have been paid in their favour by Defendant No.9.
18. If the Defendant Nos. I and 2 only could not have accepted the said amount as a valid consideration of passing of a decree of pre-emption in favour of the Respondent No.9; the purported consent decree, in our opinion, was void ab initio. Moreover, in the aforementioned facts and circumstances of this case, the appellant was a necessary party therein. No decree, therefore, C could have been passed in his absence. The parties to the said suit and, in particular, Defendant-Respondent Nos. I and 2, therefore, by suppression of material facts committed a fraud on the Court in obtaining the said decree. It may be true that collusion between Respondent No.9 and Defendant Nos.I and 2 'was required to be specifically pleaded, but in this case collusion between them is apparent on the face of the records. The circumstances D obtaining in the case lead to only one conclusion that the parties were in collusion with each other for the purpose of obtaining the said decree.
19. Mrs. Rekha Palli, learned counsel for the respondent, therefore, may not be correct in contending that the appellant was not a necessary party. The contention of Mrs. Palli that even if the defendants were imp leaded as party, E he did pot have any other defence, does not find favour with us.
20. We cannot speculate in regard to the nature of defence which could be raised in the suit. In any event in a case of this nature, where the appellant was a necessary party, in his absence the suit could not proceed and, therefore, v F the said question does not arise for consideration in this case.
21. In Shyam Sunder & Ors. v. Ram Kumar & Anr. [200 I] 8 SCC 24,• this Court opined : · " …. The main object behind the right of pre-emption, either based on custom or statutory law, is to prevent intrusion of a stranger into the family-holding or property. A co-sharer under the law of pre-emption · has right to substitute himself in place of a stranger in respect of a portion of the property purchased by him, meaning thereby that where a co-sharer transfers his share in holding, the other co-sharer has right to veto such transfer and thereby prevent the stranger from acquiring the holding in an area where the law of pre-emption prevails. LACHHMAN DASS v. JAGAT RAM [S.B. SINHA, J.] Such a right at present may be characterized as archaic, feudal and A outmoded but ti.is was law for nearly two centuries, either based on custom 6lr statutory law. It is in this background the right of pre- emption under statutory law has been held to be mandatory and not mere discretionary …. "
22. We have noticed hereinbefore that plaintiff was not a co-sharer of B her father. She could not have claimed a right of pre-emption on the basis of consanguinity. Had, therefore, an opportunity of hearing been given, the plaintiff-appellant could have shown that she did not have any such right.
23. The impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed. Respondents shall bear the cost of the C appellant. Advocate's fee is assessed at Rs.5,000/-. S.K.S .. Appeal allowed .