BHOOP ALLEGED SON OF SHEO v. MATADIN BHARDWAJ SON OF LAKMI CHAND

Citation: [1990] SUPP. 3 S.C.R. 410

Court: Supreme Court of India

Bench: K. JAGANNATHA SHETTY, A.M. AHMADI

Case summary

5,000 that the executant decree holder or basis of executant decree holder do not (now) have, nor they will have concern of any kind with the aforesaid decree or its subject matter Le....

Judgment text

The Judgment of the Court was delivered by AHMADI, J. In suit No. 108 of 1967 the learned Sub-Judge, Ist Class, Mahendergarh, granted a pre-emption decree in respect of a parcel Of agricultural land in favour of one Shanti Devi and against the appellant herein. Under the decree she was required to dep ctober 14, 1968 whereunder Shanti Devi was required to deposit four-fifth of the sale price by November 18, 1968. The respondent Matadin obtained a Deed of Assignment in respect of the said decree for Rs. 10,000. A copy of this document is produced on record. After narrating the fact of Shanti Devi having secured a pre-emption decree and taking note of her obligation to deposit four-fifth of ihe s&le price on or before November 18, 1968, the document r! 'cites as under: "Therefore, I give it in writing today transfering the decree through assignment in favour of the aforesaid S! iri Matadin Bhardwaj in lieu of Rs. 10,000 received in advance already while agreement to transfer.

decree of possession of agri- C\lltural land through assignment was executed, wpile I am in sound sense and mind, seeing it a profitable bargain, because this decree was attained by executant on the basis of right of pre-emption against the aforesaid Bhup in him of Rs. 5,000 that the executant decree holder or basis of executant decree holder do not (now) have, nor they will have concern of any kind with the aforesaid decree or its subject matter Le. agricultural land or with its possession" It is further stated that Matadin will be entitled to possession of the 111nd from the Judgment-debtor by proceeding with the execution after having his name substituted in her place. It is crystal clear from the recitals in the document that Shanti Devi had assigned her right to seek possession and the vendee was informed of the pendency of the execution proceedings.

Dr, Ghose contends that under the document as it st1mds she had not sold the land to Matadin but had merely assigned the decree to him with a right to secure possession of the agricultural land from the Judgment-debtor. Relying on the unreported decision of the Allahabad High Court in Sarju Prasad v. Jamna Prasad, S. A. from Order No. 45 of 1883 decided on November 12, 1883 he stressed that pre-emption decree being (IUrely personal it could not be transferred so as to entitle the vendee to execute the same. The question then is whether Matadin can maintain the said proceedings and obtain possession of the land in question? It is common knowledge that the right of pre-emption is generally conferred on a co-sharer in the property or on a person who claims some right over the property e. g. , a right of way, etc. , or on the ground of vicinage i. e. being an owner of the adjoining property.

This right 0 may be founded in statute or custom or personal law by which the parties are governed. The sole object of conferring this right on a co-sharer or owner of an adjacent immovable property is to exclude stn1ngers from acquiring interest in an immovable property as a co-sharer or to keep objectionable strangers away from the neighbourhood. This right is purely personal and cannot be transferred to a third party for the obvious reason that it wo1dd defeat the very purpose of its conferment. That is why the Allahabad High Court in Sarju Prasad (supra) he. Id that a decree for pre-emption being purely personal iμ character could not be transferred so as to entitle the purchaser to execute the same. Dr. Ghose, therefore, submitted that Matadin was not entitled to put the decree to execution and obtain possession of the pre-emptional property from the appellant.

This submission, in our view, overlooks the scheme of Section 146, Order 20 rule 14 and order 21rule16 of the Code of Civil Procedure. Section 146, which was introduced for the first time in the 1908 Code, lays down that where any proceeding is taken or application is made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him, unless otherwise provided by the Code or any other extant law. Then comes Order 20 rule 14 which specifically deals with pre-emption decrees.

It provides that where the Court decrees a claim to preemption in respect of a particular sale of property, the Court shall specify a day on or before which the purchase money shall be paid (if not paid earlier) and direct that on payment into Court of such purchase money on or before the specified day, the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment. The words "whose title thereto shall be deemed to have accrued from the date of payment" make it clear that immediately on payment of the purchase money on or before the specified date, the title to the property would vest in the pre-emptor without any further documentation. There can, therefore, be no doubt that as soon as Shanti Devi deposited the purchase money i. e.

, the balance four-fifth amount in Court on November 19, 1968, the title to the pre-emptional land accrued to her by the fiction of law and she became the owner of the said land and the Judgment-debtor was under an obligation to deliver possession thereof to her by the thrust of the words "the defendant shall deliver possession of the property to the plaintiff" in clause (b) of sub-rule (1) of rule 14 of Order 20 CPC. When Shanti Devi executed the document, described as a deed of assignment, she clearly transferred her interest in the said pre-emptional land to Matadin. This is clear from the language of the document wherein after the extracted portion it is recited: "Matadin Bhardwaj will have the capacity of decreeholder-assignee the same rights which have accrued to the executantdecree-holder". These words leave no doubt that the parties to the document were aware that certain rights in the property have accrued to Shanti Devi and she was transferring those rights to Matadin.

In our view, therefore, apart from the nomenclature of the document, the parties clearly intended to transfer Shanti Devi's interest in the preemptional land to Matadin. This is, therefore, not a case of a transfer of a mere decree with the property remaining vested in title in the pre-emptor. The case stands squarely covered by the dictum of Mahmood, J. in Ram Sahai's case (supra). · Order 21 rule 16 next provides that where a decree or the interest of a decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it, and the decree may be executed as if the application were made by the decree-holder.

The newly added Explanation to the said rule makes ii clear that the rule shall not affect the provisions in Section 146 of the Code nor shall it affect a transferee of rights in property, which is the subject matter of the suit, from applying for execution of the decree without there being a separate assignment of the decree. In the present case the document clearly shows that Matadin had to implead himself in place of the decreeholder as a party to the pending execution proceedings and then seek possession of the pre-emptional property. Matadin was substituted in place of the decree-holder after notice to the Judgment-debtor. He was, therefore, entitled to execute the decree. On a conjoint reading of the aforesaid provisions of the Code, it seems clear to us that Madadin was entitled in law to execute the decree transferred to him and obtain possession of the land from the Judgment-debtor. In Jugal Kishore Sarai v. Ram Cotton Co. Ltd.

, [1955] SCR 1369 (AIR 1955 SC 376) this Court held that a person who claims benefit under a decree by reason of its transfer can apply under Section 146 and failing that under Order 21 Rule 16 Cl'C. In Zita Singh, (supra) this Court while disagreeing with the 111ajotity view of Punjab & Haryana High Court in Hazari's case (supra) held that a transferee of the pre-emptor's right in the land which ·has vested in him by virtue of Order 20 rule . 14 on compliance of the requirement of payment of the purchase money by the specified date, can maintain an application for execution under Section 146, or Order 21rule16, CPC. In other words it was said that if the transferee of the decree cannot avail of the latter provision he can certainly resort to the former. For the reasons set out above we see no merit in this appeal and • dismiss the same with costs. Y. Lal Appeal dismissed.