Supreme Court of India
CHANDRIKA SINGH (DEAD) THR. L.RS.versusARVIND KUMAR SINGH (DEAD) BY L.RS. AND ORS.
- Citation
- 2006 INSC 321
- Decided
- 12 May 2006
- Disposal
- Appeal(s) allowed
- Bench
- ARIJIT PASAYAT
Holding
A pre‑emption application under Section 16(3) is maintainable only after the transfer deed is fully registered; thus, an application filed within three months of that registration is valid even if a later sale deed has been executed but not yet registered.
Summary
Arvind Kumar Singh sold land to Paras Sah, whose deed was registered on 14 June 1984. Paras Sah then executed a second sale deed in favour of Ghurla Kuer, which was not registered until 31 August 1984. Chandrika Singh, a raiyat of adjoining lands, filed a pre‑emption application on 17 July 1984 under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, within three months of the registration of the first deed. The Deputy Collector allowed the application, but the Collector, Board of Revenue and the High Court set it aside, holding that the second sale rendered the pre‑emption invalid. The Supreme Court held that the right to file a pre‑emption accrues only when the transfer deed is fully registered; since the second deed was not registered at the time of filing, the pre‑emption was valid, and the High Court’s order was set aside. The Court therefore allowed the appeal and upheld the pre‑emption.
Issues considered
- The date on which the right to file a pre‑emption application under Section 16(3) of the Bihar Land Reforms Act accrues.
- Whether a subsequent sale deed executed before registration of the first deed defeats the pre‑emptor's right.
- Whether the pre‑emption application could be maintained against the first transferee when the second deed was unregistered.
- Whether the High Court was justified in entertaining the writ petition of the second purchaser who was not a party to earlier proceedings.
Legislation cited
Subjects
pre‑emptionland reformsregistration of sale deedceiling areaBihar Land Reforms Actsection 16(3)right of pre‑emptorsham transactionlimitation period
Judgment
- CHANDRIKA SINGH (DEAD) THR. L.RS.
v.
ARVIND KUMAR SINGH (DEAD) BY L.RS. AND ORS.
A
MAY 12, 2006
B
[ARIJIT PASAYAT AND TARUN CHATTERJEE, JJ.]
Pre-emption:
Bihar Land Reforms (Fixation ofCeiling Area and Acquisition ofSurplus
Land) Act, 1961-ss. 16(2) and (3)-Sale deed-Execution of-Right to file
c
pre-emption application-Held : Accrues only when the registration of the
sale deed is complete-Land Reforms-Registration Act, 1960-s.60.
The respondent original owner of lands in question executed a sale
deed on 10th August, 1983 transferring the same in favour of 'P' for D
Rs.1000. On 12th October, 1983, P executed a sale deed in respect of
lands in question in favour of one 'G' for Rs.4000/-. The first sale deed
was got registered on 14th June, 1984 and the second sale deed was
registered on 31.8.1984. On 17th July, 1984, Appellant claiming to be
a raiyat of adjoining lands filed application against 'P' for pre-emption E
before Deputy Collector u/s.16(3) of Bihar Land Reforms (Fixation of
Ceiling Area and Acquisition of Surplus Land) Act, 1961.
Deputy Collector allowed the pre-emption application holding that
the sale deed to 'G' was a sham transaction and it was only executed to
defeat pre-emption under the Act. Feeling aggrieved, 'P' filed an appeal
F
before the Collector. He made 'G', respondent for the first time. However,
he did not appear and his appeal was dismissed in default.
Feeling aggrieved by the order of the Collector, 'P' filed a petition
u/s.32 before the Board of Revenue which was also rejected. Then 'G', G
second purchaser and relative of 'P', successfully filed Writ application
before High Court challenging the orders by tribunals below. Division
Bench of High Court affirmed the order of Single Judge. The
pre-emptor, feeling aggrieved by orders of High Court, filed present
appeal. H
341
342 SUPREME COURT REPORTS (2006] SUPP. 2 S.C.R.
A Allowing the appeal, the Court
...
HELD : I. The first sale deed was registered on 14th of June, 1984,
therefore, it could be pre-empted only within three months from 14th of
June, 1984. Admittedly, in this case, the application for pre-emption was
B filed on 17th of July, 1984 i.e. well within the limitation period of 3
months. At the same time, it is also not in dispute that the second sale
deed, which was executed by 'P' in favour of 'G' for a consideration of
Rs.4000/- was registered on 31st of August, 1984, that is, after the
registration of the first sale deed and after the pre-emption application.
Further, under s.16(2) of the Bihar Land Reforms (Fixation of Ceiling
c Area and Acquisition of Surplus Land) Act, 1961 a sale is complete only
when the document of transfer is registered and unless the registration
is complete under s.60 of the Registration Act, the transfer of the land
in question would still be inchoate. S. 16(3) says that a pre-emptor can
only be permitted to file the pre-emption application within 3 months
D from the date of registration of transfer deed. Therefore, the right to
file the pre-emption application under s.16(3) of the Act accrues only
when the re~istration of the document is completed. 1349-F-H, 350-AI
Radhakisan L. Toshniwal v. Shridhar. 11961 I 1 SCR 248; Ram Saran
F Lallv. MST Domini Kuer, (196212SCR17; Hiralal Agrawalv. Rampadarath
Singh and Ors., AIR (1969) SC 244, referred to.
2. The right of re-convevance accrues to the pre-emptor only on the
date of the completion of the registration of the transfer deed and an
F application for pre-emption under s.16(3) of the Act filed before such
date would be pre-mature. Therefore, the pre-emptor was entitled to file
the pre-emption application against 'P', only after the first sale deed was
registere'1on14th June 1984 and not before that date. It is clear that the
registration of the sale deed executed in favour of 'G' by 'P' was not
G complete and effective, for want of registration, when the application for
pre-emption was filed against 'P'. Accordingly, there is no reason to hold
that the application for pre-emption, filed by appellant could not be
maintained against 'P', the first transferee. For the reasons aforesaid, it
would not be necessary to go into the question whether the second sale
was a sham transaction or not. 1350-D-FI
H
CHANDRIKA SINGH v. ARVIND KUfyiAR SINGH [CHATTERJEE, J.] 343
3. A sale deed executed by 'P' in favour of 'G' prior to the registration A
of the first sale deed, cannot negate the right of the pre-emptor to proceed
against 'P' under s.16(3) of the Act as, it is an admitted position in this
case that the second sale deed was not registered at the time the pre-
emption application against the first transferee, 'P'. 1350-G-H)
4. It is also noted that the writ petition at the instance of the 'G'
B
ought not to have been entertained by the High Court when, admittedly,
'G' was not party to the proceedings before the Deputy Collector and she
did not file any appeal or revision either before the Collector or Board
of Revenue. (351-AJ
c
CIVIL APPELLATE JURISDICTION Civil Appeal No. 3842 of
2000.
From the Final Judgment and Order dated. 9.9.1999 of High Court of
Judicature at Patna in L.P.A. NO. 943/1998.
D
S.K. Sinha and Prakash Kumar, Advs. for the Appellants.
Gopal Singh, Nishakanth Pandey and B.B. Singh, Advs. for the
Respondents.
E
The Judgment of the Court was delivered by
TAR UN CHATTERJEE, J. : One Shri Arvind Kumar Singh, who was
the admitted owner of the lands namely, Plot No. 2628 measuring 10 dhurs,
Plot No. 2679 measuring 17 dhurs in village Bhatwaliya, P.S. Gobindganj, F
district East Champaran and Plot No. 25 measuring I dhurs in village Sarotar
in the State of Bihar (hereinafter referred to as the "lands in question")
executed a sale deed on I 0th of August, 1983, transferring the same in
favour of one Shri Paras Sah for a consideration of Rs.1000. On 12th of
October, 1983 Paras Sah executed a sale deed in respect of the lands in
question in favour of one Smt. Ghurla Kuer for a consideration of Rs.4000/ G
-. The sale deed executed by Arvind Kumar Singh in favour of Mr.Paras Sah
on 10th of August, 1983 was registered on 14th of June, 1984. On 17th of
July 1984, an application for pre-emption was filed before the Deputy
Collector by one Chandrika Singh against Paras Sah under Section 16(3) of
the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus H
344 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.
A Land) Act. 1961 (in shon '"the Act") claiming to be a ruiyat of adjoining
lands of the lands in question. Paras Sah had filed his written objection to
the application for pre-emption on 9th of August, 1984 in which he alleged
that the lands in question had already been transferred in favour of Ghurla
Kuer vide Sale Deed dated 1:!th October 1983 However, this sale deed was
registered on 31st of August. 1984. According to Paras Sah, since he had
B transferred the property in the name of Ghurla Kuer, the application for pre-
emption could not be maintained against him
Before the Deputy Collector, Chandrika Singh pleaded that the sale
deed executed by Paras Sah in favour of Smt. Ghurla Kuer was a sham
c transaction and no consideration had passed. It was also pleaded that. in view
of the admitted fact that Smt. Ghurla Kuer was an issue less widow and own
aunt of Paras Sah and also belonged to the same joint family, it must be held
that the sale deed was executed only for the purpose of avoiding pre-emption
and to defeat the provisions uf law. Chandrika Singh also pleaded that the
abnormal jump in the sale price to the extent of 4 times, in just two months,
D
had shown that the second transaction was sham in nature. It was also alleged
that the possession of the lands in question was never transferred to Smt.
Ghurla Kuer the second purchaser, and that there was no necessity to
implead Smt. Ghurla Kuer in the pre-emption application. The Deputy
\olkc:tor alkr hearing the panies and after considering the facts on record
F allowed the pre-emption application of Chandrika Singh, appellant herein,
holding that the sale to Smt Ghurla Kuer was a sham transaction and it was
only executed to defeat pre-emption under the Act. It was also held that the
pre-emptor. Chandrika Singh, could not have maintained the pre-emption
application under Section 16(3) of the Act before registration of the first sale
F deed as Section I6(3) of the Act clearly provides that the pre-emption
application can only be filed within three months from the date of registration
of the document of transfer. In his written objection, Paras Sah had also
denied that the pre-emptor, Chandrika Singh, was rayiat of adjoining lands.
Howeva, after considering the evidence on record, the Deputy Collector
found Chandrika Singh to be a ruiyut of adjoining lands to the lands in
G question. Accordingly, the Deputy Collector, accepting the submissions of
Chandrika Singh, allowed the pre-emption application.
Feding aggrieved, Paras Sah filed an appeal before the Collector. It
ma} be nuted that Paras Sah did not appear before the collector to proceed
H
CHANDRIKA SINGH v. ARYIND KUMAR SINGH [CHATTERJEE, J.] 345
with the appeal. The Collector by a judgment and order dated 6th November, A
1984 dismissed the appeal only on the ground that Paras Sah, who was
appellant in that appeal, had no interest to proceed with the same. It may
also be noted that in appeal, Paras Sah had made Ghurla Kuer a respondent
for the first time.
Feeling aggrieved by the order of the Collector, Paras Sah filed a B
petition under Section 32 of the Act before the Board of Revenue which was
also rejected.
Then Smt. Ghurla Kuer, the second purchaser and a relative of Paras
Sah, filed a Writ application before the High Court at Patna, praying for c
setting aside the orders passed by the tribunals below. The Writ Court,
however, allowed the Writ application and set aside the order of pre-emption
by holding, in substance, as under:
A. Since the subsequent sale deed was executed on 12/10/1983, i.e.
I 0 months prior to the filing of the pre-emption application and
D
since there is no other evidence, it cannot be presumed that the
second sale deed which was executed on 12110/1983 was to defeat
any pre-emption when there was no pre-emption application
pending on that date.
E
B. In the light of the above, the land must be re-conveyed to the Writ
Petitioner.
It may be noted herein that Smt. Ghurla Kuer died issueless leaving
Paras Sah as the only legal heir and representative.
F
Feeling aggrieved by the order passed by learned Single Judge,
allowing the Writ application and rejecting the application for pre-emption,
Chandrika Singh filed an appeal against Paras Sah and others. The Division
Bench by its judgment dated 9th September, 1999, affirmed the order of the
learned Single Judge holding, in substance, as under: G
A. In support of the contention of the pre-emptor that the second sale
deed was a sham transaction, the only material that was produced
was the ration card to show that the first and the second purchasers
were members of the same joint family. No other evidence was H
346 SUPREME COURT REPORTS [2006] SUPP. 2 S.CR
A adduced by the pre-emptor to show that the second sale deed was
a sham transaction and that the sale consideration was not paid
and also that Smt. Ghurla Kuer, the second purchaser, had not got
the possession of the lands in question.
B. That the onus was on the pre-emptor to prove that the second sale
B deed was executed only for the purpose of avoiding pre-emption
and to defeat the provisions of the Act and that it was a sham
transaction, which pre-emptor had failed to prove.
C. On the basis of the above, the order of the learned single Judge
c need not be interfered with and the appeal is dismissed.
At this stage, we may also point out that before the Deputy Collector,
Collector and Board of Revenue, Smt. Ghurla Kuer did not challenge the
order of pre-emption. As noted herein earlier, Smt. Ghurla Kuer for the first
time challenged the orders of the Deputy Collector, Collector and Board of
D Revenue, by filing a Writ application in the High Court
Chandrika Singh, the pre-emptor, feeling aggrieved by the orders of the
High Court of Patna, filed a special leave petition before this Court, which
was heard by us on grant of leave, in the presence of the learned counsel
for both the parties.
E
Before we proceed further, it would be appropriate to produce
Section 16 of the Act, which is as under : Section 16 of the Act reads as
under:
F "16. Restriction on fature acquisition by transfer, etc.
(I) No person shall, after the commencement of this Act, either
by himself or through any other person, acquire or possess by
transfer, exchange, lease, mortgage, agreement or settlement
any land which together with the land, if any, already held by
G him exceeds in the aggregate the ceiling area.
Explanation:- For the purposes of this section 'transfer' does
not include inheritance, bequest or gift.
H (2) (i) After the commencement of this Act, no document
CHANDRIKA SINGH v. ARVIND KUMAR SINGH [CHATIERJEE, J.] 347
incorporating any transaction for acquisition or possession of A
any land by way of transfer, exchange, lease, mortgage,
agreement or settlement shall be registered, unless a declaration
in writing duly verified is made and filed by the transferee
before the registering authority under the Indian Registration
Act, 1908 (XVI of 1908), as to the total area of land held by
him by himself or through any other person anywhere in the
B
State.
(ii) No such registering authority shall register any document
evidencing any transaction if, from the declaration made under
clause (i), it appears that the transaction has been effected in c
contravention of the provisions of sub-section (1 ).
(iii) No land shall be transferred, exchanged, leased,
mortgaged, bequeathed or gifted without a document registered
in accordance with the provisions of the Indian Registration D
Act, 1908 (XVI of 1908).
Explanation:- Nothing in this sub-section shall be deemed to
have any effect on the provisions of the tenancy law of the area
relating to transfer, exchange, lease, mortgage, agreement or
settlement. E
(3) (i) When any transfer of land is made after the commencement
of this Act to any person other than a co-sharer or a raiyat of
adjoining land, any co-sharer of the transferor or any raiyat
holding land adjoining the land transferred, shall be entitled,
F
within three months of the date ofregistration ofthe document
of transfer, to make an application before the collector in the
prescribed manner for the transfer of the land to him on the
terms and conditions contained in the said deed:
Provided that no such application shall be entertained by the G
Collector unless the purchase-money together with a sum
equal to ten percent thereof is deposited in the prescribed
manner within the said period.
(ii) On such deposit being made the co-sharer or the raiyat H
348 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R
A shall be entitled to be put in possession of the land irrespective
of the fact that the application under clause (i) is pending for
decision :
Provided that where the application is rejected, the co-sharer
or the raiyat, as the case may be, shall be evicted from the land
B and possession thereof shall be restored to the transferee and
the transferee shall be entitled to be paid a sum equal to ten
percent of the purchase-money out of the deposit made under
clause (i).
c (iii) If the application is allowed, the Collector shall by an
order direct the transferee to convey the land in favour of the
applicant by ~xccuting and registering a document of transfer
within a period to be specified in the order and, if he neglects
or refuses to comply with the direction, the procedure prescribed
in order 21, rule 34 of the Code of Civil Procedure, 1908 (V
D of 1908), shall be, so far as may be, followed."
[Emphasis Supplied}
Section 16 is included in Chapter V of the Act. Sub-section (I) of
E Section 16 says that no person shall, after the commencement of this Act,
either by himself or through any other person, acquire or possess by transfer,
exchange, lease, mortgage. agreement or settlement any land which together
with the land, if any, already held by him exceeds in aggregate the ceiling
area. Sub-section (2)(i) of Section I 6 says that no document incorporating
F any transaction for acquisition or possession of any land by way of transfer,
exchange, lease, mortgage, agreement or settlement shall be registered,
unless a declaration in writing duly verified is made and filed by the
transferee before the registering authority under the Indian Registration Act,
1908, as to the total area of land held by him by himself or through any other
person anywhere in the State. Sub-section (2 )(i) of Section 16, therefore,
G prohibits registration of any land unless a declaration in the above manner
is filed before the registering authority. Sub-section (2) (ii) of Section 16 puts
an embargo on the registering authority from registering any document, if
it appears that the transaction has been made in contravention of sub-section
(I) of Sec.16. Sub-section (2) (iii) of Section 16 clearly provides thut nu
H fund shall be transferred without the document n:gistered in accordance
CHANDRIKA SINGH v. AR VIND KUMAR SINGH [CHA TIERJEE, J.] 349
with the provisions of the Indian Registration Act, 1908. From a plain A
reading of Section 16(3) of the Act, it is clear that an application for pre-
emption can be allowed if any transfer ofland is made, after the commencement
of the Act, to any person other than a co-sharer or a raiyat of adjoining land
and any such co-sharer or raiyat of adjoining land, as the case may be, shall
be entitled to ask for pre-emption within three months from the date of
registration of the document of transfer, by making an application. In the
B
case before us, no dispute was raised that the pre-emption application was
not filed within three months from .the date of registration of the sale deed
in favour of Paras Sah. Also, no contention was raised before us that the
appellant was not raiyat of adjoining lands, who can maintain the application
for pre-emption, with respect to the lands in question, under Section 16(3) C
of the Act. The only ground on which the application for pre-emption was
challenged by Paras Sah, which also found favour w.ith the High Court, was
that the pre-emption application filed by the appellant could not be said to
be maintainable against the first sale deed in view of the fact that the lands
in question were conveyed by him in favour of Smt. Ghurla Kuer prior to D
the filing of the pre-emption application.
We have heard the learned counsel appearing for the parties on the
question, whether the application for pre-emption was maintainable against
Paras Sah after the lands in question were conveyed in favour ofSmt. Ghurla
Kuer. E
As noted herein before, the first sale deed was executed on I 0th of
August, 1983 in favour of Paras Sah, which was registered on 14th of June,
1984. Therefore, it cannot be disputed that the sale deed registered on 14th
of June, 1984 could be pre-empted only within three months from 14th of p
June, 1984. Admittedly, in this case, the application for pre-emption was
filed on 17th of July, 1984 i.e. well within the limitation period of 3 months.
At the same time, it is also not in dispute that the second sale deed, which
was executed by Paras Sah in favour of Ghurla Kuer for a consideration of
Rs.4000/- was registered on 31st of August, 1984, that is, after the
registration of the first sale deed and after the pre-emption application, under G
Section 16(3) of the Act, was filed by the appellant, on 17th of July, 1984.
Further, un.der Section 16(2) of the Act, a sale is complete only when the
document of transfer is registered and unless the registration is complete
under section 60 of the Registration Act, the transfer of the land in question
would still be inchoate. From a plain reading of section 16(3) of the Act H
350 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.
A it is clear that a pre-emptor can only be pennitted to file the pre-emption
application within 3 months from the date of registration of transfer deed.
Therefore, the right to file the pre-emption application under section 16(3)
of the Act accrues only when the registration of the document is completed.
In Radhakisan L. Toshniwal v. Shridhar, [I 961] I SCR 248, this Court held
that where a statute provides for a right of pre-emption, it will accrue only
B when the transfer of the land takes place and such transfer is not complete
before the deed is registered. Accordingly, this Court held that an application
for pre-emption filed before the sale deed was registered, would be pre-
mature. This view was appreciated again by this Court in Ram Saran Lall
v. MST. Domini Kuer. [1962] 2 SCR 474. Further, in Hira/a/ Agrawal v.
c Rampadarath Singh & Ors., AIR (I 969) SC 244, She lat, J. (as his Lordship
then was), clearly observed that under section 16(2) and (3) of the Act, no
transfer takes place unless the deed is registered. Registration is complete
when the certificate under the provisions of the Registration Act is issued.
That being the position, we are of the view that the right of re-conveyance
D accrues to the pre-emptor only on the date of the completion of the
registration of the transfer deed and an application for pre-emption under
section 16(3) of the Act filed before such date would be pre-mature.
Therefore, we hold that the pre-emptor, Chandrika Singh, appellant herein,
was entitled to file the pre-emption application against Paras Sah, only after
the first sale deed was registered on 14th June 1984 and not before that date.
E
It is clear that the registration of the sale deed executed in favour of Smt.
Ghurla Kuer by Paras Sah was not complete and effective, for want of
registration, when the application for pre-emption was filed by Chandrika
Singh against Paras Sah. Accordingly, we do not find any reason to hold
that the application for pre-emption, filed by Chandrika Singh could not be
F maintained against Paras Sah, the first transferee.
For the reasons aforesaid, it would not be necessary for us to go into
the question whether the second sale was a sham transaction or not.
Accordingly, we have no hesitation in our mind to hold that a sale deed
G executed by Paras Sah in favour of Smt. Ghurla Kuer prior to the registration
of the first sale deed, cannot negate the right of the pre-emptor to proceed
against Paras Sah under section 16(3) of the Act as, it is an admitted position
in this case that the second sale deed was not registered at the time the pre-
emption application was filed by Chandrika Singh against the first transferee,
H Paras Sah.
CHANDRIKA SINGH v. ARVIND KUMAR SINGH [CHATIERJEE, J.] 351
Before we part with this judgment, we may also keep it in mind that A
the writ petition at the instance of the Smt. Ghurla Kuer ought not to have
been entertained by the High Court when, admittedly, Smt. Ghurla Kuer was
not party to the proceedings before the Deputy Collector and she did not file
any appeal or revision either before the Collector or Board of Revenue.
For the reasons aforesaid, the impugned judgments of the High Court B
are set aside. The appeal is allowed. Accordingly, the application for pre-
emption is allowed. There will be no order as to costs.
D.G. Appeal allowed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "pre‑emption"Sign in to search