Supreme Court clarifies the effect of partition on pre-emption rights: Jhabbar Singh vs. Jagtar Singh (2023)

Date of the Judgment: 17 April 2023

Citation: 2023 INSC 348

Judges: Justice Ajay Rastogi and Justice Bela M. Trivedi

Can a co-sharer’s right to pre-empt a sale of land be defeated if the joint status of the land is partitioned during the pendency of the pre-emption suit? The Supreme Court of India recently addressed this question, clarifying the interplay between partition proceedings under the Punjab Land Revenue Act, 1887 and pre-emption rights under the Punjab Pre-emption Act, 1913. The Court examined whether the right to pre-empt must subsist not only on the date of sale and the date of filing the suit but also on the date of the decree by the trial court. This judgment, authored by Justice Bela M. Trivedi, provides a crucial understanding of how partition proceedings impact pre-emption rights.

Case Background

The case involves a dispute over land in Punjab. Jit Singh, the original owner, sold portions of his land to Jhabbar Singh and others through two registered sale deeds, one on April 7, 1980, for 12 bighas (240/819th share) for Rs. 46,500 and another on April 24, 1980, for 10 bighas 18 biswas (218/819th share) for Rs. 42,500. Jagtar Singh, claiming to be a co-sharer in the joint land, filed two civil suits on April 6, 1981, seeking possession of the land, asserting his superior right to pre-empt the sales as he was not given notice of the sale by Jit Singh. Jhabbar Singh and others contested Jagtar Singh’s claim. During the pendency of these suits, Jhabbar Singh initiated partition proceedings before the Assistant Collector, which resulted in the partition of the joint land.

Timeline

Course of Proceedings

The trial court dismissed Jagtar Singh’s suits, holding that the joint status of the land had ceased to exist due to the partition order dated July 31, 1982, and thus, Jagtar Singh no longer had the status of a co-sharer. The First Appellate Court upheld this decision. However, the High Court reversed these decisions, stating that since no formal instrument of partition was drawn by the Revenue Officer, the joint status of the parties had not ended, and Jagtar Singh’s pre-emption right remained valid. The High Court relied on its earlier judgment in Pritam Singh vs. Jaskaur Singh. This led to the appeals before the Supreme Court.

Legal Framework

The Supreme Court considered the following legal provisions:

• Section 4 of the Punjab Pre-emption Act, 1913: Defines pre-emption as the right to acquire land or property in preference to others in the case of sales or foreclosures. “The right of pre-emption shall mean the right of a person to acquire agricultural land or village immoveable property or urban immoveable property in preference to other persons, and it arises in respect of such land only in the case of sales and in respect of such property only in the case of -sales or of foreclosures of the right to redeem such property.”
• Section 15 of the Punjab Pre-emption Act, 1913: Specifies the persons in whom the right of pre-emption vests, including co-sharers in joint land. “The right of pre -emption in respect of agricultural land and village immovable property shall vest – … (b) Where the sale is of a share out of joint land or property and is not made by all the co -sharers jointly, – First, in the sons or daughters or sons’ sons or daughters’ sons of the vendor or vendors; Secondly, in the brothers or brother’s sons of the vendor or vendors; Thirdly, in the father ’s brother or father ’s brother ’s sons of the vendor or vendor ’s; Fourthly, in the other co -shares;”
• Section 121 of the Punjab Land Revenue Act, 1887: States that when a partition is completed, the Revenue Officer shall prepare an instrument of partition and record the date on which the partition takes effect. “When a partition is completed, the Revenue -officer shall cause an instrument of partition to be prepared, and the date on which the partition is to take effect to be recorded therein.”
• Section 118 of the Punjab Land Revenue Act, 1887: Pertains to the disposal of questions regarding property to be divided or the mode of partition. “When there is a question as to the property to be divided, or the mode of making a partition, the Revenue -officer shall, after, such injury as he deems necessary, record an order stating his decision on the question and his reasons for the decision.”

Arguments

Appellants’ (Jhabbar Singh and others) Arguments:

• The partition was completed when the Assistant Collector passed the order accepting the “Naksha Be” on July 31, 1982, and the objections of the respondent were rejected on May 25, 1982.
• The preparation of the instrument of partition under Section 121 of the Punjab Land Revenue Act is a ministerial act.
• The right of pre-emption, being a weak right, must exist not only on the date of filing the suit but also on the date of the decree.
• They relied on Har Devi vs. Ram Jas, Lala Ram vs. The Financial Commissioner, Haryana, Pritam Singh Vs. Jaskaur Singh, and Munshi vs. The Financial Commissioner, Haryana, Chandigarh.

Respondent’s (Jagtar Singh) Arguments:

• The partition comes into effect only on the date notified by the Assistant Collector in the instrument of partition as per Section 121 of the Punjab Land Revenue Act.
• The partition and severance of co-sharer status can only be notified as per Section 121 of the Punjab Land Revenue Act and Clauses 18.12 to 18.14 of the Haryana Land Records Manual, 2013.
• The right of pre-emption is a right of substitution and not a right of re-purchase, as held in Bishan Singh & Others vs. Khazan Singh & Another.

[TABLE] of Submissions

Issues Framed by the Supreme Court

The Supreme Court considered the following issue:

1. Whether the plaintiff Jagtar Singh had the right to pre-empt on the date of passing of the decree by the trial court i.e. on 01.12.1982.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Cases:

Statutes:

• Punjab Pre-emption Act, 1913: Sections 4, 15, 19, 20, and 21.
• Punjab Land Revenue Act, 1887: Sections 111, 113-120, 118, 121, and 123.
• Code of Civil Procedure: Order I, Rules 9 and 10; Order VI, Rule 2(1); Order XX, Rule 18.

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Court relied on Har Devi vs. Ram Jas, Lala Ram vs. The Financial Commissioner, Haryana, Pritam Singh Vs. Jaskaur Singh, and Munshi vs. The Financial Commissioner, Haryana, Chandigarh to emphasize that the right of pre-emption must subsist until the date of the decree.
• The Court distinguished the judgment in Pritam Singh vs. Jaskaur Singh, which was relied upon by the High Court.
• The Court cited Bishan Singh & Others vs. Khazan Singh & Another to reiterate that the right of pre-emption is a right of substitution.
• The Court referred to U.P. Awas Evam Vikas Parishad vs. Gyan Devi to discuss the necessity of proper parties.
• The Court cited Barasat Eye Hospital vs. Kaustabh Mondal and Raghunath (Dead) by LRs. vs. Radha Mohan (Dead) Through LRs. And Others to highlight the weak nature of the right of pre-emption.
• The Court approved the principle in Bhagwan Das (Dead) by LRS and Others vs. Chet Ram and Ram ji Lal and Another vs. The State of Punjab and Others that a pre-emptor must maintain their qualification to pre-empt up to the date of the decree.
• The Court analyzed Shyam Sunder and Others vs. Ram Kumar and Another to clarify the conditions for a valid pre-emption claim.
• The Court used Shub Karan Bubna Alias Shub Karan Prasad Bubna v. Sita Saran Bubna and Others to draw an analogy between partition proceedings under the Punjab Land Revenue Act and partition decrees under Order XX, Rule 18 of the Code of Civil Procedure.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the interpretation of Section 121 of the Punjab Land Revenue Act, 1887, and the nature of the right of pre-emption. The Court emphasized that the right of pre-emption is a weak right that must subsist not only on the date of sale and the date of filing the suit but also on the date of the decree by the first court. The Court held that the partition is completed when the Revenue Officer makes a decision on the mode of partition and that the preparation of the instrument of partition is a subsequent ministerial act. The Court was also influenced by the fact that the objections of Jagtar Singh to the mode of partition were rejected on 25.05.1982 and the order was passed on 31.07.1982, which was upheld by the Collector on 12.10.1982. The Court was also influenced by the fact that the stay granted by the Commissioner on 19.10.1982 was not extended.

Sentiment Analysis of Reasons Given by the Supreme Court:

Ratio: Fact:Law

Logical Reasoning:

The Court considered the argument that the partition was not complete until the instrument of partition was prepared but rejected it, stating that the partition was completed when the Revenue Officer made the decision on the mode of partition. The Court also considered the argument that the right of pre-emption is a right of substitution but emphasized that the right must subsist on the date of the decree. The final decision was reached by interpreting Section 121 of the Punjab Land Revenue Act, 1887, and applying the principle that the right of pre-emption is a weak right that must subsist until the date of the decree.

The Court’s reasoning was based on the following points:

• The partition is deemed complete when the Revenue Officer decides on the mode of partition.
• The instrument of partition is a ministerial act that follows the completion of the partition.
• The right of pre-emption must subsist until the date of the decree by the first court.
• The joint status of the parties was severed when the Assistant Collector accepted the “Naksha Be” on 31.07.1982.

The Court, therefore, concluded that since Jagtar Singh’s status as a co-sharer had ceased to exist before the decree was passed, he could not claim the right of pre-emption.

Key Takeaways

• The right of pre-emption, being a weak right, must subsist not only on the date of sale and the date of filing the suit but also on the date of the decree by the first court.
• Partition of land is considered complete when the Revenue Officer decides on the mode of partition, and the preparation of the instrument of partition is a subsequent ministerial act.
• A co-sharer’s right to pre-empt can be extinguished if the joint status of the land is severed through partition proceedings before the final decree in the pre-emption suit.
• This judgment clarifies the interpretation of Section 121 of the Punjab Land Revenue Act, 1887, and its impact on pre-emption rights under the Punjab Pre-emption Act, 1913.

Directions

No specific directions were given by the Supreme Court.

Development of Law

The ratio decidendi of this case is that the right of pre-emption must subsist until the date of the decree by the first court, and the partition of land is considered complete when the Revenue Officer decides on the mode of partition. This judgment clarifies the interpretation of Section 121 of the Punjab Land Revenue Act, 1887, and its impact on pre-emption rights under the Punjab Pre-emption Act, 1913. There is no change in the previous positions of law, but the Court has emphasized the importance of the right of pre-emption subsisting until the date of the decree.

Conclusion

The Supreme Court allowed the appeals, setting aside the High Court’s judgment. The Court held that the partition was completed when the Assistant Collector accepted the “Naksha Be” on July 31, 1982, and the joint status of the parties was severed on that date. Therefore, the plaintiff, Jagtar Singh, did not possess the status of a co-sharer on the date of the decree and his right of pre-emption did not survive till the date of passing of the decree in the suits. This judgment clarifies the interplay between partition proceedings and pre-emption rights, emphasizing that the right of pre-emption must subsist until the date of the decree by the first court. The High Court’s judgment was overruled.