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CASE NO.: Appeal (civil)  3842 of 2000

PETITIONER: Chandrika Singh

RESPONDENT: Arvind Kumar Singh (dead) by LRs. & Ors.

DATE OF JUDGMENT: 12/05/2006

BENCH: Arijit Pasayat & Tarun Chatterjee

JUDGMENT: J U D G M E N T

TARUN 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, district  East Champaran and Plot No. 25 measuring 1 dhurs in village Sarotar  in the State of Bihar (hereinafter referred to as the "lands in question")  executed a sale deed on 10th 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/-. 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 Land) Act, 1961 (in short "the Act") claiming  to be  a raiyat 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  12th October 1983.  However, this sale deed was registered on 31st of  August, 1984. According to Paras Sah, since he had 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 transaction and no consideration had passed. It was also pleaded  that, in view of the admitted fact that Smt. Ghurla Kuer was an  issueless 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 of  law. Chandrika Singh also pleaded that the abnormal jump in the sale  price to the extent of 4 times,  in just two months, 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  Collector after hearing the parties and after considering the facts on  record 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 deed as Section 16(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

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pre-emptor, Chandrika Singh, was rayiat of adjoining lands. However,  after considering the evidence on record, the Deputy Collector found  Chandrika Singh to be a raiyat of adjoining lands to the lands in  question. Accordingly, the Deputy Collector, accepting the submissions  of Chandrika Singh, allowed the pre-emption application.         Feeling aggrieved, Paras Sah filed an appeal before the Collector. It  may be noted that Paras Sah did not appear before the collector to  proceed with the appeal. The Collector by a judgment and order dated  6th November, 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  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 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.  10 months prior to the filing of the pre-emption application and  since there is no other evidence, it cannot be presumed that the  second sale deed which was executed on 12/10/1983 was to  defeat any pre-emption when there was no pre-emption  application pending on that date. 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.         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:   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 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  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  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 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.            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:

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" 16. Restriction on future acquisition by transfer, etc. \026          (1)     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 the aggregate the ceiling area.

       Explanation :- For the purposes of this section  ’transfer’ does not include inheritance, bequest or  gift.

(2)     (i) After the commencement of this Act, no  document incorporating 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 (XVI of 1908), as to  the total area of land held by him by himself or  through any other person anywhere in the 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 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 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.              (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, within three months of the date of  registration of the 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 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 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

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co-sharer or the raiyat, as the case may be, shall  be evicted from the land 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).

(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 executing 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 of 1908), shall be, so far as may  be, followed."                          [Emphasis Supplied]                          Section 16 is included in Chapter V of the Act.  Sub-section  (1) of 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 16 says that no document incorporating 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,  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 (1) of Sec.16.  Sub-section (2) (iii) of Section 16 clearly  provides that no land shall be transferred without the document  registered in accordance with the provisions of the Indian  Registration Act, 1908. From a plain reading of Section 16(3) of the  Act, it is clear that an application for pre-emption can be allowed if  any transfer of land 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 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) of the Act.  The only ground on which the application for pre-emption was  challenged by Paras Sah, which also found favour with 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 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 of Smt. Ghurla Kuer.                 As noted herein before, the first sale deed was executed on  10th of August, 1983 in favour of Paras Sah, which was registered on  14th of June, 1984. Therefore, it cannot be disputed that the sale

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deed registered on 14th of June, 1984 could be pre-empted only  within three months from 14th of 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 Section 16(3) of the Act, was filed by the  appellant, on 17th of July, 1984. Further, under 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 it is  clear that a pre-emptor can only be permitted 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 vs. Shridhar  [(1961 )1 SCR 248], this Court held that where a statute provides  for  a right of pre-emption, it will accrue only 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  vs. MST. Domini Kuer [(1962 ) 2 SCR 474].   Further, in Hiralal  Agrawal vs. Rampadarath Singh & Ors. [AIR 1969 SC 244],  Shelat,  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 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. 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 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 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, Paras Sah.                    Before we part with this judgment, we may also keep it in  mind that 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 are set aside.  The appeal is allowed. Accordingly, the  application for pre-emption is allowed. There will be no order as to  costs.

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