AIR 1960 SUPREME COURT 1368 ::1960 MPLJ 1124 ::1960 JabLJ 1123

Supreme Court Of India

(From Nagpur - AIR 1953 Nag. 182)

Hon'ble Judge(s): B. P. Sinha, J. L. Kapur, P. B. Gajendragadkar, K. Subba Rao, K. N. Wanchoo , JJJ

C.P. and Berar Land Revenue Code (1928) , S.176— Sale giving rise to right of pre-emption - Essentials - Parties entering into only agreement to sell - Suit for pre-emption not maintainable - Defeating right of pre-emption is no fraud. Transfer of Property Act (4 of 1882) , S.2, S.54— AIR 1953 Nag 182, reversed. The transfer of property where the Transfer of Property Act applies has to be under the provisions of the Transfer of Property Act only the Mohammedan Law of transfer of property cannot override that statute law. AIR 1923 PC 41 and ILR 35 Cal 575, Dist. Case law referred to.(Para 10) Under S. 54 of the Transfer of Property Act a contract for sale does not of itself create any interest in or charge on immovable property. Where, therefore, the parties enter into a mere agreement to sell, it creates no interest in favour of the vendee and the proprietary title does not validly pass from the vendors to the vendee and until that is completed no right to enforce pre-emption arises. A suit for pre-emption brought on the basis of such an agreement is without any cause of action as there is no right of pre-emption in the plaintiff which could be enforced under the Code.(Para 11 14) There are no equities in favour of a pre-emptor, whose sole object is to disturb a....