KRISHNA DASS AGARWAL Vs. KANHAIYALAL

JUDGEMENT

(1.) Leave granted. Heard the counsel for the parties.

(2.) This appeal is preferred against the judgment of the learned single Judge of the Madhya Pradesh High Court dismissing the second appeal preferred by the appellant-plaintiff herein.

(3.) On December 5, 1960, the respondent, Kanhaiyalal, purchased the suit-house from Ram Chander and others under a sale deed, which was registered on December 10, 1960, for a consideration of Rupees eight thousand. On December 5, 1961, the appellant-plaintiff instituted a suit seeking to enforce his right of pre-emption on two grounds, viz., (1) an agreement said to have been executed by Nath Mal, father of Ram Chander agreeing to give the plaintiff the right of first purchase in the event of sale of the said house and (2) the Gwalior Pre-emption Act which created a right of pre-emption in favour of dominant-heritage holder vis-a-vis servient-heritage holder. The plaintiff also relied upon an alleged customary right of pre-emption. The defendant disputed the plaintiff's claim inter alia on the ground that the Gwalior Pre-emption Act is unconstitutional and is unenforceable with effect from the date of the commencement of the Constitution of India. The Trial Judge decreed the suit on July 31, 1967. The respondent, Kanhaiyalal, preferred an appeal which was allowed by the learned District Judge. The grounds on which the learned District Judge allowed the appeal are:(i) inasmuch as the Gwalior Pre-emption Act has been repealed pending the said appeal (i.e., on June 28, 1968), the right of pre-emption claimed by the plaintiff can no longer be enforced. The plaintiff cannot also fall back upon customary right of pre-emption inasmuch as the said right came to an end with the enactment of the Gwalior Pre-emption Act in Samvat 1992. The said custom does not and cannot revive on the repeal of the said enactment. (ii) The alleged agreement of pre-emption offended the rule of perpetuity and because the respondent, Kanhaiyalal, was a bona fide purchaser of value without notice of the said agreement, cannot be enforced against him. The learned District Judge, however, declined to record any finding on the plaintiff's assertion that he is a dominant-heritage holder. The High Court dismissed the second appeal agreeing with the learned District Judge on the effect of repeal of the Gwalior Act pending the appeal. It relied mainly on the language employed in Section 23 of the Gwalior Pre-emption Act for arriving at the said conclusion. The High Court also took the view that Section 10 of the Madhya Pradesh General Clauses Act does not come to the rescue of the plaintiff. The correctness of the view taken by the High Court is challenged in this appeal.