PRE-EMPTION: FUTURE DOMAIN DOCTRINE - Indian Laws - General

Interpretation of PRE-EMPTION: FUTURE DOMAIN DOCTRINE- As per Krishna Kumar Birla vs Rajendra Singh Lodha and ors.- 2008 (3) TMI 741 - SUPREME COURT- A right to claim pre - emption is not a right in the estate. It creates an interest in the property. It does not create an interest in succession. If such a right has been created by an agreement, the same can be enforced only in the event any contingency in that behalf takes place. A Will is not a transfer for enforcement of a right of pre - emption under a contract. It must be enforced by a suit. On the right of pre - emption based on consanguinity being unconstitutional, we may notice the decision of this Court in Atam Prakash v. State of Haryana and Ors.- 1986 (2) TMI 338 - SUPREME COURT , wherein while striking down Section 15(1)(a) of the Punjab Pre - emption Act, 1913 as being ultra vires of Article 14 of the Constitution it was opined at Paragraph 2: The right of pre - emption based on consanguinity has been variously described by learned judges as 'feudal', 'piratical', 'tribal', 'weak', 'easily defeated', etc. [Ralwa v. Vaaakha Singh A.I.R. 1983 Punjab Haryana 480 (F.B.) at 490 and Bishan Singh v. Khazan Singh- 1958 (5) TMI 52 - SUPREME COURT, Fusing as it does the ties of blood and soil, it cannot be doubted that the right is antiquated and feudal in origin and in character. It was thus held: We are thus unable to find any justification for the classification contained in Section 15 of the Punjab Pre - emption Act of the kinsfolk entitled to pre - emption. The right of pre - emption based on consanguinity is a relied of the feudal past. It is totally inconsistent with the Constitutional scheme. It is inconsistent with modern ideas. The reasons which justified its recognition quarter of a century ago, namely, the preservation of the integrity of rural society, the unity of family life and the agnatic theory of succession are today irrelevant. The list of kinsfolk mentioned as entitled to pre- emption is intrinsically defective and self- contradictory. There is, therefore, no reasonable classification and clauses 'First', 'Secondly', and 'Thirdly' of Section 15(1)(a), 'First', 'Secondly' and 'Thirdly', of Section 15(1)(b), Clauses 'First', 'Secondly' and 'thirdly' of Section 15(1)(C) and the whole of Section 15(2) are, therefore, declared ultra vires the Constitution. Nature of the right of pre-emption- In Barasat Eye Hospital and Ors. v. Kaustabh Mondal- 2019 (10) TMI 1560 - SUPREME COURT . The said judgment, authored by one of us (Sanjay Kishan Kaul, J.), in its initial paragraph itself discusses this aspect and it would suffice to quote the same. 1. The right of pre - emption holds its origination to the advent of the Mohammedan rule, based on customs which came to be accepted in various courts largely located in the north of India. This law is stated to be largely absent in the south of India on account of the fact that it never formed a part of Hindu law in respect of property. However, this law came to be incorporated in various statutes, both, prior to the Constitution of India ('the Constitution') coming into force, and even post that. Bhau Ram v. Baij Nath Singh- 1962 (3) TMI 132 - SUPREME COURT. The constitutional validity of such laws of pre - emption came to be debated before the Constitution Bench of this Court , in Bhau Ram, supra . There are different views expressed by the members of the Constitution Bench of five Judges, and also dependent on the various State legislations in this regard. Even though there were views expressed that this right of pre-emption is opposed to the principles of justice, equity and good conscience, it was felt that the reasonableness of these statutes has to be appreciated in the context of a society where there were certain privileged classes holding land and, thus, there may have been utility in allowing persons to prevent a stranger from acquiring property in an area which has been populated by a particular fraternity or class of people. This aspect was sought to be balanced with the constitutional scheme, prohibiting discrimination against citizens on the grounds of only religion, race, caste, sex, place of birth or any of them, Under Article 15 of the Constitution, and the guarantees given to every citizen to acquire, hold and dispose of property, subject only to the test of reasonable restriction and the interest of general public.