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Right of pre-emption cannot be exercised till transfer has been effected; SC.

Supreme Court of India

Justice D Y Chandrachud & Justice Ajay Rastogi

The SC {Suresh Chand and Anr v. Suresh Chander (D) Thr LRs and Ors} holds that right of pre-emption is a preferential right to acquire the property by substituting the original vendee. The transfer or sale of an immovable property is a condition precedent to the enforceability of the right. The right of pre-emption is attached to the property and only on that footing can it be enforced against the vendee. Though the right is recognised by law, yet it can be rendered imperfect by the vendor when he transfers the property to another person who also has a superior right to the plaintiff pre-emptor.

It was further held in view of earlier judgment of Constitutional Bench, the right to pre-empt the sale is not exercisable till a pre-emptible transfer has been effected and the right of pre-emption is not one which is looked upon with great favour by the courts presumably for the reason that it is in derogation of the right of the owner to alienate his property. It is neither illegal nor fraudulent for parties to a transfer to avoid and defeat a claim for pre-emption by all legitimate means.

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