1994 (7) TMI 342

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....ght of the owner to alienate his property". In Radhakishan Laxminarayan Toshniwal v. Shridhar Ramchandra Alshi1, it was observed that "to defeat the law of pre- emption by any legitimate means" was not fraud. Therefore, availability of this weak or archaic right has to be construed strictly. In the Act, there is no provision extending the benefit of pre-emption to agricultural holdings. A person claiming preemption, therefore, has to squarely fall within the four comers of the provisions contained therein. 3. The right of pre-emption is defined in Section 3 to mean "a right accruing under Section 4 of the Act upon transfer of any immovable property to acquire such property and to be substituted as the transferee thereof in place of and i....

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.... interest under Section 41 of the same Act on conditions specified in Sections 42 and 43. His interest is heritable under Section 40 as well. Is that sufficient in law to make him owner of the property? Is the transfer made by a khatedar tenant a transfer of ownership? A khatedar tenant, admittedly, is a person by whom rent is payable under Section 43 of the Tenancy Act. The effect of it in law is that such a person cannot be deemed to be an absolute or unlimited owner which is necessary before the right of pre-emption can be exercised. In Butterworth's Words and Phrases Legally Defined, 2nd Edn., Vol. 4, page 61, 'ownership' has been defined as under: "Ownership consists of innumerable rights over property, for example, the ....

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.... or otherwise, enjoys right of heritability and transferability. At the same time, he does not become owner of the property. Transfer of ownership is distinct and different from transfer of interest in the property. A licensee or even a tenant may be entitled by law to transfer his interest in the property but that is not a transfer of ownership. For instance, a lessee from a corporation or a local body or even State Government to raise building may have heritable and transferable right but such a person is not an owner and the transfer in such a case is of his interest in the property and not the ownership. In Inder Sen v. Naubat Singh2 it was held that absolute ownership is an aggregate of compendium of rights such as right of possession,....