The right of pre-emption does not accrue on a transfer of the property to any person who has an inferior right of pre-emption.

The Supreme Court in the case of Suresh Chand and Anr. vs. Suresh Chander (D) (Civil Appeal No 482 of 2020, arising out of SLP(C) No. 11551 of 2011) on 19.02.2020 opined that the plaintiff had a superior right of pre-emption since he’s the brother as compared to the Defendant who has an inferior right of pre-emption.

Facts :
Sh. Beni Prasad (Plaintiff) and Sh. Kirorilal (Defendant no. 2) were brothers. Plaintiff filed the suit against Sh. Devicharan (Defendant no. 1) being brother & joint owners of the suit property. The Defendant no. 1 argued that sale deed was executed in his favour by Defendant no. 2 in the year 1990 and he had a share in the suit property and has a vested a right of pre-emption.
The Trial Court held that the right of pre-emption of Defendant no. 1 was lesser than that of Plaintiff.
Further, the Appellate Court held that the brother of Kirorilal had a better or a higher right as compared to Devicharan, since Kirorilal and Beni Prasad were brothers. The first appeal was dismissed. The High Court dismissed the second appeal in limine holding that no substantial question of law arose for its consideration. Hence, the present appeal.

Issue:
Whether the decision of Trial Court and High Court, that right of pre-emption will accrue only to a person with superior right of pre-emption is correct or not?

Ratio:
The Apex Court referred a to four judge Bench decision of this Court in Bishan Singh vs Khazan Singh which summarised the law on pre-emption as follows:
The plaintiff is bound to show not only that his right is as good as that of the vendee but that it is superior to that of the vendee. Decided cases have recognized that this superior right must subsist at the time the pre-emptor exercises his right and that right is lost if by that time another person with equal or superior right has been substituted in place of the original vendee. Courts have not looked upon this right with great favour, presumably, for the reason that it operates as a clog on the right of the owner to alienate his property. The vendor and the vendee are, therefore, permitted to avoid accrual of the right of pre- emption by all lawful means. The vendee may defeat the right by selling the property to a rival pre-emptor with preferential or equal right. Preference being the essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place.
The Supreme Court was of the view that the concurrent findings of the Trial Judge, the first appellate court and in second appeal, have proceeded on a correct interpretation.