Pre-Emption Right Lost by Conduct: Presence at Sale & Silence Amounts to Waiver, Rules Punjab & Haryana High Court

Case Name: Sukhma Devi (Deceased) through LRs v. Hawa Singh & Ors.

Date of Judgment: 17 April 2026

Citation: RSA No. 545 of 1991

Bench: Justice Vikas Bahl

Held: The Punjab & Haryana High Court held that the right of pre-emption, being a weak and inequitable right, can be waived by conduct. Where the pre-emptor had knowledge of the sale, was present during the transaction, and failed to object, such conduct amounts to implied waiver, disentitling him from claiming pre-emption.

Summary: The present second appeal arose from a suit for declaration and possession by way of pre-emption, wherein the First Appellate Court had decreed the suit in favour of the plaintiff. The defendant challenged the said decree before the High Court.

The appellant contended that the plaintiff had waived his right of pre-emption as he had knowledge of the sale transaction, was present at the time of the agreement to sell, and did not object either at that stage or at the time of execution of the sale deed. It was further argued that the plaintiff had earlier filed another pre-emption suit which was dismissed due to non-deposit of the required amount, demonstrating lack of bona fides.

On the other hand, the respondent-plaintiff argued that no statutory notice under the Punjab Pre-emption Act had been served and that he became aware of the sale only later. It was also contended that the property was joint and thus pre-emption rights were available.

The High Court examined the evidence and noted that the plaintiff’s own witness had admitted in cross-examination that he and the original plaintiff were present when the sale deal was being finalized. Despite such knowledge, no objection was raised and the suit was filed after a considerable delay.

The Court relied on the Supreme Court judgment in Indira Bai v. Nand Kishore to reiterate that pre-emption is a weak right and can be defeated by lawful means, including waiver by conduct. It held that even in the absence of formal notice, knowledge of the transaction coupled with acquiescence is sufficient to establish waiver.

The Court further observed that the appellant was a bona fide purchaser who had relied upon revenue records showing separate ownership of specific khasra numbers. Additional evidence in the form of jamabandis also supported the appellant’s case.

Decision: The High Court allowed the appeal, set aside the judgment of the First Appellate Court, and restored the trial court’s decision dismissing the suit. It held that the plaintiff had waived his right of pre-emption by his conduct and that the appellant’s rights as a purchaser deserved protection.