Smt. Vijayalakshmi
Vs. B. Himantharaja Chetty & Anr [1996] INSC 681 (7 May 1996)
Punchhi,
M.M.Punchhi, M.M.Sen, S.C. (J) Punchhi, J.
CITATION:
JT 1996 (4) 747 1996 SCALE (4)300
ACT:
HEAD NOTE:
This
appeal by special leave is directed against the judgment and decree dated 1-9-1978, rendered by a Division Bench of the High Court of
Karnataka in Regular First Appeal No.91 of 1973, affirming that of the Trial
Court.
Shri Batchu
Muniyappa Chetty, statedly the foster father of Smt. Vijaya Lakshmi, the
appellant herein, and Shri B. Himantharaja Chetty, the contesting respondent
herein, were brothers, being the sons of Shri Batchu Ramaiah Chetty. The father
and sons effected a partition of their joint family properties, under
registered Partition Deed dated June 23, 1928 (Ex.P.3), as detailed in Schedule A attached thereto. Thereunder
the father was given properties described fully in Schedule B to the indenture
valued at Rs.20,000/-. The foster father of the appellant got properties
described fully in Schedule B to the indenture and valued at Rs.12,500/-. The
contesting respondent got the properties described fully in Schedule C to the
indenture also valued at Rs.12,500/-. Clause 12 thereof provided a stipulation
of preemption, which being the bone of contention. reads as follows:
"The
second (the foster father of the appellant) and third (the contesting
respondent herein) are allotted the immovable properties Nos.137, 138 and 139, Jeweller's
Street and No.25, Veera Pillay Street as described in the Schedules hereunder.
Though the party to whom it is allotted is entitled to dispose it of, he shall
not do it to any stranger without giving the parties to this indenture an
opportunity to buy it by pre-emption at the valuation given in the schedule to
this indenture." The foster father of the appellant died somewhere in the
year 1948 leaving his property by means of a Will dated 1-12-1948 to his widow Smt.
Lakshmidevamma, who also died in the year 1956 However, before her death, in
1951, she, as foster mother of the appellant executed a Will in favour of the
latter bequeathing to her properties mentioned in Schedule C. The appellant
claims to have received these properties as a foster child of late Batchu Muniyappa
Chetty and his late widow Smt. Lakshmidevamma, but not as a stranger.
The
respondent on 11-12-1956 instituted a suit against the appellant for possession
of the aforementioned Schedule C properties the Civil Court at Bangalore inter alia
on the premise that under the terms of the Partition Deed, above- referred to,
the dispositions of properties made in the manner stated above by late Batchu Muniyappa
Chetty and after him by his widow Smt. Lakshmidevamma, were in breach of the
terms of the Partition Deed and therefore his right to enforce his claim for
pre-emption, on payment of Rs.3100/-, the price fixed therein, had ripened. The
appellant put forth the two wills to assert her title as legatee. She also
claimed on a variety of grounds that neither the plaintiff-respondent had any
right of pre- against her nor was such claim tenable in law.
Having
regard to the multiplicity of pleas raised by both sides, the trial court
framed as many as 11 issues but the relevant ones for the present purpose are
the following two issues:
No.3.
Whether the plaintiff proves his right of pre-emption in respect of disposition
of properties by bequest as well? No.4. Whether defendants prove that the
alleged pre-emption is unenforceable against her for reasons stated in para 4
of the written statement? After recording evidence of the parties and
entertaining documentary evidence the trial court recorded its findings on
those two issues to the effect that the plaintiff-respondent had all right of
preemption in respect of the suit properties even though they came to the
appellant by bequest and that such right of pre-emption was an enforceable
right. On holding so and as a result of findings on other issues, the
plaintiff-respondent's suit was decreed, directing the appellant to execute a
Deed of Sale, at the cost of the plaintiff-respondent, on payment of Rs.3100/-,
and consequently deliver possession of the properties to the
plaintiff-respondent.
The
appellant preferred Regular First Appeal before the High Court of Karnataka
which was placed before a Division Bench comprising of K. Bhimiah and K.S. Puttaswamy,
JJ. for disposal. The Hon'ble Judges of the High Court differed and rendered
separate judgments. K. Bimiah, J. opined for the dismissal of the appeal
affirming the judgment and decree of the trial court on all issues except to
very the price payable to be Rs.36000/- as determined by the trial court for
purposes of jurisdiction and court fee. He thus ordered maintenance of the
trial court's judgment and decree on payment of Rs.36000/- as price. K.S. Puttaswamy,
J. however in his opinion took the view that findings on Issues Nos.3 and 4 be
reversed and hence the appeal allowed. This divergence of opinion attracted
Sub-section (2) of Section 98 of the C.P.C. and therefore the judgment and
decree of the Trial Court got confirmed. The price rise too got affirmed on
agreement. In sum the plaintiff-respondent got maintained the decree on payment
of Rs.36000/- as price of the property. Being aggrieved the appellant is before
us.
We do
not propose to enlarge the canvass to enter into elaborate discussion and
analysis as undertaken by members of the High Court Bench in their respective
opinions on Issues Nos.3 and 4 relating to the concept of pre-emption, its
historical perspective, related precedents and its validity as of today and
other ramifications. All the same a classic judgment of Mohmood, J. in Govinda Dayal
vs. Inayatulla [ILR 7 A1] 775 at page 909 (F8)] is worth reference, which
explained the right of pre-emption in the following words:
"It
(right of pre-emption) is simply a right of substitution entitling the
preemptor by means of a legal incident to which the sale itself was subject, to
stand in the shoes of the vendee, in respect of the rights and obligations
arising from the sale under which he has derived his title. It is in effect, as
if in a sale deed, the vendee's name was rubbed out and the pre- emptors's name
was substituted in his place.
The
concept of substitution from that long and even before has been the foundation
of the law of pre-emption and has been noticed, followed and employed, time and
again, in a catena of decisions. The fact that this Court in Atam Prakesh vs.
State of Haryana [1986(2) SCC 249] has struck down the right of pre-emption
based on consanguinity as a relic of the feudal past, inconsistent with the
constitutional scheme and modern ideas, has not altered the situation that the
right of pre-emption, wherever founded, whether in custom, statute or contract,
is still a right of being substituted in place of the vendee, in a bargain of
sale of immovable property. We therefore need not burden this judgment with
other attributes of the concept as attempted by both Hon'ble Judges of the High
Court. We would rather go to decide this appeal on the basis of the contractual
term aforementioned.
It is
noteworthy that Clause 12 of the Partition Deed not only mentions the list of
the properties allotted to the two brothers but their separateness is complete
and evidenced, the way these properties are apportioned and earmarked in
Schedules C and D. by allocating specific properties to the two brothers, each
of them had become exclusive owner of those allotted. Clause 10 of the Deed and
the Schedules A, C & D are reproduced hereafter:
10.
The parties two and three have been allotted portions in premises 137 and 138 Jeweller Street as per their respective schedules
and the plan annexed to this indenture. The portions allotted to party No.2 are
marked yellow and the party No.3 red. The cost of construction of wall or walls
for partitioning the said portions, shall be borne by the parties two and three
in equal shares." Schedule A, containing the list of involved partible
joint family properties:
DISCRlPTI0N
VALUE
(1)
Property No.139 - Rs.1400
(2)
Property No.138 - Rs.2800
(3)
Property No.137 - Rs.1500
(4)
No.25, Veera Pillay Street - Rs. 400
Total
- Rs.6100
Schedule
C showing properties which came to the foster father of the appellant:
DESCRIPTION
VALUE
(1)
Total premises No.25, Veera Pillay Street, Bangalore; - Rs.400
(2)
Portion earmarked and shown as yellow in Property No.137; - Rs.1400
(3)
Portion earmarked and shown in yellow in Property No.138; - Rs.1300
Total
- Rs.3100
Schedule
D showing the properties which came to the contesting respondent:
DESCRIPTION
VALUE
(1)
Total property No.139; - Rs.1400
(2)
Portion in Property No.137, as shown in red; - Rs. 100
(3)
Portion in Property No.138 as shown in red; - Rs.1500
Total
- Rs.3000
Walls
were intended to be raised to demarcate and separate the portions relating to
two properties as the other two were individually allotted to the respective
parties. This fall out of the partition has unfortunately not been taken into
account either by the Trial Court or the Bench of the High Court. The following
finding recorded by the Trial Court therefore does not match happily with the
pattern of partition:
"The
entire building consisting of the portion allotted to the share of the
plaintiff and to the share of his brother Batchu Muniyappa Chetty forms one
house. If a stranger is inducted in any portion of the house, the members
residing in the other portion will feel it inconvenient to lead a peaceful
life. Every house requires privacy from strangers. Apart from this there are
common passage and entrances. In fact, storm water from the roof of one of the
parties falls into the portion of the other party. A window belonging to the
plaintiff opens into the space belonging to the other party. There are
connected doors; the hall in the first floor is allotted to the share of the
plaintiff and the hall just below it is in-the possession of defendants. There
is a stair case also leading to the first floor and the space directly below it
has gone to the share of the plaintiff's brother. All these matters are such
that it is not possible to lead a convenient and peaceful life if a stranger is
inducted to the property. It appears in view of these circumstances clause of
pre-emption was inserted in the partition deed to safeguard the peace,
convenience and amity of the family and the insertion of such a clause in the
partition deed is not in violation of the provisions of the transfer of
Property Act.
In
view of what has been discussed above it must be held that the plaintiff has
got a right of pre-emption in respect of the suit Property even though it is
bequeathed by the late Batchu Muniyappa Chetty on his window and his window in
turn bequeathed on the first defendant. It also be held that the right of
preemption is an enforceable right. I, therefore, answer issues 3 and 4 in favour
of the plaintiff and against the defendants." And seemingly it has met the
approval of the High Court.
Now
who is the stranger' meant to be excluded in the Partition Deed? The Trial
Court has viewed the plaintiff- appellant to be a stranger, being not a
relative and at least to the family of the plaintiff-respondent. Bhimiah, J.
affirms
this view. Puttaswamy, J. held that the appellant is a stranger in the eye of
law to the family of her foster father, but not in fact. The word `stranger',
in our view, had to be understood not in terms of blood or marriage
relationship with the family but as a person unconnected with it, unknown in
character and antecedents to the executants of the Deed. The word `stranger' in
the text has, in our view, to be interpreted as that person who has no
connection whatsoever with the families of the original executants i.e. the
father and two sons. It has to be seen that the plaintiff-respondent was not an
utter stranger to the family members though she may not have been related to
them through blood or marriage or otherwise by legal adoption. In any case, she
had become connected with the family which relationship required to be
respected with some sanctity, legitimately due to human bonds, because of her
long association with her foster parents. Her status as such could by no means
be termed as a 'stranger' for the purpose of Clause 12 of the Partition Deed.
Thus if the bequest in her favour was not made to a total stranger, one need
not enter the thicket to find whether the appellant was legally a stranger to
the family, when factually she was not, and in that manner not unconnected with
the family.
Next
we come to the question whether the disposition conceived of in the Partition
Deed should be a sale attracting pre-emption or could it also be a disposition
other than sale. The word `pre-emption' as is well understood is a term of law.
lt is a right of substitution conferred on someone either by statute, custom or
contract.
The
right is to step into the shoes of the vendee preferentially, on the terms of
sale already settled between the vendor and the vendee. The courts below were
put across the irrefutable argument that the tenor of the Deed suggested that
it was written by a professional, knowing fully well the attributes of
pre-emption. The Deed itself says that the parties have to be given an opportunity
to buy the property meant for disposal. The Deed provides so on the supposition
that the disposition contemplated would be a sale and none other. Had it been
otherwise, the words "by pre-emption" could easily have been omitted
conveying the meaning suggested and the deed made to read ".... he shall
not do it to any stranger without giving the parties to this indenture an of
opportunity to buy it by pre-emption at the value given in the Schedule to this
indenture". It is thus evident that the words "by pre-emption"
were consciously employed to denote that the opportunity to buy it by pre-
emption would only arise when there is a same and on no other disposition. It
could then be said that but for these words "by pre-emption", any
other disposition could have come within the grip of the Clause towards buying
property, but without bringing in the word "preemption".
Thus
for the afore-expressed views we have come to the firm conclusion that on the
terms of the Partition Deed, the contractual right of pre-emption conferred on
the parties to buy property before it is disposed of to a stranger was based on
the precondition that the proposed or actual disposal would be only-by way of
sale and no other, and that too if made to a stranger. None of these conditions
are satisfied in the facts and circumstances of the case as neither is the
disposition a sale nor is the transferee a stranger. Therefore, the suit of the
plaintiff-respondent should have been and is hereby dismissed by allowing this
appeal, upsetting the judgments and decrees of the trial court as well as that
of the High Court, but without any order as to costs.
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