Rajasthan High Court - Jaipur
Prem Chand And Others vs Smt Rajeshwari Meghnani And Others on 9 May, 2013
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR S.B. Civil Misc. Appeal No.1650/2012 Premchand & Ors.-Appellants Versus Smt. Rajeshwari Meghnani & Ors.-Respondents Date of Judgment::09.05.2013 Hon'ble Ms. Justice Bela M. Trivedi Mr. N.K. Maloo Senior Counsel with Mr. V.K. Tamoliya, for appellants. Mr. Pradeep Choudhary, for respondent No.2. Judgment By the Court:-
Reportable
1. With the consent of the learned counsels for the appellants and the respondent No.2 the appeal is finally decided at the admission stage. Notices to the respondent Nos.1 and 3 are dispensed with.
2. The present appeal has been filed by the appellants-plaintiffs under Order XLIII Rule I (r) of CPC, challenging the order dated 23.04.2012 passed by the Additional District Judge, No.9, Jaipur Metropolitan City, Jaipur (hereinafter referred to as the trial court) in Civil Misc. Case No.78/2012 in Civil Suit No.106/2012, whereby the trial court has interalia directed the parties to maintain status-quo as regards the suit property, and as regards the electric meters fixed in the suit property, and has further restrained the parties from causing any obstruction to each other in the egress and ingress of the suit property.
3. The facts in brief giving rise to this appeal are that the appellants-plaintiffs have filed the suit claiming their right of preemption to purchase the suit property and for substituting their names in place of the respondent No.2-defendant No.2 in the sale deed dated 28.03.2012 executed by the respondent No.1 in favour of the respondent No.2, and further seeking permanent injunction restraining the defendants from taking over the possession of the suit property and from transferring or alienating or creating any charge on the suit property and also restraining them from causing any obstruction to the plaintiffs in using the said property. The appellants had also filed an application being No.78/2012 under Order XXXIX Rule 1 & 2 seeking the temporary injunction of similar nature. It has been alleged in the suit that late Shri Laxmandas was the owner of the property being house No.254 situated in Sindhi Colony, Bani Park, Jaipur and that the plaintiffs Nos.1 to 5 and the defendant Nos.1 & 3 were the co-owners of the said house. According to the plaintiffs, the defendant No.1 was the wife of Mangaram, one of the sons of late Shri Laxmandas, and she had 1/6th undivided share in the said house. It has been further alleged that the respondent No.1-defendant No.1 Smt. Rajeshwari Meghnani executed the sale deed in favour of the respondent No.2-defendant No.2 on 28.03.2012 in respect of her 1/6th share in the suit house, more particularly shown in yellow color in plan attached to the sale deed, admesaruing 83.33 square yards without giving any notice to the plaintiffs. According to the plaintiffs, they being the co-sharers of the property in question, and there being some amenities common between the two parts of the suit property, one part in occupation of the plaintiffs and the other in occupation of the respondent No.1, the plaintiffs had the right of preemption to purchase the undivided share of the defendant No.1. The appellants-plaintiffs having also filed the application for temporary injunction, the same was resisted by the respondent No.2 i.e. defendant No.2, the purchaser denying the allegations made in the plaint and further contending interalia that the defendant No.2 had purchased the property by executing the sale deed after giving the public notice on 20.03.2012 and they were in legal possession of the suit property. In the said application, the trial court had passed the order as dated 23.04.2012 as stated hereinabove, which is under challenge in the present appeal.
4. The present appeal was filed by the appellants on 24.04.2012. When the appeal came up for admission hearing on 27.04.2012, the Court had passed the following order:-
Heard learned counsel for the appellants.
Issue notice of the appeal as well as stay application to the respondent No.2 only. Rule is made returnable within two weeks.
Put up on 16th May, 2012.
Till then, the operation of the order dated 23.4.2012 passed by the learned Additional District Judge No.9, Jaipur Metropolitan City, Jaipur passed in Civil Misc. Case No.78/2012; Premchand Vs. Smt. Rajeshwari shall remain stayed and further defendant-respondent No.2 is restrained from entering into the suit property and interfering in the peaceful living of the plaintiffs-appellants.
5. Subsequently, the appellants filed an application being No.16717/2012 in the present appeal alleging interalia that under the garb of the impugned order dated 23.04.2012 passed by the trial court, the respondent No.2 with the help of Police and other musclemen had forcefully entered into the suit house on 25.04.2012, by breaking open the lock of the main gate of the suit house. The appellants, therefore have prayed to pass the appropriate orders directing the respondent No.2 to vacate the suit house and further restraining him from entering into the suit house during the pendency of the suit. The said application has been resisted by the respondent No.2 by filing the reply denying the allegations made against him and further contending interalia that the suit property was purchased with the knowledge of the appellants and the respondent No.2 was in legal possession of the suit house by virtue of the sale deed dated 28.03.2012. It was also contended that the entries in both parts of the suit house were separate and that the application was filed with malafide intention to harass the respondent No.2.
6. It has been sought to be submitted by the learned Senior Counsel Mr. N.K. Maloo for the appellants that the appellants being the co-sharers in the suit property alongwith the respondent No.1, they had the right to purchase the said property in preference over the respondent No.2, who was an outsider. He further submitted relying on the provisions contained in the Rajasthan Preemption Act, 1966, that in view of Section 6 read with Section 3 & 4, the appellants have a strong prima facie case to acquire the property and to get their names substituted as transferee, in the sale deed executed by the respondent No.1 in favour of the respondent No.2. Pressing into service, Section 44 of the Transfer of Property Act, Mr. Maloo submitted that when the co-sharer of the immovable property which is a dwelling house, transfers his share or interest in the said property, the transferee, who is not the member of the family, would not be entitled to the joint possession alongwith the other co-sharers. The learned counsel has relied upon the decisions of the Apex Court in cases of Gautam Paul Versus Debi Rani Paul And Others, (2000)8 Supreme Court Cases 330; Gajara Vishnu Gosavi Versus Prakash Nanasaheb Kamble And Others, (2009)10 Supreme Court Cases 654; Subhodkumar And Others Versus Bhagwant Namdeorao Mehetre And Others, (2007)10 Supreme Court Cases 571; Ramdas Versus Sitabai And Others, (2009) 7 Supreme Court Cases 444 and decisions of the Allahabad High Court in case of Ram & Ors. V. Ram Kishan & Ors., AIR 2010 Allahabad 125 and also the decision of the Orissa High Court in case of Bhim Singh & Anr. V. Ratnakar Singh & Ors., AIR 1971 Orissa 198, to submit that the outsider, who has purchased the undivided share in the dwelling house cannot have the right of joint possession or common enjoyment, in view of Section 44 of Transfer of Property Act, until the transferee filed the suit under Section 4 of the Partition Act. Mr. Maloo also submitted that the respondent No.1 had not given any notice to the appellants, as contemplated in Section 8 of the Rajasthan Preemption Act, and therefore also the sale deed executed by respondent No.1 in favour of the respondent No.2 was illegal, null and void.
7. However, the learned counsel Mr. Pradeep Choudhary for the respondent No.2 vehemently submitted that a public notice about the sale of the portion of the suit property was published in the local daily on 20.03.2012, and thereafter the respondent No.2 had purchased the share of the respondent No.1 by executing the sale deed on 28.03.2012. He also submitted that the appellants had the knowledge about the said sale and that the sale could not be treated as void for want of compliance of Section 8 of the Rajasthan Preemption Act. According to him, neither personal notice nor notice by registered post is required to be given to the pre-emptors as per the settled legal position. He also submitted that right of preemption is a very weak right and it can be defeated by estoppel. In this regard, the learned counsel Mr. Choudhary has relied upon the decision of Apex Court in case of Indira Bai V. Nand Kishore, reported in AIR 1991 SC 1055 and the decisions of this Court in cases of Zorwal Versus LRs. of Sri Kishan, 2009(4) RLW 3145; Devilal & Ors. Versus Kishanlal & Ors., 2006(3) WLC (Raj.) 61 and in case of Kumari Praveen Sahani & Anr. Versus Smt. Sushila Devi, 2004(2) WLC (Raj.)780. According to Mr. Choudhary, the suit house having been purchased with the knowledge and notice of the appellants, the right of preemption claimed by the appellants was deemed to have been waived by them by acquiescence. Distinguishing the decisions of the Apex Court relied upon by the learned senior counsel Mr. Maloo for the appellants, Mr. Choudhary submitted that the said decisions were not applicable to the facts of the present case, and therefore would not be helpful to the appellants. He also submitted that the respondent No.2 is staying in the house with his family, and that he or his family members shall not enter into that portion of the house, which is occupied by the appellants. He also submitted that since the suit property is being capable of managed separately by the appellants and the respondent No.2, the trial court has rightly passed the order directing the parties to maintain status-quo as regards the suit property.
8. In the instant case, it is not disputed that the respondent No.1 had only 1/6th undivided share in the suit house, alongwith the present appellants. In the sale deed executed by her in favour of the respondent No.2, she has categorically stated about her undivided 1/6th share in the suit property, which is a dwelling house. It is true that for the purpose of convenience, the house was divided into two parts, one part being in possession of the appellants and the other in possession of the respondent No.1. There was a partition wall in between in the common passage in the front part of the house, which appears to have been demolished because of the disputes between the parties. However, it is not disputed that there were certain common amenities like electric meters and common passage, being used by the appellants also. It is also not disputed that the sale deed was executed on 28.03.2012 by the respondent No.1 in favour of the respondent No.2 and the suit was filed by the appellants-plaintiffs on 13.04.2012 i.e. within 15 days of the execution of the said sale deed. It also appears that the trial court having passed the impugned order on 23.04.2012, the appellants had immediately rushed to this Court by filing the present appeal on 24.04.2012. According to Mr. Maloo, 25.04.2012 & 26.04.2012 being Saturday and Sunday, the Court was closed and the matter was listed on 27.04.2012. On the said date, the Court, while issuing notice to the respondent No.2, had restrained the respondent No.2 from entering into the suit property and interfering in the peaceful living of the plaintiffs-appellants. Subsequently, the application under Section 151 of CPC was filed by the appellants alleging that the respondent No.2 taking undue advantage of the impugned order dated 23.04.2012, had entered into the suit premises illegally with the help of Police and musclemen and had broken open the lock of the main gate of the suit premises. It appears that the criminal complaints and the cross complaints have also been filed by the parties against each other in the Police Station.
9. Be that as it may, so far as the legal position is concerned, it clearly transpires from the provisions contained in the Rajasthan Preemption Act, that Section 6 provides as to which classes of persons would be entitled to the right of preemption, and one of the classes is the co-sharers of the property transferred. Section 8 of the said Act provides that when any person proposes to sell the immovable property in respect of which any persons have a right of preemption, he shall give notice to all such persons as to the price at which he is proposing to sell and that such notice shall be given through the civil court within the local limits of whose jurisdiction, the property concerned is situated. Section 9 of the said Act provides that the person having a right of preemption in respect of any immovable property proposed to be sold shall lose such right unless within two months from the date of the service of such notice, he or his agent pays or tenders the price specified in the notice given under Section 8 to the person so proposing to sell.
10. On the conjoint reading of the said provisions of the said Act, it clearly transpires that the respondent No.1, who had proposed to sell her share in the property in question was required to give notice to the appellants, who were the co-sharers in the suit property, before selling her undivided 1/6th share in the suit property to the respondent No.2. However no such notice as contemplated in Section 8 of the said Act was given by her. One notice was published in the newspaper on 20.03.2012, and thereafter the sale deed was executed on 28.03.2012. Hence, the requisite period of two months as contemplated in Section 9 was also not given to the appellants to exercise their right of preemption in respect of the property in question. Whether the such public notice is a proper notice or not, and whether the sale deed executed in favour of respondent No.2 is void or voidable would be the issues to be decided by the trial court in the suit. However, prima facie it appears that the respondent Nos.1 & 2 had not complied with the provisions of the said Act so far as giving of the notice to the appellants before executing the sale deed, was concerned.
11. The learned Senior Counsel Mr. N.K. Maloo has also rightly pressed into service the provision contained in Section 44 of the Transfer of the Property Act, which reads as under:-
44.Transfer by one co-owner.-Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.
12. From the bare reading of the of the said provision, it clearly transpires that when the transferee of a share of dwelling house belonging to the undivided family, is not a member of the family, he would not to be entitled to the joint possession or other common or part of the enjoyment of the house. The only manner in which an outsider can get possession is to sue for possession and claim separation of his share. The Apex Court in case of Gautam Paul V. Debi Rani Paul (supra) while dealing with the similar issue has observed in para 23 as under:-
23. We are in agreement with this opinion. There is no law which provides that co-sharer must only sell his/her share to another co-sharer. Thus strangers/outsiders can purchase shares even in a dwelling house. Section 44 of the Transfer of Property Act provides that the transferee of a share of a dwelling house, if he/she is not a member of that family, gets no right to joint possession or common enjoyment of the house. Section 44 adequately protects the family members against intrusion by an outsider into the dwelling house. The only manner in which an outsider can get possession is to sue for possession and claim separation of his share. In that case Section 4 of the Partition Act comes into play. Except for Section 4 of the Partition Act there is no other law which provides a right to a co-sharer to purchase the share sold to an outsider. Thus before the right of pre-emption, under Section 4, is exercised the conditions laid down therein have to be complied with. As seen above, one of the conditions is that the outsider must sue for partition. Section 4 does not provide the co-sharer a right to pre-empt where the stranger/outsider does nothing after purchasing the share. In other words, Section 4 is not giving a right to co-sharer to pre-empt and purchase the share sold to an outsider anytime he/she wants.......
13. The Apex Court in other cases relied upon by the learned counsel Mr. Maloo has reiterated the aforesaid ratio. The legal position that emerges from the said decisions is that an outsider can purchase the share from the co-sharer even in dwelling house, but cannot get the right of joint possession or common enjoyment in view of Section 44 of the Transfer of Property Act, until the transferee initiates the proceedings for the partition claiming his share, under Section 4 of the Partition Act, and that the right of the co-sharer to preempt would arise only if the stranger transferee initiates such proceedings. It is pertinent to note that the Apex Court in the said cases has not dealt with the situation where the co-sharer of the transferred property had the right of preemption under the local law like the Rajasthan Preemption Act, 1966.
14. Be that as it may, in the instant case, no such proceedings of partition under Section 4 of Partition Act have been initiated by the respondent No.2 and therefore he could not claim the joint possession or common enjoyment of the suit property alongwith the appellants, who are the co-sharers, in view of Section 44 of the Transfer of Property Act. Whether the appellants would have any right to preempt or not, would also be a matter to be decided in the suit by the trial court. However there being specific bar contained in Section 44 of the Transfer of the Property Act, the respondent No.2, who is admittedly an outsider could not be permitted to continue in the joint possession of the suit property alongwith the appellants, who are the co-sharers in the suit property, which is a dwelling house belonging to the undivided family.
15. Though, it was sought to be submitted by the learned counsel Mr. Choudhary for the respondent that the entries of the two parts of house, one in possession of the appellants and the other in possession of the respondent No.2 being separate, the same could be managed without any hindrance, or without causing any interference in the possession of each other, the said submission could not be accepted for the simple reason that the parties have already filed the criminal complaints against each other and the joint possession would create further complications. Even otherwise there are common amenities like electric meters and common passage, which are being used by the appellants and they could not be restrained from using the same. In view of the settled legal position, the respondent No.2 could not be permitted to have possession of the undivided share in the suit property, which is a dwelling house and therefore the respondent No.2 is required to be directed to vacate the suit house forthwith. At the same time, in order to examine the bonafides of the appellants to purchase the share of the respondent No.1, they are also required to be directed to deposit the amount of sale consideration of Rs.16,00,000/- (rupees sixteen lacs) as mentioned in the sale deed dated 28.03.2012 executed by the respondent No.1 in favour of the respondent No.2.
16. In view of the above, the impugned order dated 23.04.2012 passed by the trial court deserves to be set-aside and is accordingly set-aside. The appellants are directed to deposit the sum of Rs.16,00,000/- in the trial court to show their bonafides to exercise their right of preemption in respect of the suit house, within one week from today. It is further directed that on such deposit being made, the respondent No.2 shall vacate the suit premise within one week thereafter, put the lock and hand over the keys of the suit premises to the 'Nazir' of the trial court, who shall keep the same in the safe custody pending the suit. The amount that may be deposited by the appellants, be invested in the fixed deposit in any nationalized bank for the period of five years which may be renewed from time to time till the pendency of the suit. The trial court is directed to expedite the trial of the suit. The appeal stands allowed accordingly.
(Bela M. Trivedi) J.
R.Vaishnav S-56.
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Ramesh Vaishnav Jr.P.A.