Karnataka High Court
Sri Ramakrishnappa vs Sri K M Anjinappa on 29 March, 2016
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
®
DATED THIS THE 29TH DAY OF MARCH, 2016
BEFORE
THE HON'BLE MR. JUSTICE A.N.VENUGOPALA GOWDA
REGULAR SECOND APPEAL NO.16/2011
BETWEEN:
SRI RAMAKRISHNAPPA
AGED ABOUT 63 YEARS,
S/O. CHINNAPPAIAH @ ERAPPA
R/AT CHOKKANDAHALLI,
KASABA HOBLI, MALUR TALUK
KOLAR DISTRICT - 563 130.
... APPELLANT
(BY SRI VENKATESHA C. FOR
SRI C. SHANKAR REDDY, ADV.)
AND:
1. SRI K.M. ANJINAPPA
S/O. CHINNAPPAIAH @ ERAPPA
AGED ABOUT 60 YEARS,
R/AT KALKUNTE AGRAHARA,
ANUGANDANAHALLI HOBLI,
HOSAKOTE TALUK
BANGALORE RURAL DISTRICT - 571 203.
2. SRI PILLA REDDY
S/O. APPAIAH REDDY
AGED ABOUT 55 YEARS,
RESIDING AT CHOKKANDAHALLI,
2
KASABA HOBLI, MALUR TALUK
KOLAR DISTRICT - 563 130.
... RESPONDENTS
(BY SRI H.T.MANJUNATHA, ADV.)
THIS RSA IS FILED UNDER S.100 R/W ORDER 42 RULE 1
OF CPC, AGAINST THE JUDGMENT AND DECREE DATED
20.08.2010 PASSED IN R.A.NO.257/2005 ON THE FILE OF THE
II ADDL. CIVIL JUDGE (SR.DN.) KOLAR, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
08.07.2005 PASSED IN O.S.NO.252/1993 ON THE FILE OF THE
PRL. CIVIL JUDGE (JR.DN.) MALUR.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff has filed this appeal. O.S.No.252/1993 filed in the Court of Prl. Civil Judge (Jr.Dn.) at Malur, to pass a decree of declaration that the sale transaction of the suit property between the defendants is not binding on the plaintiff and for grant of perpetual injunction against the defendants, specifically to perform the decree passed in O.S.No.25/1989 and for execution of the sale deed and put him in full possession having been dismissed, R.A.No.257/2005 was filed in the Court of Civil Judge 3 (Sr.Dn.), at Kolar. The II Additional Civil Judge (Sr.Dn.), Kolar, itinerating at Malur, having dismissed the appeal, this second appeal was filed.
2. For the sake of convenience, the parties in this appeal will be referred to as the plaintiff and the defendants i.e., in the rank in which they stood in the Trial Court.
3. The plaintiff and the defendant No.1 are brothers. The plaintiff had filed O.S.No.25/1989 in the Court of Munsiff at Malur, against his brother, the first defendant and his father Sri Chinnappaiah @ Erappa, to pass a decree and declare that the registered partition deed dated 30.09.1980 is void and for restraining the defendants from alienating the 'C' Schedule property. By a decree dated 20th April, 1993 (Ex.P1), the claim made that the first defendant has no right over the said 'C' Schedule property was dismissed. However, it was decreed that the first defendant shall not sell the said property without notifying the plaintiff.
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4. Brief facts of the case are that the plaint schedule property was allotted to the share of the defendant No.1 in a partition effected by Sri Chinnappaiah @ Erappa, as per the registered Partition Deed dated 30.09.1980. After the decree dated 20.04.1993 was passed in O.S.No.25/1989, the first defendant, on 19.07.1993, notified the plaintiff that he having recently celebrated the marriage of his daughter by raising hand loans and as he is in need of purchasing bullocks and cart for his agricultural operations, intends to sell the suit property i.e., to repay the debt and for legal necessities. It was notified that he is in urgent need of the money. The plaintiff sent a reply, on 29.07.1993, stating that he is prepared to purchase the property for the market value. However, the plaintiff did not quote the price or state as to what the market value is. The first defendant sent a rejoinder on 02.08.1993 and stated that he has the commitment and would deal with the property on his own. 5
5. O.S.No.252/1993 was filed on 21.08.1993 for passing a decree of injunction simpliciter by claiming right of pre-emption pursuant to the decree passed in O.S.No.25/1989. The plaint was amended, after the sale of the suit property, on 24.08.1993, in favour of the second defendant. Additional pleading and additional relief of decree of declaration that the sale transaction between the defendants be declared as void and not binding and to direct the defendants to execute the sale deed at the market value and put the plaintiff in possession was inserted.
5.1. The defendants filed written statement and additional written statement inter alia stating that there is no violation of the decree passed in O.S.No.25/1989 and that the sale of suit property made on 24.08.1993 is lawful. Various other defences have been taken.
5.2. The Trial Court raised issues. During trial, the plaintiff got himself examined as PW1 and examined one witness as PW2. The documents produced were marked as 6 Exs.P1 to P4. The defendants got themselves examined as DW-1 and DW-2 respectively. A witness was examined as DW-3. The documents produced were marked as Exs.D1 to D17.
5.3. The Trial Court dismissed the suit on the ground that there is no merit in the claim of the plaintiff about his right of pre-emption, as the decree passed in O.S.No.25/1989 does not contain express declaration about the right of the plaintiff to purchase the suit property nor is there any direction directing the defendant No.1 to give an opportunity to the plaintiff to purchase the suit property. It was also found that according to the plaintiff the value of the suit property was `16,000/- to `18,000/-, even though the suit property was sold for `55,000/-, to the second defendant.
6. In R.A.No.257/2005 filed by the plaintiff, by considering the rival contentions, two points were raised for consideration. On independent assessment of the evidence, it was held that the suit property having been 7 sold for `55,000/- to the defendant No.2 and the plaintiff having stated the value shown in the sale deed to be excessive and according to him the value of the suit property being `16,000/- to `18,000/- only, it was found that the plaintiff is not ready to pay the market value for the purchase of the suit property. The appeal was dismissed.
7. Sri Venkatesha C., learned advocate, contended that the Courts below have committed grave error in holding that the sale deed executed in favour of the second defendant as not in violation of the decree passed in O.S.No.25/1989. He submitted that the decree passed in O.S.No.25/1989 having become final, the first defendant has the obligation to sell the suit property to the plaintiff and the sale made as per Ex.D7, being illegal, the dismissal of the suit and the appeal is wholly unjustified. Learned advocate submitted that in view of the record of the case, the impugned decrees are liable to be set aside and the suit decreed with costs.
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8. Sri H.T.Manjunatha, learned advocate, on the other hand made submissions in support of the findings recorded by the Courts below. He submitted that both Courts below having properly considered the case with reference to the rival contentions and there being correct appreciation of the evidence, the findings recorded being pure findings of fact and as there is no substantial question of law arising for consideration, the second appeal is not maintainable.
9. In view of the rival contentions and record of the case, the certified copies of which was made available for my perusal by Sri Venkatesha C., the points for consideration are:
"(i) Whether the plaintiff has shown readiness and willingness to pay the market value for purchase of suit property?
(ii) Whether the Courts below have committed error in dismissing the suit and the appeal respectively?"
10. A right to purchase property before or in preference to another person is defined as "Pre-emption". It 9 is otherwise known as "the right of first refusal". The law of pre-emption was introduced in India by Muhammadan Rulers. Muhammadan Law gives the name "Shufaa" for the right of pre-emption and defines it, as power of possessing the immovable property, which has been sold by paying the sum equal to that paid by the purchaser. Under Muhammadan Law, the right of pre-emption is in the nature of an easement. Muhammadan Law makes it necessary for a person claiming the right of pre-emption to declare his intention of becoming a purchaser, immediately on hearing of the sale. The pre-emptor is required, with the least practicable delay, to make affirmation at least by two witnesses, of his intention, either in the presence of seller or of the purchaser or on the premises and the same is known as 'Talab-i-ishhad'. The pre-emptor should declare his readiness and willingness to pay the price of the property.
11. In SHRI AUDH BEHARI SINGH Vs. GAJADHAR JAIPURIA, AIR 1954 SC 417, Apex Court has traced the origin and development of right of pre-emption in different parts of 10 India. It has been pointed out that the Muhammadan Law of pre-emption as between Muhammadans is entirely based on the grounds of justice, equity and good conscience. The law has been succinctly explained by the Apex Court, in the case of MATTOO DEVI (SMT.) Vs. DAMODAR LAL, (DECEASED) BY L.Rs., (2001) 6 SCC 330.
12. In BISHAN SINGH Vs. KHAZAN SINGH, AIR 1958 SC 838, Apex Court has defined and summerised the incidents of right of pre-emption as follows:
"11. 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. To summarize: (1) The right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called the primary or inherent right. (2) The 11 pre-emptor has a secondary right or a remedial right to follow the thing sold. (3) It is a right of substitution but not of re-purchase, i.e., the pre-emptor takes the entire bargain and steps into the shoes of the original vendee. (4) It is a right to acquire the whole of the property sold and not a share of the property sold. (5) 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. (6) The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place."
(emphasis supplied)
13. In RADHAKISHAN LAXMINARAYAN TOSHNIWAL Vs. SHRIDHAR RAMCHANDRA ALSHI, AIR 1960 SC 1368, Apex Court has pointed out that the right of pre-emption is not one which is looked upon with great favour by the Courts, presumably for the reason that it is in derogation of the right of owner to alienate his property. It has been further pointed out that "it is neither illegal nor fraudulent for parties to a transfer to avoid and defeat a claim for pre- emption by all legitimate means". It has been further held that the transfer of property, where the Transfer of Property Act applies, has to be under the provisions of the 12 Act only and the personal law of transfer for property cannot override the statute.
14. In KRISHNA DASS AGARWAL Vs. KANHAIYALAL, AIR 1996 SC 3464, while considering a case where the right of pre-emption was statutorily recognized under the Gwalior Pre-emption Act, Apex Court has held that right of pre-emption is not only a weak right, but that "it is a claim which is generally looked upon by Courts with certain amount of distaste as it interferes with the freedom of the owner to sell his property to the person of his choice."
15. In LACHHMAN DASS Vs. JAGAT RAM, (2007) 10 SCC 448, Apex Court has pointed out that the Court has to weigh the right of pre-emption as against the constitutional and human rights of the owner of the property to dispose it of as he pleases. The relevant portion reads as follows:
"16......To hold property is a constitutional right in terms of Article 300-A of the Constitution of India. It is also a human right. Right to hold property, therefore, cannot be taken away except in accordance with the provisions of a statute. If a superior 13 right to hold a property is claimed, the procedures therefor must be complied with. The conditions precedent therefor must be satisfied. Even otherwise, the right of pre-emption is a very weak right, although it is a statutory right. The court, while granting a relief in favour of a pre-emptor must bear it in mind about the character of the right, vis-a'- vis the constitutional and human right of the owner thereof."
16. In KUMAR GONSUSAB Vs. MOHAMMED MIYAN URF BABAN, (2008) 10 SCC 153, Apex Court has held that there is no equities in favour of a pre-emptor and it would be open to the pre-emptee, to defeat the law of pre-emption by Vendor or Vendee. It has been held that the Court cannot go out of the way to help the pre-emptor.
17. In the present case, the plaintiff / PW1, has admitted the sale of suit property for `55,000/-, to the second defendant. He stated that at the time of said sale, the market value of the suit property was `16,000/- to `18,000/-. PW1 has stated that despite `55,000/- having not been paid, the sale consideration is falsely shown as `55,000/-, in the Sale Deed. According to the plaintiff, during the year 1993, the value of the suit property was in 14 the range of `16,000/- to `18,000/-. He has stated that he intended to buy the suit property for `25,000/-, though he did not state so, while sending the reply notice dated 29.07.1993 (Ex.P3). Plaintiff has stated that he is prepared to purchase the suit property as per the valuation to be made by the villagers. He has specifically admitted that he was not prepared to purchase the suit property for `55,000/-. The said statement clearly belies the contention of the plaintiff's readiness and willingness to pay the market value and buy the suit property.
18. Decree dated 20.04.1993 passed in O.S.No.25/1989 (Ex.P1) clearly recognized the absolute right of defendant No.1 over the suit property. By the said decree, the first defendant was directed to notify the plaintiff, prior to the sale of suit property. By the service of notice vide Ex.P2, there is compliance of the said decree, by defendant No.1. The plaintiff has not notified the first defendant, the consideration amount which he is prepared to pay for the sale of the suit property. The reply 15 notice dated 29.07.1993 (Ex.P3) is silent. Though the property was sold on 24.08.1993 (Ex.D7) for `55,000/-, the plaintiff has maintained all along that the market value of the suit property as `16,000/- to `18,000/- only. He has categorically admitted that he is not ready and willing to pay and purchase the property for `55,000/-. Thus, it is clear that the plaintiff is not at all ready to purchase the suit property by paying the market value. Though the plaintiff notified his desire to purchase, the same is nothing but a pretension to cause harm to defendant No.1, in view of his failure to get the main relief sought in O.S.No.25/1989. The acts of omission and commission of the plaintiff amounts to forfeiture of his right of pre- emption.
19. The right sought to be enforced by plaintiff i.e., right of pre-emption is a weak right, as is clear from the ratio of the law laid in the aforesaid decisions by the Apex Court. In the matter of enforcement of such right, there is no equity in favour of the plaintiff and the Court need not 16 go out of the way by exercising discretion to help the pre- emptor. Even if the plaintiff had the right of pre-emption by virtue of decree passed in O.S.No.25/1989 (Ex.P1), the present suit having partaken the character of a suit for specific performance, the plaintiff is obliged in law, to plead and prove all the ingredients of such a suit. From the admissions of the plaintiff / PW1, noticed supra, it is clear that he is not ready and willing to pay the market value of `55,000/- and purchase the suit property.
20. In P.A.RAHIM AND ANOTHER Vs. P.K.RAVINDRAN ALIAS RAVICHANDRAN, (2005) 13 SCC 176, the respondent Nos.3 to 5 sold the suit property to the appellants, after ascertaining the unwillingness of respondent Nos.1 and 2, to purchase the same, though no notice in writing was given. The respondent Nos.1 and 2, sought a decree of declaration that the sale is invalid for failure to give notice in writing, in view of specific stipulation in the partition deed that an intimation of sale should be given to the other members of the Thavazhi (a branch of the family) 17 before selling the property to the stranger. Suit was instituted to declare the sale as invalid and for re-sale of the property in their favour. It was found that the respondent Nos.1 and 2, residing in the adjoining plot abutting the suit property were aware of the improvement made by the appellants. By referring to the decision in the case of INDIRA BAI Vs. NAND KISHORE, (1990) 4 SCC 668, it was held that plaintiffs impliedly gave up their right to purchase the property.
21. In the present case, despite being notified of the intended sale by defendant No.1, to meet his urgent legal necessities, the plaintiff did not quote the price nor state what the market value is. He has not shown readiness and willingness to purchase the property. Even after the property was sold for `55,000/-, as per Ex.D7, the plaintiff still maintained that the market value of the property is `16,000/- to `18,000/-. From the evidence, it is clear that the plaintiff is prepared to pay `25,000/- only. He has specifically stated that he is not ready and willing 18 to pay the price of `55,000/-. Thus, it is clear that there is mere pretence on the part of the plaintiff, to knock off the suit property for a value of not more than `25,000/-, which is not the market value, in view of the sale consideration of `55,000/- paid under Ex.D7. In view of the plaintiff's failure to quote the price and his unwillingness to purchase the property for the market value, he forfeited the right to purchase the suit property.
22. Findings recorded in the impugned judgments by the Courts below are pure findings of fact. The plaintiff by his own conduct has given up the right to purchase the suit property. The sale made by defendant No.1 in favour of the defendant No.2, vide Ex.D7 is not illegal. Thus, the suit and the appeal have rightly been dismissed.
For the foregoing discussion, the appeal is devoid of merit and hence is dismissed with costs.
Sd/-
JUDGE sac*