Madras High Court
This Application Has Been Filed By The vs Damodar Lal (Deceased) By Lrs And Others ... on 29 June, 2012
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29/06/2012 CORAM THE HON'BLE MR.JUSTICE V.PERIYA KARUPPIAH O.A.No.348 of 2011 in C.S.No.254 of 2011 ================================================ C. RABIA BEGUM . C. ABDUL ALEEM [ BOTH ARE RESIDING AT 3/7 VENKATACHALAM ST PURASAWAKKAM, CHENNAI 7 ] VS C. BHEEMRAJ MUTHA JAIN 136 NAINIAPPA NAICKEN ST PARK TOWN CHENNAI 3 ================================================ ORDER
This application has been filed by the applicants/plaintiffs praying for the grant of an interim injunction restraining the respondent/ 12th defendant, his men, agents and representatives or others from altering the physical features of the suit 'B' Schedule property.
2. Heard Mrs.Chitra Sampath, learned counsel for the applicants/plaintiffs and Mr.S.B.Fazluddin, learned counsel for the respondent/12th defendant.
3. The learned counsel for the applicants/plaintiffs would submit in her argument that the applicants have filed the suit to enforce their pre-emptive rights which were granted to the Legal Representatives of one Late C.Mohamed Siddique and Mrs. C.Safia Bi in the judgment and decree dated 30.04.1985 passed in C.S.No.570 of 1978. She would further submit in her argument that the 'B' Schedule property of the suit is part and parcel of A-Schedule property. The said A-Schedule property is mentioned as Item No.1 of 'A' Schedule in the said suit C.S.No.570 of 1978 and therefore, the judgment and decree passed by the Court in the said suit would be binding upon the parties to the suit as well as to the properties compromised. She would also submit that the said compromise passed in the said suit on 30.04.1985 would allot two-third share to Late C.Mohammed Siddique and one-third share to late C.Safia Bi in the Schedule of Property in the present suit. She would also submit that clause 8 of the compromise decree would go to show that if any of the parties is anxious to sell their share, they should offer the same by writing to the other sharers and if no other sharer purchase the property, then only they could sell the same to third parties. She would also submit that while passing of final decree on 06.04.2010, a suit in C.S.No.98 of 1991 was filed by some of the legal heirs of C.Mohammed Siddique. The court observed that it was open to the plaintiffs to enforce their right of pre-emption by way of separate proceedings.
4. She would also submit that the Defendants 1 to 9 in the suit are the Legal Representatives of Late.C.Mohammed Siddique and defendants 10 and 11 are the Legal Representatives of Late C.Safia Bi and they are bound by the earlier decree passed in C.S.No.570 of 1978. The said heirs are about to sell their shares in B-Schedule Property in this suit and they cannot sell their shares without offering the same to the applicants, who are the other sharers. She would also submit that the plaintiffs immediately issued notice to the defendants, to sell their shares to them, on 10.04.2010 to which they said that there is no law to exercise such a pre-emptive rights against defendants 1 to 11. She would also submit that the applicants, therefore, caused paper publication on 25.05.2010. However, the defendants 1 to 11 have sold their shares to the 12th defendant which is against the sanctity of the decree. She would also submit that the right of preemptive as envisaged in the said decree would bind over the parties in the said decree, since it was an essence of the compromise decree. she would also submit that the parties are bound by the compromise which would be amounting to an agreement not to sell their shares to third parties without offering it to the co-sharers of the property. She would also submit that the cause of action would arise only after effecting the sale and therefore, the suit has been filed by the plaintiffs seeking for declaration that the plaintiffs are entitled to enforce their right of preemption to buy the shares of the defendants 1 to 11 in the suit B-Schedule Property as per compromise decree in C.S.No.570 of 1978 dated 30.04.1985 and for direction to the defendants 1 to 12 to jointly execute a sale deed in respect of the suit 'B' Schedule Properties in favour of the plaintiffs, after receiving a sum of Rs.1,40,22,400/- and on their failure, and on the plaintiffs depositing the said sum, the court itself may execute the sale deed, through its officer in respect of the suit 'B' Schedule Property.
5. She would cite a judgment of the Honourable Apex Court reported in (2001) 6 SCC 330 (Mattoo Devi (Smt) Vs. Damodar Lal (Deceased) by LRS and others ) for the principle that the right of pre-emption is an incidence of property in Muslim law and attaches to the property itself and is not a mere personal right of re-purchase from the buyer .
6. She would also submit that the approval of the right of presumption would be gone into at the time of trial and if, in the meanwhile, the respondent (12th defendant) is indulged in putting up construction in the suit property, it would change the character of the said property and the respondent may claim possession and it would create complication in the suit. She would also submit that the respondent will not be prejudiced, if an order of injunction is granted against the respondent in any way putting up construction in the suit property till the disposal of the suit, per contra, the applicants will be seriously prejudiced, if interim injunction is not granted in favour of the applicants and respondent/12th defendant by putting up constructions in the suit property and thereby, changes the nature of the suit property. Therefore, she would also submit that the balance of convenience also is in favour of applicants in granting an order of injunction in favour of the applicants. She would also submit that at an earlier point of time, this Court, on the basis of prima facie case has granted an ad interim injunction which was subsequently not extended since the respondent /caveator was not given any notice due to over sight. Therefore, she would request the court that the ad interim injunction originally granted by this court may be made absolute by granting an order of temporary injunction.
7. The learned counsel for the respondent would submit in his argument that the right of pre-emption is out-dated and the said law would empower only upon muslim persons. He would also submit in his argument that the law as to pre-emption is yet to be enacted in Southern States and in the absence of such law, the custom will prevail. He would also submit that in para-9 of the compromise decree, the parties were asked to live jointly and dispose jointly in 2:1 ratio. He would also submit that the right of pre-emption is a personal right which would not devolve upon the heirs. He would also submit that the said provision in the compromise decree would give the right of pre-emption, if any, whenever the jointness is continuing and once an obstruction is taken place by way of final decree, the status of co-sharers ends and consequently, the right also ends. He would therefore, submit that there would not be any right of pre-emption accrued to the applicants/plaintiffs as sought for by them flowing from the said compromise decree.
8. The learned counsel for the respondent would further submit in his argument that in the absence of any law to enforce the right of pre-emption, the custom prevail in the society whether the parties belong to muslim or non-muslim, can be exercised. He would also submit that the parties themselves have sold the properties without exercising the right of pre-emption in respect of other properties and therefore, the parties themselves have waived the right of pre-emption in the suit properties. Therefore, the applicants cannot ask for the sale of the shares of the defendants 1 to 11 to them. He would further submit that in the final decree passed in C.S.No.98 of 1991 dated 06.04.2010, the suit property, which was referred to as Item - 1 of 'A' Schedule to an extent of 4248 = sq.ft., measuring 75 ft east - west on both sides and 56> ft. north - South on both sides, totalling about 4248= sq.ft., were allotted to the defendants 1 to 11 herein ( who were plaintiffs 3 and 4, D3, D5 to D7, D12, D13, D15, D26 and D27 in C.S.No.98 of 1991) and the said portion was located on the southern extreme of the entire property in 'A' Schedule and the applicants/plaintiffs (who were defendants 27 and 28 in C.S.No.98 of 1991) were allotted the northern extreme portion in the 'A' Schedule property to an extent of 2,295 sq.ft. measuring 75 ft east - west on both sides and 30 feet 7 inches north - south on both sides and there were two middle portions allotted to other parties to the suit and therefore, the suit property is not lying adjacent to the property allotted to the applicants in the final decree. He would also submit that there would not be any vicinage of the property to the applicants so as to exercise right of pre-emption, even if it is available to the applicants. He would present a rough sketch in support of his argument in order to show the lie of allotted properties.
9.The learned counsel for the respondent would cite a judgment of Honourable Apex Court reported in AIR 1954 SC page 417 (Shri Audh Behari Singh Vs. Gajadhar Jaipuria and others) for the principle that the right of pre-emption is not recognised in the Madras Presidency at all even amongst Muslims except on the footing of a customs. He would further submit in his argument that a right of pre-emption is a personal right which would not descend to heirs. He would rely upon a judgment of Bombay High Court reported in 1914 AIR Bombay 183 (Bhatt Dahyabhai Motiram and another Vs.Pandya Chunilal Keshordas and others) in support of his arguments. He would also submit that when the properties have been divided into separate entities, the right of pre-emption under Mohammedan Law will not subsist on behalf of one of the properties merely by reason of vicinage. He would cite a judgment of Allahabad High Court reported in the ILR 15 Allahabad (1893) 104 (Abdul Rahim Khan Vs. Kharag Singh and another) in support of the said principle. He would also submit that even otherwise, vicinage is insisted for the exercise of right of pre-emption and it would not be available to the applicants in view of the said principle laid down by Allahabad High Court. He would also submit that the applicants, who were allotted the northern extreme portion, cannot stretch over their hands over the two distinctive portions allotted to some other persons and to the suit property allotted to the defendants 1 to 11 in the final decree. He would also submit that the applicants/plaintiffs can claim their pre-emptive rights even if it is available within a period of 60 days after the notice. The applicants did not issue notice to other parties to the final decree and the mere partial demand made by them after the lapse of 60 days cannot be made available to the applicants. He would also submit that while the applicants want to exercise the right of pre emption, they have to implead other parties to the final decree and their options are also to be ascertained and then only the right of pre-emption, even if it is available to the applicants, will be granted. He would further submit that the applicants are prima facie not entitled to the right of pre-emption in view of facts and circumstances of the case and also the legal principles laid down by the Honourable Apex court and various High Courts.
10. The learned counsel for the respondent would, therefore, submit that the injunction sought for against the vendee, the respondent herein, who is a non-mohammedan under the guise of pre-emptive law cannot be sustained. He would further submit that even if there is any prima facie case, the respondent who is the vendee of the property from the defendants 1 to 11 is entitled to enjoy his property as he pleases and if any injunction is granted from putting up new constructions that would be amounting to prohibiton of his right to enjoy the property. He would also submit that the balance of convenience is only in favour of the respondent and in favour of refusing the grant of injunction. Therefore, he would request that the application seeking for grant of temporary injunction may be dismissed.
11. I have given anxious thoughts to the arguments advanced on either side.
12. The suit has been filed by the applicants/ plaintiffs for declaration of pre-emptive right available to them under Mohammedan Law in respect of the suit 'B' Schedule property and in the exercise of such pre-emptive right, they are ready to purchase the suit properties from the defendants 1 to 11 for sale consideration mentioned in the plaint for better understanding. The relief sought for in the plaint is extracted here under:
a) declaration that the plaintiffs are entitled to enforce their right of pre-emption to buy the shares of the defendants 1 to 11 in the suit "B" schedule property as per the compromise decree in C.S.No.570 of 1978 dated 30.04.1985
b) Consequentially direct the defendants 1 to 12 by a decree for Mandatory injunction to jointly execute a sale deed in respect of the suit "B" schedule property in favour of the plaintiffs herein, after receiving the sum of Rs.1,40,22,400/-, and on their failure, and on the plaintiffs depositing the sum of Rs.1,40,22,400/- this Hon'ble Court shall direct the Asst. Registrar of High Court of Madras to execute the sale deed in respect of the suit "B" schedule property in favour of the plaintiffs and
c) for costs
13. The applicants/plaintiffs had laid their claim in the transfer of the suit property by the defendants 1 to 11 on the strength of the pre-emptive right accrued to them through law. However, it has been argued by the learned counsel for the respondent that the right of pre-emption was an old law and it is not made available to the Madras Presidency Region. The judgment of the Honourable Apex Court reported in AIR 1954 SC 417 (Shri Audh Behari Singh Vs. Gajadhar Jaipuria and others) is relied upon by the respondent for that purpose. The relevant portion is extracted here under:
10. Since the establishment of British rule in India, the Muhammadan law ceased to be the general law of the land and as pre-emption is not one of the matters respecting which Muhamadan law is expressly declared to be the rule of decision where the parties to a suit are Muhammadans, the courts in British India administered the Muhammadan law of pre-emption as between Muhammadans, entirely on grounds of justice equity and good conscience.
Here again there was no uniformity of views expressed by the different High Courts in India and the High Court of Madras definitely held that the law of pre-emption, by reason of its placing restrictions upon the liberty of transfer of property, could not be regarded to be in consonance with the principles of justice, equity and good conscience: Vide - 'Krishna Menon V. Keshavan', 20 Mad 305 (D). Hence the right of pre-emption is not recognised in the Madras Presidency at all even amongst Muhammadans except on the footing of a custom.
14. However, the learned counsel for the plaintiffs would rely upon the judgment of Honourable Apex Court reported in 2001 6 SCC 330 (Mattoo Devi (Smt) Vs. Damodar Lal (Deceased) by LRS and others) for the principle that right of preemption is recognised throughout India and it was considered to be a right attached to the property itself and it is not a mere personal right of re-purchase from the buyer. The relevant portion in the said judgment was also quoted from the judgment of Honourable Apex Court reported in AIR 1954 SC 417 (Shri Audh Behari Singh Vs. Gajadhar Jaipuria and others), which is extracted as follows:
23. The correct legal position must be that when a right of pre-emption rests upon custom it becomes the 'lex loci' or the law of the place and affects all lands situated in that place irrespective of the religion or nationality or domicile of the owners of the lands except where such incidents are proved to be a part of the custom itself.
15. On a careful understanding of the judgment of the Honourable Apex Court, I could see that the right of pre-emption is a right to go with the property and it may also descend on the legal heir. The judgment of Honourable Apex Court has distinguished the judgment of Bombay High Court reported in ILR 38 Bombay 183 (1914) (Bhatt Dahyabhai Motiram and another Vs.Pandya Chunilal Keshordas and others).
16. It is also brought to the notice of the Court that by virtue of the judgment of Allahabad High Court, once the properties have been divided, the right of pre-emption cannot be exercised even by the reason of vicinage. The relevant portion of the judgment of Allahabad High Court reported in ILR 15 Allahabad 104 (Abdul Rahim Khan Vs. Kharag Singh and another) would be as follows:
"According to the Muhammadan law a partner has a right of pre-emption in villages or large estates. But a neighbour cannot claim such right on the ground of vicinage." We have examined the judgment and find that it fully bears out the head note cites to us. In the present instance the appellant was really no more than a neighbour, and we have not been referred to, nor have we ourselves found, any authority in the Muhammadan law which gives such a neighbour a right of pre-emption in a distinct and adjoining mahal solely on the ground of vicinage.
17. On the foot of the aforesaid judgment, it was argued by the learned counsel for the respondent that there was no pre-emptive right flowing by the reason of the division of the property under the final decree in C.S.No.98 of 1991 and that too, the properties allotted to the plaintiffs in that suit was on the northern extreme and to the defendants 1 to 11 was in the southern extreme and in between those two portions, there are two other separate portions allotted to other persons. Based upon this point, the learned counsel for the respondent submitted that the plaintiffs have no prima facie case for seeking an interim injunction.
18. However, it was brought to the notice of this court that in a compromise decree entered into between the parties in C.S.No.98 of 1991, the suit property was allotted to the defendants 1 to 11 herein, ( plaintiffs 3 and 4 and defendants 3, 5, 6, 7 , 12 , 13, 15, 26 and 27 in that suit) ordering with a rider that it was subjected to the right to pre-emption of the defendants 28-31 of that suit, in which the plaintiffs were figuring as D-28 and D-29. Therefore, it was argued that it cannot be said that sales executed by the defendants 1 to 11 in favour of the respondent was not subjected to the law of pre-emption .
19. No doubt, the property was allotted to the defendants 1 to 11 herein in the final decree passed in C.S.No.98 of 1991 with a liberty given to the plaintiffs herein ( who were defendants 28 and 29 in that suit ) to work out their right of pre-emption, if available in law. Therefore, the property allotted to the defendants 1 to 11 herein was subjected to the right of pre emption to be decided in the suit. Whether the right of pre-emption available to the applicants/plaintiffs is a question to be decided in a full-fledged trial. The applicability of a right of pre-emption through law or custom as found by the Honourable Apex Court AIR 1954 SC 417 (Shri Audh Behari Singh Vs. Gajadhar Jaipuria and others) has also to be seen coupled with the liberty given to the applicants in the final decree. The right of pre- emption to the vicinage has also to be looked into in the trial. With the support of the evidence, all these points have to be considered in a full-fledged trial only. When the property has been allotted to the defendants 1 to 11 through the final decree subject to the liberty to work out the right of pre-emption of the applicants and others, then I could see a prima facie case shall be decided only in the suit. At this stage, this court cannot reject the claim made in the suit on the basis of the final decree passed in C.S.No.98 of 1991 by holding that there was no prima facie case when it is actually to be decided in the suit. In such circumstances, if the respondent, who is in possession of the part of the building, namely, the suit property, is taking steps to alter or demolish (or) putting up any other constructions, the entire suit property will be changed. Moreover, the cost of construction likely to be incurred by the respondent could have been an issue to be decided. In case, the plaintiff's case is upheld in the said construction, the issues in between parties will be made further complicated.
20. The respondent has not come forward with the plea of relinquishing expenditure for the alteration likely to be made in the suit property. Therefore, I could see that the prima facie case is seen in favour of the applicants only if the respondent is not really prohibited by an order of interim injunction.
21. In an earlier occasion, this court on 08.04.2001, found that the grounds on which the defendants refused to sell the properties to the plaintiffs was not considered to be reasonable, and an ad interim injunction was granted for 3 weeks. However, the said ad interim injunction was vacated, since the caveator was not given with notice as obliged under law. Now, the respondent was given sufficient opportunity and argument were heard and it was found that a prima facie case has been made out by the applicants. It has also been found that further complications would be caused, if the respondent is not prohibited from putting up construction. Therefore, I could see that the balance of convenience is also in favour of the applicants and in favour of granting an order of temporary injunction. Unless the dispute regarding the pre-emption right of the plaintiffs is solved in the suit, it is not permissible for the respondent/defendant-12 to proceed with constructions in the said property, provided the plaintiff's claim are dis-allowed. Therefore, there would not be any irreparable loss likely to have caused to the respondent, if he is restrained from putting up any constructions. Therefore, I am of the considered view that the applicants/plaintiffs are entitled to temporary injunction as sought for in the application, pending disposal of the suit.
22. Accordingly, the application filed by the applicants/plaintiffs seeking for temporary injunction against respondent/12th defendant restraining him from putting up any constructions in the suit property is ordered, pending disposal of the suit. No costs.
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