Rajasthan High Court - Jaipur
Sobhraj Mal And Ors. vs Mst. Kamla Devi on 1 September, 1975
Equivalent citations: 1975WLN(UC)360
JUDGMENT V.P. Tyagi, J.
1. Sobhrajmal and the other legal representatives of Tulsidas have filed this appeal against the judgment and the decree of the Additional District Judge No. 1 Jaipur City dated 18th January, 1973 decreeing the suit of respondent Mst. Kamla Devi for pre-emption.
2. Tulsidas and his son Sobhraj Mal purchased a portion of the disputed house from Geodilal and others who were the owners of that house. The sale-deed was executed on 31st December, 1969. It is admitted by the parties that before the sale of the portion of the house the owners did not give any notice under Section 8 the Rajasthan Pre emption Act, 1966 to any of the pre-emptors including the plaintiff Smt Kamla Devi. It is however admitted by the parties that before the sale had actually taken place the purchasar. Tulsi Das got a general notice published in a newspaper showing his intention to purchase the disputed property After about ten months from the date of the sale Smt. Kamla Devi filed a suit on 19th October, 1970 both against the purchasers and the sellers alleging that the price of the property as shown in the sale-deed was inflated, real price being Rs. 11,000/- and, therefore, she prayed that a decree in her favour may be passed declaring that she had a right of pre emption in respect of the suit property and that it may be directed that her name may be substituted as the purchaser of the said property in place of the defendants purchasers in the sale-deed.
3. Tulsi Das during the pendency of the suit died and, therefore, his legal representatives defendants No. 1/1 to 1/8 were brought on the record. The purchaser defendants in their written statements pleaded that the plaintiff was sounded by Tulsi Das before the sale had actually taken place and it was on the assurance given to the purchasers by Smt. Kamla Devi and her husband that after publishing a general notice they purchased the property for Rs. 17,000/. It was also averred that after the sale was completed the purchaser defendants spent something ten to eleven thousands rupees on the repairs of the property which was in dilapidated condition and it was at the fag end of the repairs that the plaintiff filed the suit for per-emption when she saw that the defendants had already invested a good deal of amount in the repairs of the house. The bonafides of the plaintiff were, therefore, challenged by the defendants and it was averred that the plaintiff is estopped from claiming a right of pre-emption in the circumstances of this case.
4. The defendants sellers also filed their written statement and averred that the price received by them from the purchasers was Rs. 17,000/-and not Rs. 11,000/- as pleaded by tae plaintiff. It was also averred that the plaintiff was aware of the sale but she did not indicate her desire to purchase the property before it was sold The purchasers after purchase of the disputed property carried out repairs in the property and it was all within the knowledge of the plaintiff. Therefore she was estopped by her own conduct to file the suit for per-emption.
5. As many as 7 issues were framed by the lower court. But the only question that has been agitated before this Court relates to issues No. 3 and 7 Issue No. 3 is in respect of the plea of estoppel raised by the defendants and issue No. 7 relates 10 the right of the defendants to realise the amount spent by them in the repairs of the house in case the right of pre-emption of the plaintiff is decreed by the Court.
6. Mr. Lekhraj Mehta appearing on behalf of the appellant urged that the trial court did not correctly understand the plea taken by the defendants-appellants. According to him it was pleaded in the written statement that before the sale actually took place Smt. Kamla and her husband Jambu Kumar were consulted by the prospective purchasers at various stages and were specifically asked if they had any desire to purchase this property as they had a right of preemption because Mst. Kamla Devi the owner of the part of the property did enjoy certain amenities in common with the seller of the property in dispute. But all the time Smt. Kamla Devi and her husband Jambukumar gave out to the prospective purchasers that they had no intention to purchase it and that they would not object if the defendants No. 1 and 2 namely Tulsi Das and Sobhraj Mal purchased the disputed property from defendants No. 3 to 7. In these circumstances Mr. Mehta argued that it was a case of waiver and not of estoppel but the learned Judge has not correctly understood the scope of the defendant's objection and, therefore, the decision of the trial court on issue No. 3 is obviously erroneous.
7. Learned Counsel appearing on behalf of the plaintiff respondent Smt. Kamla Devi urged that there is no evidence on the record to show that after the agreement of sale between the purchaser and the seller had taken place any offer was made to the plaintiff to purchase this portion of house and, therefore, the question of waiver cannot arise. It was also contended that the right of preemption can be curtailed only by giving a notice in writing under Section 8 of the Act by the seller and not by any one else and if it has not been done then no plea can be taken by the purchasers that the light of pre-emption was lost to the pre-emptor because she did not show her in intention to purchase the disputed property after a general notice was published by the purchasers signifying their intention to purchase the suit property.
8. This fact is not in dispute that under Section 8 of the Act no notice was given by the seller to any pre-emptor. It is also admitted that Smt. Kamla Devi had a tight of pre-emption in respect of the suit property as she is a co-sharer The controversy however revolves round the question whether the pre-emptor waived her right of pre-emption because before the sale actually took place the purchasers Tulsidas and his son Sobhraj Mal bad consulted Smt. Kamla Devi and she gave her consent to the prospective purchasers to enter into the bargain and purchase the disputed property from the owners of the suit property. This conduct of the plaintiff Smt. Kamla Devi that she not only not showed any intention to exercise her right of pre-emption but encouraged the defendant purchasers to complete the deal according to Mr. Mehta tantamounts to waiver and abandonment of her right of pre-eruption to the suit property in case it was purchased by Tulsidas and Sobhraj Mal.
9. In order to examine the said contention of Mr. Mehta about waiver of her right by the plaintiff, we shell have to examine the scope and the scheme of Section 8 of the Act. To safeguard the interests of the prospective purchasers as well as to avoid the multiple city of suits between the pre emptor or the pre-emptors where there are more than one, the legislature has introduced a provision in the Rajasthan Pre-emption Act, 1968 that if the seller serves a notice in writing in the manner prescribed under Sub-section (2) of Section 8 of the Act intimating his desire to sell his property for a specified sum mentioned therein, then it the pre-emptor does not exercise a right of pre-emotion then the pre-emptor thereafter shall be debarred from exercising that right and the sale would not be challenged on the ground that the pre emptor had better title to purchase the said property The legislature has also taken precaution to prescribe a mode for the service of the notice under Sub-section (1) of that Section and laid down that the notice shall be given through the civil court within the local limits of whose jurisdiction the property concerned is situate. The purpose of enacting this provision in the Act is obvious It safeguards the interest of all concerned viz; the purchasers the pre-emptor or pre-emptors & the sellers so that after the sale has taken place no body may thereafter claim preferential right to purchase the suit property and thus the purchaser, seller and the pre-emptor or pre-emptors may be saved from unnecessary litigation Another purpose of such a notice under Section 8 is that is discloses to the prospective purchaser the name or names of those persons who have a preferential claim to the property by invoking their right of pre-emotion. In order to ensure that a notice under Section 8 of the Act was served on the pre-emptor the legislature has prescribed a fool proof method so that no controversy thereafter be raised about the sale price fixed and the description of the property purported to be sold. If this procedure is adapted by the seller who proposes to sell his property then for two months of the receipt of such a notice if no steps were taken by the pre-emptor to purchase the property for the amount mentioned in the notice then she pre-emptor forfeits his right to pre-emption.
10. The argument of Mr. Mehta is that under Section 8 of the Act it is only the seller who, by giving a notice to the pre-emptor, can circumscribe his right of preemption and if the pre-emptor does not take any steps within two months from the receipt of such a notice to purchase the property then be forfeits his right to put forth his claim for preemption. But in the case of a prospective purchaser who cannot avail the provision of Section 8 to curtail the pre-emptor's right, the doctrine of waiver would be attracted if the pre emptor, after a notice from the purchaser, does not come forward to purchase the property and allows the purchaser to complete the sale in his favour. In this case, it is contended that the defendants-purchasers published a general notice to all the pre-emptors before the property was actually purchased by them and therefore in such circumstances it should be held that the plaintiff pre-emptor cannot now claim a right of pre-emption because the doctrine of waiver would stand in her way to do so.
11. I regret I cannot accept this plea of Mr. Mehta. The right that resides in the pre-emptor to be treated as a preferential purchaser can only be curtailed if the provisions of Section 8 of Act are resorted to by the seller That right which has bean vested in the seller by virtue of the provisions of law cannot be exercised by the purchasers of the property Even if a purchaser issued a general notice signifying his intention to purchase the property, the law does not cast any duty on the pre-emptor to give any response to such a notice and put forth his preferential claim to purchase such property. There is no statutory duty for a pre-emptor to negotiate with the purchases of the property on the information received from the prospective purchaser. It is another thing it the pre-emptor enter into an agreement with the prospective purchaser that he would not exercise his right as a pre-emptor if the property is purchased by him. In that event it is open to the purchaser to put forth his plea that the pre-emptor had waived his pre-emptory right in his favour. This question whether in this particular case the plaintiff did surrender his right in favour of the defendant purchasers, will be discussed in the later part of the judgment and it will be seen whether the purchasers can enforce that agreement in the light of the circumstances that have come on the record.
12. In the present case, it is urged by Mr. Mehta that purchaser Tulsidas consulted Mst. Kamla Devi and her husband who used to look after her interest on various occasions before the sale had actually taken place in his favour and every time Smt. Kamla Devi assured Tulsidas that she will have no objection if the property was purchased by him There is nothing on the record to show that this type of consultation bad taken place between Tulsidas and Smt. Kamla after an agreement to sale between the defendant-purchasers and defendant-sellers had come into existence. Not a single witness produced by the defendants, has deposed that after the agreement between the purchaser and the sellers was completed, Smt Kamla was consulted by Tulsi Das and the that sale price fixed between the parties was communicated to Mst. Kamladevi.
13. The right of pre-emption is not a right to the thing sold but a right to the offer of a thins about to be sold. This right is called a primary or inherent tight. The pre-emptor has a secondary light or a remedial right to follow she thing sold It is a right of substitution but not of repurchase and by the recognition of the right the pre-emptor is deemed to have entered the entire bargain and ultimately steps into the shoes of the original vendee. See Bishan Singh and Ors. v. Khazan Singh and Anr. . The primary right claimed by the pre-emptor as explained by the Supreme Court, undoubtedly resides in the pre emptor even before the sale has taken place, but the question in whether he can waive that right in favour of the prospective purchaser even before any agreement between the seller & the purchaser to sell the property had actually taken place. In Muhammed v. Muhemmed Ali and Anr. AIR 1926 Lah 243 it has been held that refusing to buy the property on the ground that he had no money can be considered to have waived his right to pre-emptor but the learned fudge his specifically laid down that this waiver can take effect only after an agreement between the purchaser and the seller had been completed. This view finds support from the judgment of the Madhya Pradesh High Court in Mishrilal Hazari Lal v. Laxminarayan Kishan Lal and Anr. wherein his Lordship Dixit J has held that in a suit for pre-emption of a house, to support the plea of waiver of his claim to pre-empt by the plaintiff it is incumbent on the vendor and the vendee to establish that they had concluded an agreement of sale and the plaintiff was approached and asked so purchase the house for the consideration for which the vendee was going to purchase the house.
14. There is not an iota of evidence that after the agreement for sale between the purchaser and the seller was concluded and the price was fixed between them, an approach was made to Smt. Kamla Devi to purchase the portion of the house for the price settled between the purchaser and the seller. If no sale price was fixed between the put chasers and the seller and the pre-emptor was consulted by the purchaser to enter into a transaction of sale with the owner of the property and if the pre-emptor did not object to such a proposal then it cannot be said that the pre-emptor had waived the right of preemption in favour of the prospective purchasers. There is no evidence that after the agreement of sale was concluded between the vendors and the vendees an offer was made to the plaintiff to purchase the disputed property for the price settled between the prospective purchasers and the owners of the house. In the absence of such evidence the plea of waiver raised by the purchasers cannot be accepted.
15. The next question that has been agitated before this Court is about the payment of the amount invested by the defendant purchasers in the repairs of the disputed property purchased by the defendants. In the written statement it was pleaded by the defendant purchasers that they had spent an amount something about 10 to 11 the issued in repairs. When the defendant entered into the witness box to prove the amount, reliance was placed by the defendant on certain documents which were Ex. A1 to Ex. A65 and also a copy in which the accounts for the payment of labour was maintained The learned Judge held that the suit was filed by the plaintiff of 17th October, 1970. An application for issuing an injunction was made by the plaintiff in the court on 13th November, 1970, The court after hearing both the parties dismissed the application for temporary injunction mentioning that if the defendants invested any amount in the repairs of the house they will do so at their own risk. It is admitted by the parties that the defendant purchasers put in their appearance through their counsel for the first time in the court on 17th December, 1970. D.W. 2 Sobhraj Mal in his cross-examination has however admitt11ed that he came to know in the month of October that the plaintiff had filed a suit but in the next breath he said that by that time the work of the repairs was almost on the completion which means that by that time lot of repairs work hid been completed. There is no dispute between the parties on this fact that the repairs were actually started by the defendants from 31st August, 1970. Mr. Mehta urged that Sobhraj Mal had no doubt stated that he came to know about the suit in the month of October but he made that statement on the basis of his memory alone. If this statement is read in the light of the next sentence that by the time he came to know of the suit the repairs were almost on their completion then the month of October cannot be accepted when he acquired knowledge about the suit. By the end of October only Rs. 3,000/- were spent in repairs and therefore in the opinion of Mr. Mehta, it is difficult to say that by October the repairs were nearing completion It was on the 17th December, 1970 that the counsel of the purchasers had for the first time put in his appearance before the court. In these circumstances Mr. Mehta vehemently argued that it was not open for the for the plaintiff to say that the defendants bad no right to invest the money for making repairs in the house as it was within their in knowledge that some one bad preferential claim to the house in dispute by filing a suit for pre-emption On the other hand it is urged by Mr. Mehta that the investment was made in repairs by his clients in a bonafide manner because the defendants had received a cot conform the Municipality to repair the dilapidated portion of the house which was causing danger to the neighbours including the plaintiff.
16. From the documents Ex. A.1 to Ex. A65 it is apparent that the defendants had invested Rs. 7334. 25 for the repairs of the house upto 17th December, 1970. It is contended by Mr. Mehta that the defendants were compelled to complete the repairs which they had started and, therefore, the rest of the amount was also spent by them, under necessity The argument advanced on behalf of the plaintiff respondent is that according to his own admission the defendant Sobhraj Mal had come to know that a suit for preemption bad been filed by the plaintiff respondent in the month of October and, therefore, if after knowing that the better claimant had come in the field the defendants persisted to invest money on the repairs, it cannot be said that it was a bonafide investment and, therefore, even if any claim of the defendants is accepted by the court for the payment of the amount spent by them in the repairs of the property, they cannot claim more than Rs. 3378.72 which the defendants had spent according to their own account books by the end of October, 1970.
17. The learned trial court refused the claim of the defendants to the amount of repairs on the ground that the defendants bad not spent this amount in good faith The claim of the defendants is based on the provision of Section 51 of the Transfer of Property Act which provides that when the transferee of immoveable property, believing in good faith that he is absolutely entitled there to, & he is subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee at the then market value thereof, irrespective of the value of such improvement.
18. It may be recalled that before purchasing the property the purchaser-defendants had published a general notice signifying their intention to purchase that property and the plaintiff did not raise any objection till the filed the suit and, therefore, it was natural for the defendant purchasers to think that they were absolutely entitled to hold that property and as such they had a right to make improvement in the property by way of repairs. It was only on 17th October, 1970 that the plaintiff put her claim as a pre emptor. It may be noticed here that she did not even care to inform the defendants purchasers by serving them with a notice that she intended to purchase the property to put forth her claim as a pre-emptor and, therefore, they should not spend anything in re pairing the property Even after filing the suit she took about a month to move the court for getting the interim injunction against the purchasers. In these circumstances the argument of the purchasers that the plaintiff herself acted in a manner to allow the purchasers to think that they were the absolute owners of the property purchased & had a right to repair the dilapidated property before a claim was filed by the plaintiff in the court for getting the interim injunction against the purchasers. In these circumstances the argument of she purchasers that the plaintiff horse facted in a manner to allow the purchasers to think that they were the absolute owners of the property purchased and had a right to repair the dilapidated property before a claim was filed by the plaintiff in the court for getting a decree of pre-emption, has a considerable force and in such circumstances the purchasers are justified to claim the amount of repairs from the plaintiff till the purchasers came to know about action of the plaintiff of filing a suit for pre emption The plaintiff Smt. Kamla Devi undoubtedly resides in same house. There is evidence to show that she not only did not resis the repairs undertaken by the purchasers but she also helped the defendants in carrying out the work of repairs by lending certain articles which assisted the defendants in effectively doing their job of repairs The pre-emptor no doubt can file a suit for pre-emption upto the last day of the limitation period but if the pre-emptor acts in a manner which does not discourage the purchasers from taking certain steps which might increase the burden of the pre-emptor then in that event the pre-emptor cannot register his grievance that the purchaser should not be allowed to be reimbursed for the expenses incurred by them in making improvements in the property purchased by them. This right of the purchaser that he should be reimbursed for the expenses incurred by him in making improvement in the property is no doubt subject to one condition and it is that after the purchaser came to know that the pre-emptor has filed a suit for pre-emption the purchaser should not further invest the none in carrying out improvement in the property. If he does so it will be at his own risk. It is in this light that I have to adjudge the claim of the purchasers for the amount spent by them in repairing the property.
19. Sobhraj Mal D.W. 2 has no doubt stated in his cross examination that this fact came to his knowledge in the month of October that the suit was filed by Smt. Kamla Devi but in the very next breath he has stated that by the time he came to know of the filing of the suit major part of the repairs had been completed. As discussed above the purchasers' knowledge of the suit filed by the plaintiff in the month of October cannot be accepted as the next sentence that Sobhraj Mal was then nearing the completion of the repairs cannot property be explained if October is taken as the month when the witness came, to know of the fact that a suit had been filed by the plaintiff. However this fact cannot be denied that on 17th December, 1970 the purchasers had put in their appearance before the court through their counsel and, therefore, the knowledge of the suit on that day can be imputed to the purchasers. It is admitted by the counsel for both the parties on the basis of the accounts produced by the defendant that by 17th December, 1970 the purchasers had actually invested Rs. 7034 25 in the repairs The statement of Sobhraj Mal was recorded on 7th September, 1972 almost two years after the filing of the suit and, therefore, it was not possible for him to state on the basis of his memory the exact time when he came to know of the plaintiff's suit and, therefore, I find it difficult to accept the stray answer given by Sobhraj Mal in his cross examination that be came to know of the suit month of October. The conduct of the plaintiff in this connection can also be taken note of by this Court that she purposely moved the court to restrain the defendants from making further repairs on 13th November, 1970 after about a month of the filing of the suit and allowed the defendants to pursue their repairing job. No prompt action was taken by the plaintiff to see that the defendants were restrained an early as possible to carry out further repairs in the house. For the first time the defendants appeared before the court on 17th December, 1970 and, therefore, it shall be taken that whatever repairs were completed by the purchaser defendants upto 17th December, 1970, it was done by them in good faith taking themselves to be the absolute owner of the property which was acquired by them through a sale after signifying their intention by publishing a general notice in the paper. In these circumstances this Court is inclined to hold that whatever amount was spent by the purchasers upto 17th December, 1970, they were entitled to get it from the plaintiff because ultimately the benefit of that expenditure shall be enjoyed by the plaintiff After examining the documents brought on the record both the learned Counsel for the parties have arrived at a figure of Rs. 7034 25 which was spent by the purchasers upto 17th December, 1970. Any amount spent, thereafter by the purchasers on the repairs of the house was done by them at their own risk and, therefore, they cannot claim that amount from the plaintiff.
20. It was next urged by learned Counsel for the plaintiff-respondant that the word 'improvement' as used in Section 51 cannot include the repairs of the building and, therefore, the purchasers defendant cannot claim the amount spent in repairs under Section 51 of the Transfer of Property Act.
21. The word 'improvement' in my opinion would cover anything done to the property which results in increasing its value. Thus the repair of a house which is in a dilapidated condition is definitely an improvement. The Lanore High Court in Sheo Charan V. Abdul Hasan and Ors. AIR 1929 Lah 825 endorses this view. I, therefore, do not find any substance in this argument raised by learned Counsel for the respondent.
22. The result is that the appeal of the appellants is partly allowed. While maintaining the decree for pre-emption passed to favour of the plaintiff respondent, I hold that the plaintiff along with the sale price of the house shall deposit within three months Rs. 7034/25 as repair charges and it is only then that the name of the plaintiff shall be substituted in the sale-deed in plate of the original vendee. No order as to costs.