Bangalore District Court
D. Nagaraju vs Mr. R.Shama Sunderraju on 22 November, 2019
IN THE COURT OF THE LXXIV ADDL. CITY CIVIL AND
SESSIONS JUDGE MAYOHALL UNIT, BENGALURU
(CCH75)
Dated this 22nd Day of November 2019
PRESENT:
Sri. MOHAMMED MUJEER ULLA C.G.B.A. LL.B.,
LXXIV Addl. City Civil and Sessions Judge, Bengaluru.
ORIGINAL SUIT NO.25699/2007
PLAINTIFF: D. NAGARAJU
Aged about 53 years
S/o. Late. S.V.Ramaraju
R/at: No.11, 1st Floor
2nd Cross, Annaiappa block
Kumara Park West
Bengaluru - 560 020.
(M/S. JAYPEE ASSOCIATES - ADVOCATE
FOR PLAINTIFF)
V/s
DEFENDANTS: 1 Mr. R.SHAMA SUNDERRAJU
Aged about 56 years
S/o. Late. S.V.Ramaraju
R/at: Flat No.2
Navami Kaveri Apartmet
Behind Kamakshipalya Police
Magadi Main Road
Bengaluru - 560 079
2
OS.25699/2007
2 MRS. ANNAPURNA .C
Aged about 46 years
W/o. Mr. S.Nagaraju
R/at: No.16/1 (New No.1/2)
1st Floor, 7th Cross
Kumara Park West
Bengaluru - 560 020.
SRI. N.AMARESH - ADVOCATE FOR D2
Date of Institution of the suit 02.04.2007
Nature of the Suit (Suit on pronote, suit for
declaration and possession, suit for DELARATION
injunction, etc.)
Date of the commencement of recording of
25.04.2017
the Evidence.
Date of pronouncement of Judgment 22.11.2019
Year/s Month Day/s
Total duration
/s
12 07 20
JUDGMENT
Plaintiff has filed the instant suit against defendants for the relief of declaration to declare that, he is having pre emptive right to purchase the suit property, mandatory injunction directing the defendants to execute the sale deed 3 OS.25699/2007 of suit property in his favor for consideration of Rs.31,50,000/ (Rupees Thirty One Lakhs Fifty Thousand Only), to put him in possession of the suit property and for costs.
FACTS OF THE CASE:
2. Plaintiff and 1st defendant are the brothers. They are the sons of Late. S.V.Ramaraju. Late. S.V.Ramaraju acquired the residential premises bearing Property No.11, situate at 2nd Cross, Anniyappa Block, Kumara Park West, Bengaluru comprising of 3 residential tenements, one at the ground floor and two at the 1 st floor under the Registered Partition Deed dated:13/12/1954. Plaintiff, 1st defendant and their father S.V.Ramaraju effected partition of the said residential premises under the Registered Partition Deed dated:04/01/1989. In the said Partition, the residential house at ground floor fell to the share of 1 st defendant, residential premises on rearer portion of 1 st floor fell to the share of Late. S.V.Ramaraju and the front portion of 1 st floor 4 OS.25699/2007 with garage and staircase room at the ground floor fell to the share of plaintiff. Plaintiff contends that, he acquired the rearer portion of 1st floor from his father. Therefore he became the absolute owner of 2 residential tenements at the 1st floor. He contends that, in the Registered Deed of Partition dated:04/01/1989 common passages were provided for the use of all the sharers. Therefore, at the time of making the said deed of partition, it was mutually agreed by the sharers that, to maintain the privacy of the family, the right of preemption is to be given to the sharers to preserve the family property. Accordingly in para No.13 of the Deed of Partition, it has been specifically stated that, "none of the parties shall be entitled to sell, mortgage or otherwise deal with his share allotted to a stranger unless it is offered first to the other parties." Plaintiff contends that, the ground floor and 1 st floor of the residential premises forms a compact block. If any of the sharer sold the property to the outsiders, it would 5 OS.25699/2007 cause lot of problems in using the common passage and staircase. He contends that, in the year 2006, he came to know that, his brother, the 1st defendant was intending to sell the suit property. After he came to know the said fact, he issued Notice dated:07/02/2006 to the 1 st defendant stating that, he was willing to purchase the suit property.
After the receipt of the said notice, 1st defendant given reply dated:25/02/2006 stating that, he was ready to sell the suit property to him. In the reply the 1 st defendant has not noted the market value of the suit property. Therefore after receipt of the reply dated:25/02/2006, he issued rejoinder dated:09/03/2006 to 1st defendant and offered to purchase the suit property for Rs.20,00,000/ (Rupees Twenty Lakhs Only). 1st defendant sent reply dated:18/03/2006 rejecting his offer. In the reply, the 1 st defendant has stated that, he was ready to sell the suit property for Rs.54,00,000/ (Rupees Fifty Four Lakhs Only). Plaintiff contends that, the offer made by the 1st defendant was not within his budget. 6
OS.25699/2007 Therefore he did not pursue the matter. He contends that, on 29/05/2006 1st defendant sold the suit property to 2nd defendant for a sum of Rs.31,50,000/ (Rupees Thirty One Lakh Fifty Thousand Only). Before execution of the sale deed to 2nd defendant, 1st defendant has not given offer to him (plaintiff) to sell the suit property for a sum of Rs.31,50,000/. Therefore 1st defendant in gross violation of the right of preemption reserved in the Deed of Partition dated:04/01/1989 has sold the suit property to the 2 nd defendant. Plaintiff contends that, after he came to know about the Sale Deed dated:29/05/2006, he issued Notice dated:20/06/2006 to defendants expressing his intention to purchase the suit property for a sum of Rs.31,50,000/. 1 st defendant received the said notice without demur. After receipt of notice, 2nd defendant sent reply dated:03/07/2006 denying the right of preemption. Plaintiff contends that, defendants 1 & 2 colluding with each other have made the Registered Sale Deed 7 OS.25699/2007 dated:29/05/2006 for a sum of Rs.31,50,000/ to defeat his preemptive right of purchasing the suit property. Plaintiff contends that, 1st defendant who demanded Rs.54,00,000/ to sell the suit property to him cannot sell the suit property to 2nd defendant for a sum of Rs.31,50,000/ without giving offer to him to purchase the said property for Rs.31,50,000/. Therefore the Sale Deed dated:29/05/2006 executed by 1st defendant in favor of 2nd defendant is in gross violation of the preemptive Clause in para No.13 of the Partition Deed dated:04/01/1989. Plaintiff contends that, as per the Clause 13 of the Deed of Partition, he is having preemptive right to purchase the suit property. He is ready and willing to purchase the suit property for a sum of Rs.31,50,000/. After issuance of Notice dated:20/06/2006, defendants did not come forward to execute the sale deed of suit property. Therefore left with no alternative, he has filed the instant suit for exercising his right of preemption. On these and other grounds stated in 8 OS.25699/2007 the plaint, plaintiff prays to decree the suit and to grant the reliefs as prayed for.
3. After service of suit summons, 1st defendant appeared through counsel and filed written statement admitting that, he is the brother of plaintiff, his father acquired the house premises bearing No.11, situate at 2 nd Cross, Anniyappa Block, Kumara Park West, Bengaluru comprising of 3 residential tenements under the Registered Deed of Partition dated:13/12/1954, he, plaintiff and their father effected partition of the said property under the Registered Deed of Partition dated:04/01/1989, in the said partition, the suit property fell to his share and in the said partition, the preemptive right is reserved for the sharers. He also admitted issuance of notice dated:07/02/2006 and rejoinder dated:09/03/2006 by plaintiff and replies dated:25/02/2006 and 18/03/2006 issued by him to the plaintiff. He contends that, before he sold the suit property to 2nd defendant, he has given offer to the plaintiff to 9 OS.25699/2007 purchase the said property by issuing Reply dated:18/03/2006 for a sum of Rs.54,00,000/. After receipt of the said reply, plaintiff did not respond. Therefore under the Registered Sale Deed dated:29/05/2006 he sold the suit property to 2nd defendant for a sum of Rs.54,00,000/. He denied that, to defeat the preemptive right of plaintiff, he offered the plaintiff to sell the suit property for higher price of Rs.54,00,000/ and sold the said property to 2nd defendant for Rs.31,50,000/. 1st defendant has also denied that, in view of he sold the suit property to 2nd defendant, plaintiff will be put to inconvenience in using common passage. He contends that, plaintiff who did not come forward to purchase the suit property for Rs.54,00,000/, when he gave offer to him by issuing Reply dated:18/03/2006, is estopped from claiming the right of preemption, after he sold the said property to 2nd defendant. On theses and other grounds, 1 st defendant prays to dismiss the suit.
10
OS.25699/2007
4. 2nd defendant filed written statement reiterating the contentions of 1st defendant. She contends that, she is the bonafied purchaser of the suit property for valuable consideration of Rs.54,00,000/. She contends that, for the purpose of registration, less consideration amount i.e., Rs.31,50,000/ is shown in the Sale Deed. That is not the actual consideration amount. 2Nd defendant contends that, before finalizing of sale talks, 1st defendant has informed her that, plaintiff has given offer to purchase the suit property for Rs.20,00,000/, rejecting the said offer, he (1 st defendant) given offer to plaintiff to purchase the suit property for a sum of Rs.54,00,000/. Plaintiff did not come forward to purchase the suit property for Rs.54,00,000/. Therefore, after waiting for a reasonable period of time, she purchased the suit property for Rs.54,00,000/. 2 Nd defendant denied that, she colluding with 1 st defendant made the Sale Deed dated:29/05/2006 to defeat the pre emptive right of plaintiff. On these and other grounds stated 11 OS.25699/2007 in the written statement, 2nd defendant prays to dismiss the suit.
5. On the basis of the afore said pleadings, on 22/02/2007 the then presiding officer has formulated the following:
ISSUES
1. Whether the plaintiff proves that, he has right of preemption under Partition Deed dated:04.01.1989?
2. Whether the plaintiff proves that, 1 st & 2nd defendant are liable to execute the sale deed in respect of suit schedule property for Rs.31,50,000/?
3. Whether the plaintiff is entitled for possession of the suit schedule property?
4. What order or decree?12
OS.25699/2007
6. Plaintiff examined himself as PW1 and produced documents marked at Ex.P.1 to Ex.P.8. 1 st defendant examined himself as DW1 and produced documents marked at Ex.D.1 to Ex.D.6. 2nd defendant examined herself as DW2 and produced documents marked at Ex.D.7 to Ex.D.9.
7. Heard the arguments on both side and perused record. The learned counsel for the plaintiff has also filed written arguments.
8. My findings on the above issues are as under:
ISSUE NO.1: In the AFFIRMATIVE ISSUE NO.2: In the AFFIRMATIVE ISSUE NO.3: In the AFFIRMATIVE ISSUE NO.4: As per the final order for the following:
REASONS
9. ISSUE NO.1: Plaintiff to prove that, he is having a preemptive right to purchase the suit property has 13 OS.25699/2007 produced Ex.P.1 Registered Deed of Partition dated:04/01/1989. In Ex.P.1, Clause 13 reads thus:
"13. That none of the parties shall be entitled to sell, mortgage or otherwise deal with his share allotted to a stranger unless it is offered first to the other parties."
10. 1st defendant in the written statement has unequivocally admitted that, in Ex.P.1 the Deed of Partition dated:04/01/1989 took place between him, plaintiff and their father, preemptive right was reserved to the sharers in Clause 13. 2nd defendant in the written statement and also in the cross examination has admitted that, before purchasing the suit property, she knew about the right of preemption reserved in Ex.P.1 Deed of Partition. Thus from the recitals of Ex.P.1 and from the admissions of defendants, it is clear that, in Ex.P.1 Deed of Partition dated:04/01/1989 took place between plaintiff, 1 st 14 OS.25699/2007 defendant and their father, a right of preemption was reserved and plaintiff being the party to the said Deed of Partition, is having preemptive right of purchasing the suit property. In view of the above, I answer Issue No.1 in the AFFIRMATIVE.
11. ISSUE NO.2: In the instant case, there is no dispute that, in the year 2006, the plaintiff after came to know that, 1st defendant had an intention to sell the suit property, has issued Ex.P.2 Legal Notice dated:07/02/2006 to the 1st defendant and informed him that, he (plaintiff) was ready and willing to purchase the suit property; after receipt of Ex.P.2 Notice, 1st defendant sent Ex.P.3 Reply dated:25/02/2006 stating that, he was ready to sell the suit property to the plaintiff for consideration which was acceptable to him or determined by law; after receipt of Ex.P.3 Reply, plaintiff has issued Ex.P.4 (Ex.D.1) Rejoinder to the 1st defendant stating that, he was ready and willing to purchase the suit property for a sum of Rs.20,00,000/; 15
OS.25699/2007 after receipt of Ex.P.4 (Ex.D.1) 1st defendant has issued Ex.P.5 (Ex.D.2) Reply; in Ex.D.2 (Ex.P.5) Reply, the 1 st defendant has stated that, he was ready to sell the suit property for a sum of Rs.54,00,000/. In Ex.D.2, 1 st defendant has stated that, the market value of the suit property is more than Rs.54,00,000/. Nevertheless he was ready to sell the suit property to the plaintiff for Rs.54,00,000/ on condition that, he shall keep it for his own use and shall not resell to 3 rd parties for higher price. Further in Ex.D.2 the 1st defendant has stated that, the offer given by him is valid for only 1 month.
12. Plaintiff has stated that, Rs.54,00,000/ offered by 1st defendant to sell the suit property was beyond his budget. Therefore he did not pursue the matter in good faith believing that, 1st defendant might have contacted the prospective buyer for purchase of said property for Rs.54,00,000/. Plaintiff has stated that, in the month of June 2006, he came to know that, 1 st defendant who offered 16 OS.25699/2007 him to sell the suit property for a sum of Rs.54,00,000/ has sold the said property to 2nd defendant for a sum of Rs.31,50,000/ under Ex.P.6 Registered Sale Deed dated:29/05/2006. Plaintiff has stated that, after he came to know, the sale of suit property by 1st defendant in favor of 2nd defendant, he issued Ex.P.7 Notice to defendants stating that, he by exercising his right of preemption is ready and willing to purchase the suit property for a sum of Rs.31,50,000/.
13. Defendants who are the parties to Ex.P.6 Registered Sale Deed dated:29/05/2006 contend that, virtually the sale was made for Rs.54,00,000/. For the purpose of registration, lesser value i.e., Rs.31,50,000/ was shown in the sale deed. To prove the said contention, defendants are relying on their testimony and documentary evidence marked at Ex.D.4 Endorsement dated:05.06.2007; Ex.D.5 Income Tax returns submitted by 1st defendant for the Assessment year 200708; Ex.D.6 the pass book of 1 st 17 OS.25699/2007 defendant; Ex.D.7 the pass book of one Nagaraj, the husband of 2nd defendant; Ex.D.8 the pass book of 2 nd defendant; Ex.D.9, the Income Tax returns of 2 nd defendant for the Assessment year 200607.
14. The learned counsel for the plaintiff has strenuously contended that, as per Sec.92 of Evidence Act, defendants being the parties to Ex.P.6 Registered Sale Deed dated:29/05/2006 cannot give oral evidence contradicting and varying the recitals of said sale deed. In support of his arguments, the learned counsel for the plaintiff placed reliance on the following judgments:
1. (2003) 6 SCC 595 - ROOP KUMAR V/S. MOHAN TEDANI.
2. (2015) 14 SCC 341 - NANJAPPA V/S. RAMASAMY.
3. AIR 1992 KER 115 - LEELAMMA AMBIKAKUMARI & ANOTHER V/S. NARAYAN RAMAKRISHNAN.18
OS.25699/2007
4. (2004) 2 SCC 283 - KRISHI UTPADAN MANDI SAMITI, SAHASWAN V/S. BIPIN KUMAR.
15. The learned counsel for the defendants has strenuously contended that, the bar U/Sec.92 of Evidence Act is not a complete bar. He submits that, the Court has to give importance to both oral and documentary evidence equally. Therefore is no rule which says that, the preference is to be given to the documentary evidence than oral evidence. He submits that, despite in Ex.P.6 Sale Deed, it is noted that, the consideration amount is Rs.31,50,000/, the defendants by leading cogent evidence can prove that, the amount mentioned in the sale deed is not the actual consideration amount and the actual consideration amount is something else. In support of his arguments, the learned counsel for the defendants placed reliance on the following judgment:
19
OS.25699/2007 "AIR 1992 KAR 160 - JAVARASET Y V/s. SMT. NAGAMMA"
16. I went through the above cited judgment. In the said case, the point for consideration is the Date of birth of a person. The trial Court placing reliance on the date of birth mentioned in the school records has discorded the oral evidence lead by the parties to prove that, the date of birth mentioned in the School records is not an actual date of birth. The Hon'ble High Court of Karnataka has opined that, there is no provision in the Evidence Act which empowers the Court to prefer the documentary evidence to oral evidence.
17. The Date of birth of a student entered in the School record do not fall in the documents referred to in Sec.91 of Evidence Act. When a document would not fall within the ambit of Sec.91 of Evidence Act, then Sec.92 will not come to the play. Therefore in the said case, Sec.91 & 20 OS.25699/2007 92 of Evidence Act are not the point for consideration. Therefore the above cited judgment is not applicable to the case on hand.
18. The Hon'ble Supreme Court of India in the case of Roop Kumar cited supra in para No.17 & 18 has held as under:
"17. It is likewise a general and most inflexible rule that wherever written instruments are appointed, either by the requirement of law, or by the contract of the parties, to be repositories and memorials of truth, any other evidence is excluded from being used either as a substitute for such instruments, or to contradict or alter them. This is a matter both of principle and policy. It is of principle because such instruments are in their own nature and origin, entitled to a much higher degree of credit than parol evidence. It is of policy because it would be attended with great mischief if those 21 OS.25699/2007 instruments, upon which men's rights depended, were liable to be impeached by loose collateral evidence.
18*. In Section 92 the legislature has prevented oral evidence being adducedfor the purpose of varying the contract as between the parties to the contract; but, no such limitations are imposed under Section 91. Having regard to the jural position of Sections 91 and 92 and the deliberate omission from Section 91 of such words of limitation, it must be taken note of that even a third party if he wants to establish a particular contract between certain others, either when such contract has been reduced to in a document or where under the law such contract has to be in writing, can only prove such contract by the production of such writing."22
OS.25699/2007
19. In the case of Nanjappan V/s. Ramasamy cited supra, the Hon'ble Supreme Court of India in para No.9 of the judgment has held as under:
"9. As per Section 92 of the Evidence Act, when the terms of any such contract have been reduced to the form of a document, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument for the purpose of contradicting, varying, adding to or subtracting from, its terms. The courts have recorded concurrent findings rejecting the stand of the appellant that the actual sale price was rupees three lakhs and for the purpose of stamp duty and registration charges, lesser amount was written and this is well in accordance with Section 92 of the Evidence Act and we do not find any reason warranting interference in the said concurrent findings of the courts below."23
OS.25699/2007
20. Sec. 91 of Evidence Act reads thus:
"91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents.--When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence1 shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
--When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence2 shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the 24 OS.25699/2007 document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained."
21. Sec. 92 of Evidence Act reads thus:
"92. Exclusion of evidence of oral agreement.--When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms."
22. Ex.P.6 Sale Deed is a document made for disposition of a property. According to law, it is to be reduced into writing and it is compulsorily registrable. 25
OS.25699/2007 Therefore Ex.P.6 would fall within the category of documents stated in Sec.91 of Evidence Act. When such is the case, the bar imposed in Sec.92 of Evidence Act giving evidence contradicting or varying the terms of document would apply to Ex.P.6. The terms of disposition of property made in Ex.P.6 is binding on defendants. Therefore as per the ratio laid down in the above cited judgments, the law will not permit the defendants to give oral evidence or produce any supporting or corroborative evidence to prove that, the consideration amount mentioned in Ex.P.6 Sale Deed is not the actual sale consideration and the actual consideration is something else. Therefore as per bar U/Sec.92 of Evidence Act, the Court cannot countenance the oral and documentary evidence produced by defendants to prove that, the sale consideration shown in Ex.P.6 Registered Sale Deed is not the actual Sale consideration and the actual sale consideration is Rs.54,00,000/. 26
OS.25699/2007
23. The learned counsel for the plaintiff has strenuously contended that, even if the evidence lead by the defendants is considered, their contention that, the actual sale consideration is Rs.54,00,000/ and not Rs.31,50,000/ as mentioned in Ex.P.6 Sale Deed cannot be accepted.
24. Defendants in their evidence have given the details of breakup of payments alleged to have been made by 2nd defendant to the 1st defendant to purchase the suit property.
1. Token advance of Rs.1,000/- on 26/01/2006.
2. Rs.1,00,000/- through cheque dated:26/01/2006 bearing No.659458.
3. Rs.5,50,000/- through cheque dated:05/02/2006 bearing No.38815.
4. Rs.3,50,000/- through cheque dated:05/02/2006 bearing No.70043.
5. Rs.25,000/- through cheque bearing No.663800 on 24/03/2006.
27
OS.25699/2007
6. Rs.5,00,000/- by cash on 17/04/2006.
7. Rs.6,25,000/- through cheque bearing No.747340 on 29/05/2006.
8. Rs.25,00,000/- through cheque bearing No.027110 on 29/05/2006
9. Rs.7,49,000/- by cash on 29/05/2006.
25. According to the defendants, they finalized the talks regarding sale of suit property on 26/01/2006. On the said day, 2nd defendant has paid a token advance of Rs.1,000/ to 1st defendant. DW1 & 2 have stated that, after finalization of sale talks, 1st defendant has stated that, in view of Clause 13 of Ex.P.1 Deed of Partition, first the offer is to be given to the plaintiff to purchase the suit property. If he is not ready to purchase the suit property for the sum of Rs.54,00,000/, then only the 1st defendant will execute the document in favor of 2nd defendant agreeing to sell or sell the suit property. If really such was an agreement between defendants, nothing prevented them to make an agreement to sell mentioning the consideration amount with a condition 28 OS.25699/2007 that, the said agreement will be acted upon, only if the plaintiff not come forward to purchase the suit property for the consideration mentioned therein. In the instant case, defendants have not given any valid explanation for not making an Agreement to sell on 26/01/2006 on which day the sale talks alleged to have been finalized.
26. According to the defendants, 2nd defendant has made a payment of Rs.1,00,000/ on 26/01/2006, paid Rs.5,50,000/ and Rs.3,50,000/ on 05/03/2006 and Rs.25,000/ on 24/03/2006 through cheques and Rs.5,00,000/ in cash on 17/04/2006. A perusal of record would show that, from 07/02/2006 to 18/03/2006, there was exchange of notices between plaintiff and 1st defendant regarding the sale and purchase of suit property. In Ex.P.5 Reply dated:18/03/2006, for the 1st time, 1st defendant has offered the plaintiff to purchase the suit property for Rs.54,00,000/. As stated by DW2, in view of preemptive clause in Ex.P.1 Partition Deed, if really 1 st defendant was 29 OS.25699/2007 not agreed to sell the suit property to her and also to execute any document regarding finalization of talks till the plaintiff made it clear that, he is not willing to purchase the suit property, then absolutely there was no necessity for 2 nd defendant to make payments of Rs.1,00,000/ on 26/01/2006, Rs.5,50,000/ and Rs.3,50,000/ on 05/03/2006. The say of DW's 1 & 2 that, without making any document mentioning the terms and conditions of sale, 2nd defendant made payments of Rs.1,00,000/ on 26/01/2006, Rs.5,50,000/ and Rs.3,50,000/ on 05/03/2006 during the period of exchange of notices between plaintiff and defendant No.1 was going on, appears to be improbable.
27. DW's 1 & 2 have stated that, for purchase of suit property, on behalf of 2nd defendant her husband Nagaraju has paid a sum of Rs.1,00,000/ through cheque dated:26/01/2006. Smt. Sushma the niece of 2 nd defendant paid a sum of Rs.5,50,000/ through cheque 30 OS.25699/2007 dated:05/02/2006 and Chandrashekar (Sushma's father in law) has paid a sum of Rs.3,50,000/ through cheque dated:05/02/2006. 2nd defendant has not produced any document to show that, Sushma is her niece and Chandrashekar is the fatherinlaw of Sushma. For the reasons best known, 2nd defendant has not examined the said Sushma or Chandrashekar. Normally, at the time of purchase of a property, if the purchaser needs financial help, he/she takes financial help from his/her relatives, friends etc. After taking financial help, the purchaser will pay the amount to the vendor. The say of DW1 & 2 that, the alleged relatives of 2nd defendant directly paid the amounts to the 1st defendant towards purchase of property without making any document appears to be highly improbable.
28. DW2 has stated that, in view of preemptive clause in Ex.P.1 Deed of Partition, 2 nd defendant has not executed Agreement to sell agreeing to sell the suit property despite the sale talks were concluded on 26/01/2006, by 31 OS.25699/2007 saying that, he will formally enter into a Contract only, if the plaintiff not come forward to purchase the suit property. In Ex.P.5 (Ex.D.2) Reply dated:18/03/2006, 1 st defendant has given one month time to the plaintiff to respond to his offer to sell the suit property for a sum of Rs.54,00,000/. Therefore up to 18/04/2006, plaintiff was having time to respond to the offer given by 1 st defendant under Ex.P.5 (Ex.D.2) Reply. When such is the case, the statements of DW1 & 2 that, the 1st defendant before waiting for the response of plaintiff up to 18/04/2006 has received part of the consideration amount in lakhs of rupees on different dates and from different persons appears to be highly improbable.
29. From the statements of DW1 & 2, it is clear that, they are the income tax assessees. As per Sec.43 of Income Tax Act, if a payment for more than Rs.20,000/ was made by a tax payer for the acquisition of an asset, the expenditure would be ignored for the purpose of 32 OS.25699/2007 determination of the actual cost of the asset. Sec.269SS of Income Tax Act prohibits the tax payer from paying or receiving a sum more than Rs.20,000/ in cash. Failure to comply with the provisions of Sec.269SS of the Income Tax Act would lead to a penalty. Therefore the Income Tax Assessees shall not take or give payments of more than Rs.20,000/ in cash during the sale transaction of an immovable property. Making or receiving cash payment of more than Rs.20,000/ regarding purchase of immovable property is a violation of the provisions of Income Tax Act. It is also an offence. The say of DW1 & 2 that, they being an Income Tax Assessees having touch with Chartered Accountants, made money transaction regarding payment of consideration amount to purchase an immovable property more than Rs.20,000/ in cash would not inspire the confidence of the court. DW1 in the evidence has stated that, the amount alleged to have been paid by 1 st defendant in cash is not credited to his bank account. Therefore except 33 OS.25699/2007 the oral testimony of DW1 & 2, which testimony is against to the provisions of Income Tax Act and a confession for an offence punishable U/Sec.269SS & 271DA of Income Tax Act, there is no cogent and convincing evidence to prove that, 2nd defendant has made payment of Rs.5,00,000/ on 17/04/2006 and Rs.7,49,000/ on 29/05/2006 by cash towards sale consideration.
30. DW1 & 2 have stated that, though the actual consideration paid by 2nd defendant to get Ex.P.6 Sale Deed is Rs.54,00,000/ to save stamp duty in the Sale deed, the consideration amount is shown as Rs.31,50,000/. They stated that, in view of Ex.P.6 was registered by making undervaluation, the Deputy Registrar of Stamps has initiated proceedings and directed the 2nd defendant to pay additional stamp duty. Accordingly, 2nd defendant has paid additional stamp duty. To prove the said contention, 1 st defendant has produced Ex.D.4 the Endorsement dated:05/06/2007. As per the provisions of Registration 34 OS.25699/2007 Act, if a document is registered by making undervaluation, the SubRegistrar will make a note on the document, impounds it and send to the Deputy Registrar for determination of the market value and for collection of deficit duty and registration charges. After receipt of the said document, the Deputy Registrar will issue notice to the person in whose favor the document was made and who is liable to pay the duty and registration charges and called upon him to submit explanation. After he submitted explanation, enquiry will be conducted and the order will be passed. For the reasons best known, 2nd defendant has not produced the original sale deed dated:29/05/2006, the notice issued to her by the Deputy Registrar or an order passed by the Deputy Registrar directing her to pay deficit stamp duty and registration charges. Defendants have also not stated regarding payment of additional stamp duty and registration charges in their pleadings. Therefore due to want of pleadings and in the absence of the above relevant 35 OS.25699/2007 documents, I am of the view that, Ex.D.4 is of no assistance to defendants to substantiate their contention that, the actual sale consideration paid by the 2 nd defendant to get Ex.P.6 Sale Deed is Rs.54,00,000/.
31. In Ex.P.4 Notice the plaintiff has stated that, the market value of the suit property fixed by the Government of Karnataka for the purpose of Registration is Rs.20,00,000/. Therefore he is ready to purchase the suit property for Rs.20,00,000/. In para No.2 of Ex.P.5 Reply, the 1 st defendant has stated that, Rs.20,00,000/ may be the value fixed by the Government for the purpose of stamp duty, but the actual market value of the property is more. The SubRegistrar will impound the document submitted for registration, if the amount shown in the document is less than the value fixed by the Government for the purpose of registration. From the recitals of Ex.P.4 & 5, it appears that, in the year 2006, the value fixed by the Government for the purpose of registration of the suit property was 36 OS.25699/2007 Rs.20,00,000/. Ex.P.6 was registered for Rs.31,50,000/. Therefore the question of the SubRegistrar referring the said sale deed to the Deputy Registrar to hold an enquiry and to pass necessary orders regarding deficit stamp duty and registration would not arise.
32. Plaintiff has placed reliance on the judgment of Hon'ble Supreme Court of India, in the case of KRISHI UTPADAN MANDI SAMITI, SAHASWAN V/S. BIPIN KUMAR - (2004) 2 SCC 283. In the said case, the Hon'ble Supreme Court of India has held as under:
"C. Evidence Act, 1872 - Ss. 92 and 115 - Held, precludes a party from leading evidence contrary to the terms of a written document - Parties who undervalue their document for payment of stamp duty precluded from claiming that their own document does not reflect the correct market value - Estopped."37
OS.25699/2007
33. As per the ratio laid down in the above cited judgment, the testimony of DW1 & 2 that, the actual sale consideration is Rs.54,00,000/ and for the purpose of stamp duty, Ex.P.6 was made for a sum of Rs.31,50,000/ cannot be countenanced and defendants being the parties to Ex.P.6 are estopped from disputing consideration amount mentioned in the said sale deed. In view of my afore said findings. I hold that, defendants miserably failed to prove that, Ex.P.6 Sale Deed was made for Rs.54,00,000/.
34. 1st defendant (DW1) in the examination in chief has stated that, the right of preemption would apply if the sharers succeed to the property jointly. Under Ex.P.1 Deed of Partition dated:04/01/1989, the shares allotted to the sharers are specifically stated and demarcated. Therefore the principle of right of preemption would not apply to the case on hand.
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OS.25699/2007
35. Right of Preemption can be broadly classified into 2 types. Statutory right of Preemption and a Contractual right of Preemption. If there is no agreement between the parties governed by Hindu Law, the person who is claiming the right of preemption has to establish the requirement of Sec.22 of Hindu Succession Act to get the right of preemption. To claim contractual right of pre emption, it has to be proved that, there is valid contract between the parties reserving the right of preemption. In the instant case, plaintiff and defendant No.1, the parties to Ex.P.1 Deed of Partition, at the time of effecting partition of their ancestral property agreed to reserve the right of pre emption. 1st defendant in the written statement and also in the cross examination has admitted the preemptive clause in Clause 13 of Ex.P.1 Deed of Partition. 1 st defendant who admitted Ex.P.1 Deed of Partition, is estopped from contending that, the principle of preemption is not applicable to the suit property.
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OS.25699/2007
36. In Ex.P.1 Deed of Partition, in Clause 13, it is specifically stated that, none of the parties to the said deed shall be entitled to sell, mortgage or otherwise deal with his share to a stranger unless it is first offered to the other parties. As per the said clause, not only for sale, even for mortgage also, the sharer has to first give an offer to the other sharers. From the facts stated by DW1 in his examination in chief particularly regarding acceptance of payments from 2nd defendant as a part of sale consideration, it is evident that, when the exchange of notices were taking place between him and plaintiff and before expiry of time given by him to the plaintiff to accept his offer to sell the suit property, he(1 st defendant) has concluded the sale talks with 2nd defendant. To sell the suit property to his brother, the plaintiff, the 1 st defendant has made an offer for Rs.54,00,000/ with a condition that, after purchase of suit property, the plaintiff shall not sell the said property to any other person. Plaintiff has stated that, the 40 OS.25699/2007 amount offered by the 1 st defendant is not within his budget. Therefore he did not proceed further by bonafiedly believing that, the prospective buyers might have come forward to purchase the suit property for Rs.54,00,000/. From Ex.P.6 Sale Deed, it is evident that, 1 st defendant has sold the suit property to 2nd defendant for a sum of Rs.31,50,000/. Absolutely there is zero evidence on record to show that, before execution of Ex.P.6 Sale Deed, the 1 st defendant has given an offer to the plaintiff to purchase the suit property for Rs.31,50,000/. Thus, the 1 st defendant has not complied with the terms of preemptive clause in Ex.P.1 Deed of Partition which he agreed while taking the suit property to his share.
37. As per the principle of law that, "A buyer must be aware", the buyer has to take all necessary precautions required by law before purchasing the property. 2 nd defendant has stated that, in the month of January 2006. 1st defendant informed her regarding preemptive clause in 41 OS.25699/2007 Ex.P.1 Deed of Partition. She stated that, 1 st defendant has told her that, as per the preemptive clause in Ex.P.1 Deed of Partition, first he will give an offer to the plaintiff and if he do not come forward to purchase the property, then he will sell the suit property to her. DW2 in para No.11 of her examination in chief has stated about the exchange of notices between plaintiff and 1st defendant in respect of sale and purchase of suit property. Knowing fully well about the preemptive clause in Ex.P.1 Deed of Partition and exchange of notices between plaintiff and 1 st defendant regarding sale and purchase of suit property, the 2nd defendant started making payments to 1st defendant to purchase the suit property, before giving an offer to plaintiff to purchase the said property for Rs.31,50,000/. Therefore the 2 nd defendant cannot be said to be a bonafide purchaser.
38. From the evidence on record, it is evident that, defendant No.1 sold the suit property to 2 nd defendant under Ex.P.6 Sale Deed for a consideration of Rs.31,50,000/. At 42 OS.25699/2007 the cost of repetition, I say that, it is not the case of the defendants that, before execution of Ex.P.6 Sale Deed an offer was given to the plaintiff to purchase the suit property for Rs.31,50,000/. Giving offer to the plaintiff by quoting exorbitant price i.e., Rs.54,00,000/ and selling the property to the stranger for a sum of Rs.31,50,000/ without intimating the plaintiff about it at any stretch of imagination cannot be said to be compliance of the preemptive clause in Ex.P.1 Deed of Partition. Therefore from the evidence on reocrd, it is evident that, defendants 1 & 2 colluding with each other have made Ex.P.6 Sale Deed to defeat the pre emptive right of plaintiff to purchase the suit property.
39. The learned counsel for the defendants has strenuously contended that, after receipt of Ex.P.5 (Ex.D.2) Reply, plaintiff has not given his offer to purchase the suit property by quoting a reasonable price. In Ex.P.3 Reply dated:25/02/2006, the 1st defendant has stated that, he is ready to sell the suit property for a price determined in 43 OS.25699/2007 accordance with law. Plaintiff has not taken steps for determination of fair market value of the suit property in accordance with law. Therefore, after execution of Ex.P.6 Sale Deed to 2nd defendant, plaintiff is estopped from claiming the right of preemption,.
40. From the evidence on record, it is evident that, 1 st defendant has given offer to the plaintiff to purchase the suit property for a sum of Rs.54,00,000/. Plaintiff has stated that, the said offer is beyond his budget. Therefore he did not pursue in the matter further bonafiedly believing that, 1 st defendant might have got prospective buyers to purchase the suit property for Rs.54,00,000/. When such is the case, if really the 1st defendant would have sold the suit property for a sum of Rs.54,00,000/ then by pressing into service the principle of estoppal, he can contend that, plaintiff who has not come forward to purchase the property for the price offered by him cannot press into the service the right of pre emption after he sold the property to the very same price to 44 OS.25699/2007 the stranger. In the instant case, an offer given by the 1 st defendant to the plaintiff to purchase the suit property i.e., Rs.54,00,000/ is Rs.22,50,000/ excess than the consideration for which Ex.P.6 Sale Deed was made. Admittedly the 1st defendant has not given offer to the plaintiff to purchase the suit property for Rs.31,50,000/. In Ex.P.5 the 1st defendant has made it clear that, his offer to sell the suit property is Rs.54,00,000/. When such is the case, plaintiff taking steps for determination of fair value would not arise. In view of the above, I hold that, the contention of the 1st defendant that, plaintiff is estoppled from claiming right of preemption after he sold the suit property 2nd defendant under Ex.P.6 Sale Deed, is not sustainable.
41. The Hon'ble Supreme Court of India in the case of SMT.VIJAYALAKSHMI V/s B. HIMANTHARAJA CHETTY & ANOTHER - (1996) 9 SCC 376, in para No.9 of the judgment has held as under:
45
OS.25699/2007 "9. 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 Prakash V. State of Haryana2 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, statue 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 thus 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."
42. The Hon'ble High Court of Calcutta in the case of PRADYOT KUMAR GHOSH V/S. PULIN BEHARI GHOSH 46 OS.25699/2007
- S.A. No.272 of 1985, in para NO.10 of the judgment has held as under:
"10. In our view, the learned Appellate Court below correctly applied the provision of Section 40 of the Transfer of Property Act. To the facts of the present case. It cannot be denied that the owners of the property agreed as far back in 1935 to give a co-owner or a co-sharer of the property a right of pre- emption if any of the co-sharer of the property a right of pre-emption is any of the co-sharer/co-owner intends to sell his share in the property owned by them. As already stated that the parties are not at dispute as to the execution of agreement Ex. 1 which corresponds to Ex. A. It is also clear from the recitals of the agreement specially in clause, 3 that such agreement of pre-emption would be binding not only on the executants but also their heirs and successors. The Defendant No.1 is a third party and a stranger. The evidence clearly shows that he was aware of the prior agreement arrived at by the predecessors-in- interest of his vendor. Therefore, he is under an obligations to allow pre-emption to the 47 OS.25699/2007 plaintiff and the plaintiff can exercise such right against the defendant who was a transferee with notice of the agreement. Such right is not affected even if the defendant No.1 paid the consideration money as he made the purchase with notice of the agreement."
43. From the ratio laid down in the above cited judgment, it is clear that, the vendee of a property to which a right of preemption would apply, step into the shoes of vendor and therefore the said right of preemption can be enforced against the vendee. While answering Issue No.1 I have held that, plaintiff is having the right of preemption. In the above I have stated that, defendants 1 & 2 colluding with each other, made Ex.P.6 Sale Deed without making offer to the plaintiff to purchase the said property for the consideration amount mentioned in the said sale deed. When such is the case, plaintiff who is having a right of pre emption over the suit property, is entitled to purchase the said property for a sum of Rs.31,50,000/ and the 48 OS.25699/2007 defendants are liable to sell the suit property to him for the said amount. In view of the above, I answer Issue No.2 in the Affirmative.
44. ISSUE NO.3: While answering issue No.2 I have held that, defendants are liable to execute the sale deed of suit property to the plaintiff for a sum of Rs.31,50,000/. At the time of executing the sale deed, the 2nd defendant who is in possession of the suit property is liable to hand over the vacant possession of the suit property to the plaintiff. In view of the above, I answer Issue No.3 in the Affirmative.
45. ISSUE NO.4: In view of my reasons and findings on Issues 1 to 3, I pass the following:
ORDER Plaintiff's suit is decreed with costs.
It is declared that, as per the Clause 13 of Ex.P.1 Deed of Partition dated:49
OS.25699/2007 04/01/1989, plaintiff is having pre-emptive right of purchasing the suit property.
Defendants are directed to execute the Sale Deed of suit property to the plaintiff for a sum of Rs.31,50,000/- (Rupees Thirty One Lakh Fifty Thousand Only) within a month and to put him in possession of the suit property.
If the defendants failed to execute the sale deed of the suit property within a month, the plaintiff is at liberty to get the Sale Deed of the suit property through the Court process.
****** (Dictated to the Stenographer, transcript thereof corrected and then pronounced by me in the open court on this the 22 nd day of November 2019) (MOHAMMED MUJEER ULLA C.G.) LXXIV Addl. City Civil & Sessions Judge, Mayohall Unit, City Civil Court, Bengaluru. (CCH - 75) 50 OS.25699/2007 ANNEXURES: LIST OF WITNESS EXAMINED FOR THE PLAINTIFF:
PW1 R. NAGARAJU LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:
Ex.P.1 Deed of Partition dated:04.01.1989 Ex.P.2 Legal notice dated:07.02.2006 Ex.P.3 Reply dated:25.02.2006 Ex.P.4 Rejoinder dated:09.03.2006 Ex.P.5 Reply dated:18.03.2006 Ex.P.6 Certified copy of Sale Deed dated:29.05.2006 Ex.P.7 Legal notice dated:20.06.2006 Ex.P.8 Reply dated:03.07.2007
LIST OF WITNESS EXAMINED FOR THE DEFENDANTS:
DW1 SHAMA SUNDERRAJU DW2 ANNAPURNA
LIST OF DOCUMENTS MARKED FOR THE DEFENDANTS:
Ex.D.1 Legal notice dated:09.03.2006
Ex.D.2 Reply dated:18.03.2006
Ex.D.3 Postal acknowledgment
Ex.D.4 Acknowledgment
Ex.D.5 Income Tax Returns of 1st defendant
Ex.D.6 Pass book of 1st defendant
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OS.25699/2007
Ex.D.7 Pass book of 2nd defendant
Ex.D.8 Income Tax Returns of 2nd defendant (MOHAMMED MUJEER ULLA C.G.) LXXIV Addl. City Civil & Sessions Judge, Mayohall Unit, City Civil Court, Bengaluru. (CCH - 75)