Karnataka High Court
Shri Balachander vs Smt Seenabai on 29 January, 2014
1 RFA 1715/07
IN THE HIGH COURT OF KARNATAKA
GULBARGA BENCH
DATED THIS THE 29TH DAY OF JANUARY, 2014
BEFORE:
THE HON'BLE MR. JUSTICE A.S.PACHHAPURE
REGULAR FIRST APPEAL No.1715 OF 2007
BETWEEN:
1. Balachander,
s/o. Dattu Jadhav,
aged about 58 years,
Occ: Agriculture,
2. Ram,
s/o. Dattu Jadhav,
aged about 53 years,
Occ: Agriculture,
3. Ravan,
s/o. Dattu Jadhav,
aged about 48 years,
Occ: Agriculture,
All are r/o. Ujalam,
Tq: Basavakalyan,
Dist: Bidar-585 401. ... APPELLANT/S
[By Sri. S.S.Mamadapur, Adv. for
Sri. Ashok R.Kalyanashetty, Adv.]
AND:
1. Seenabai,
w/o. Apparao Jadhav,
2 RFA 1715/07
aged about 60 years,
Occ: Household work,
2. Angadrao,
s/o. Marutirao Jadhav,
aged about 43 years,
Occ: Agriculture,
All are r/o. Ujalam,
Tq: Basavakalyan,
Dist: Bidar-585 401. ... RESPONDENT/S
[By Sri. Ameet Kumar Deshpande, Adv. for R2.
R1 is served.]
***
This RFA is filed u/Section u/Sec. 96 of CPC.,
against the Judgment and Decree dated 03.03.2007
passed in O.S. No.100/2004 on the file of the Civil
Judge [Sr. Dn.], Basavakalyan, dismissing the suit
for pre-emption and for perpetual injunction.
This RFA coming on for Final Hearing this day,
the Court delivered the following:
JUDGMENT
The appellants have challenged the Judgment and Decree, dismissing their suit filed for enforcement of their right to pre-emption.
2. The facts relevant for the purpose of this appeal are as under:
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The parties are referred to as per their rank before the trial Court for the sake of convenience.
The appellants herein are the plaintiffs, whereas the respondents are the defendants before the trial Court. The plaintiffs and the husband of the 1st defendant were the full brothers. They were members of a Hindu undivided joint family and their father Dattu was the Manager and he died in the year 1983. On his death, the family properties including the suit property were continued in the joint possession.
Apparao i.e., the elder brother of the plaintiffs and the husband of the 1st defendant died in the year 1988 leaving behind his wife [1st defendant] as his legal heir. During his life time, he was managing the joint family properties and on his death, it was the 1st plaintiff, who continued the management.4 RFA 1715/07
As the relationship between the members of the joint family was not well, the 1st plaintiff instituted the suit in O.S. No.70/1991 for general partition as against the 1st defendant, plaintiffs 2 and 3. The suit was re-numbered as O.S. No.106/1993 and the parties arrived at a compromise, which was recorded on 21.11.1997. This compromise is said to be nominal and as per the compromise, the suit property measuring 12 acres 27 guntas on the eastern side of the suit survey number was given to the share of the 1st defendant. The plaintiffs claim that as the compromise was nominal and there was no disruption in the joint family, they were in joint possession of the family properties, cultivated the same and were given the usufructs and the income to the 1st defendant as per their understanding.
As the 1st defendant has shifted her residence to her parents house, the plaintiffs intended to purchase her share. There was a mutual understanding 5 RFA 1715/07 and contract between them to purchase her share for a sum of Rs.1,80,000-00 and an Agreement in this regard was entered into on 22.03.1998. But, it is contended that the 1st defendant without intimating the plaintiffs executed a Sale Deed of the suit property in favour of the 2nd defendant under a registered Sale Deed dated 31.08.2004 for a consideration of Rs.3,70,000-00. It is in the aforesaid circumstances, the plaintiffs approached the trial Court, seeking enforcement of right of pre-emption to purchase the suit property of the 1st defendant.
The defendants appeared before the trial Court and filed their joint written statement denying the averments in the plaint. It was their contention that the family properties were partitioned and in pursuance of the said partition, the 1st defendant came in possession of the suit property and they denied the preferential rights of the plaintiffs 6 RFA 1715/07 under Section 22 of the Hindu Succession Act [hereinafter referred to as "the Act" for short]. It was their specific contention that there was a real partition and the suit property was fell to the share of the 1st defendant. One of the contentions of the 1st defendant was that the suit property belongs to the grand mother of her husband and her husband was the exclusive owner of the same.
During the trial, the plaintiffs examined P.Ws.1 to 5 and got marked the documents Exs.P1 to 18, whereas the defendants examined D.Ws.1 to 3 and got marked the documents Exs.D1 to 33.
The trial Court after hearing counsel for the parties and on appreciation of the evidence on record, dismissed the suit. Aggrieved by the Judgment and Decree, the plaintiffs are in the appeal before this Court.
3. I have heard learned counsel for both the parties.
7 RFA 1715/07
4. The point that arises for my consideration is;
Whether the appellants have a right of pre-emption under Section 22 of the Act in respect of the suit property and whether the trial Court was justified in dismissing the suit?
5. Learned counsel for the appellants would contend that the compromise that was entered into between the parties is nominal and the suit property is the joint family property. So also, he submits that when the 1st defendant intended to sell the suit property as per the provisions of Section 22 of the Act and even under the contract entered into between the parties, the 1st defendant was bound to sell the suit property to the plaintiffs and therefore, he submits that the trial Court committed an error in dismissing the suit.
On the other hand, learned counsel for the 2nd respondent has supported the Judgment and Decree of the trial Court.
8 RFA 1715/07
6. The plaintiffs have produced the certified copy of the compromise petition in O.S. No.106/1993 at Ex.P2. Para 1 of the said compromise petition reads thus;
"That, the plaintiff and the defendant Nos.1 to 4 have arrived at compromise on the intervention of the respectable persons of village in order to maintain cordial relationship among themselves, so also to end the quarrel and dispute finally, the plaintiff and the defendants have agreed to get compromise on the following terms and conditions."
In para 3, it is specifically mentioned that as agreed and settled between the plaintiff and the defendants, the suit property bearing Sy. No.372 measuring 12 acres 27 guntas has fallen to the share of the 1st defendant and she is in actual and physical possession of the said property in pursuance of the compromise. It is made clear that the 1st defendant has to enjoy the property as she 9 RFA 1715/07 like and as the other parties had no objection of whatsoever manner under the said partition, the remaining portion of the property was partitioned amongst the other parties. It is in pursuance of this compromise petition, the parties had approached for decree in terms of the compromise petition and this petition came to be filed on 21.11.1997. Though the certified copy of the compromise decree is not produced, it is not in dispute that the compromise petition was accepted by the Court.
7. The perusal of the record of rights produced by the parties subsequent to this partition indicate that the name of the 1st defendant was entered into in the records of the suit property. That itself would lead to an inference that the partition stated in the compromise petition was acted upon and in the records, it was the 1st defendant who was shown as the owner and in possession of the suit property.
10 RFA 1715/07
8. Though it is contended that this compromise is nominal, except the oral evidence stating that it is a nominal partition, no material is placed on record. The contents of the document of which they are the parties cannot be disputed unless there is a pleading relating to misrepresentation or fraud. Nowhere in the complaint or in the evidence, there is any allegation or averment by the plaintiffs that there was any misrepresentation or fraud by the 1st defendant. In the circumstances, the oral evidence is insufficient to overcome the contents of the compromise entered into between the parties in the Court and having accepted the decree in this regard.
9. It is not in dispute that there was an Agreement between the parties on 22.03.1998 and under which the 1st defendant is said to have agreed to sell the suit property to the plaintiffs for a consideration of Rs.1,80,000-00. If the plaintiffs have any right under this Agreement, they could have 11 RFA 1715/07 enforced it by filing a specific performance suit. But, no such relief is sought in the suit filed. It is well-established principle that any contract without consideration is void and in case, if they have entered into an Agreement to purchase the suit property from the 1st defendant, in the absence of any consideration for this Agreement to purchase the property, such contract cannot be enforced. Though the plaintiffs claimed that they agreed to purchase the property for a sum of Rs.1,80,000-00, at the most they could have instituted a suit for specific performance. As no such suit was filed, a relief in this regard cannot be granted in the suit instituted for enforcement of a right of pre-emption.
10. A preferential right to acquire the property is a statutory right vested with the party under Section 22 of the Hindu Succession Act. The said provision is extracted hereunder for the sake of convenience:
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"Preferential right to acquire property in certain cases.-(1) Where,
after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.
(2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application.
13 RFA 1715/07
(3) If there are two or more heirs specified in class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred."
Under the aforesaid provision, if a person has an interest in any immovable property and on his death, it devolves upon two or more heirs specified in class I of the Schedule, and if any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest of proposed persons proposed to transfer his interest. The provision applies to only those cases where the properties owned by two or more persons and any one of the co-owner intends to transfer his interest to a third person other than a class I heir, to mean, the person who is intending to transfer his joint interest in the property with other class I heirs of 14 RFA 1715/07 the family, then he has to sell the property to the other members and those persons have a preferential right to purchase the property.
11. But, in case, if once the partition is effected and the parties were in possession of the property in pursuance of partition, the plaintiffs cannot claim a right of preferential right to acquire the property after the partition. The object of the provision is to safeguard the interest of a joint family and entry of a stranger in the joint family property. Hence, I am of the view that the said provision is not applicable to the dispute in question solely for the reason that the partition between the parties having been concluded by acceptance of the compromise petition in O.S. No.106/1993 in pursuance of Ex.P2. If subsequently the 1st defendant has sold the property, the plaintiffs have no preferential right. In the aforesaid circumstances, as the 1st defendant has 15 RFA 1715/07 sold the suit property to the 2nd defendant after the partition, the plaintiffs cannot enforce the right conferred under Section 22 of the aforesaid Act. Thereby the trial Court considering the aforesaid provision relating to the preferential right to acquire the property and the facts in dispute, has rightly disposed of the suit of the plaintiffs.
In the circumstances, I answer the first part of the point in negative and the second part in affirmative. Consequently, the appeal fails and it is accordingly dismissed.
Sd/-
JUDGE.
Ksm*