Rajasthan High Court - Jodhpur
Smt.Chandra Kalla vs Shankar Lal on 25 September, 2019
Equivalent citations: AIRONLINE 2019 RAJ 866
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil First Appeal No. 77/1986
Smt. Chandra Kalla (Died) through her Legal Representatives :-
1/1. Kailash Chand S/o. Late Shri Gheesulal Ji Agarwal.
1/2. Ramavtar S/o. Late Shri Gheesulal Ji Agarwal.
1/3. Susheela W/o. Late Shri Mahesh Ji Bansal D/o. Late Shri
Gheesulal Ji Agarwal.
1/4. Vinod S/o. Late Shri Gheesulal Ji Agarwal.
All residents of Mutho Ka Mohallah, Merta City, Nagaur.
----Appellants
Versus
1. Shankar Lal S/o. Shri Ramesh Chandra (died) through LRs:-
1/1. Chhagini Devi W/o. Shankarlal, resident of Mutho Ka
Mohalla, Merta City, District Nagaur.
1/2. Hanumani W/o. Govind Ji C/o. Prehlad Ji Govind Ji Ojha,
resident of Nimbi, District Nagaur.
1/3. Smt. Shanti W/o. Motilal Ji Ojha, resident of Mundwa,
District Nagaur.
1/4. Mahaveer S/o. Shankar Lal.
1/5. Ramavtar S/o. Shankar Lal.
1/6. Lalita D/o. Shankar Lal.
1/7. Gyatri D/o. Shankar Lal.
All residents of Mutho Ka Mohallah, Merta City, District
Nagaur.
2. Smt. Barji Devi W/o. Madan Lal (deleted)
3. Ram Kumar S/o. Madan Lal, by caste Brahmin Sikhwal,
resident of Village Bhooriyasani, Tehsil Merta, District Nagaur.
4. Shri Om Prakash S/o. Madan Lal, by caste Brahmin Sikhwal,
resident of Village Bhooriyasani, Tehsil Merta, District Nagaur.
5. Smt. Jamna Devi D/o. Madan Lal, Madan Lal, by caste
Brahmin Sikhwal, resident of Nimbi Jodha, Tehsil Ladnoo, District
Nagaur.
6. Kumari Munni D/o. Madan Lal, by caste Brahmin Sikhwal,
resident of Near Darawadi, Nagaur.
7. Miss Godavri D/o. Madan Lal, by caste Brahmin Sikhwal,
resident of Village Bhooriyasani, Tehsil Merta, District Nagaur.
(Downloaded on 27/09/2019 at 08:39:02 PM)
(2 of 28) [CFA-77/1986]
8. Miss Uma Devi D/o. Madan Lal, by caste Brahmin Sikhwal,
resident of Village Bhooriyasani, Tehsil Merta, District Nagaur.
----Respondents
For Appellant(s) : Mr. Alkesh Agarwal
For Respondent(s) : Mr. S.G. Ojha
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Judgment Reserved on 13/08/2019 Pronounced on 25/09/2019
1. This appeal arises against the judgment and decree dated 22.5.1986 passed by learned District Judge, Merta whereby the plaintiff respondent no.1's suit for declaration, possession, pre-emption and damages was decreed in his favour.
2. The plaintiff respondent no.1 filed a suit in the court of District Judge, Merta for cancellation of the sale, possession, pre- emption and damages against the defendant-appellant, making other respondents no.2 to 8 as defendants stating that the plaintiff-respondent no.1 and one Shri Madan Lal were real brothers. Madan Lal died. Defendant-respondents no.2 to 8 are his legal representatives. Defendant no.8 Kumari Uma is minor and is residing under the guardianship of her mother; defendant no.5 to 8 who were daughters of deceased Madanlal were not a party to the sale but they have been made proforma defendants; plaintiff-respondent no.1 is having 'pattasuda' house situated at Mutho Ka Mohalla, Merta City which was purchased by him; the construction in the house was also carried by him but the name of (Downloaded on 27/09/2019 at 08:39:02 PM) (3 of 28) [CFA-77/1986] the deceased Madanlal was inserted in the Patta as he was his younger brother; the Patta stands jointly in the name of defendant respondent no.1 and Shri Madanlal; plaintiff purchased land on 17.11.58 from Municipal Board, Merta and obtained Patta no.411 which stands in the name of plaintiff and his brother Madanlal; thereafter vide Patta No.412 dated 17.11.1951 plaintiff purchased a land towards the Eastern side of the above property and the Patta of this land stands in his name alone; he and Madanlal were residing jointly and after the death of Shri Madanlal the Northern portion of the house was given to the widow of Madanlal and his children and thereafter they started living in that portion of the house but in fact there was no partition between him and Madanlal. It was further stated that the total land covered by these 3 pattas is 416.53 Sq. Yards which includes 16 Sq. Yards land which belong to him exclusively; the defendant-respondents no.2 to 4 sold a part of the said house without the knowledge of the plaintiff respondent no.1 on 4.10.1978 to defendant-appellant and its sale consideration was shown as Rs.10,000/- and the sale includes property which belongs to him; since defendant no.2 to 4 sold the property belonging to plaintiff and Shri Madan Lal jointly; the northern and southern parts of the house are joint and there is a wall in between them and there was a door in the wall; there is only one stair-case to approach first floor, therefore, the plaintiff is entitled to right of pre-emption on the property; the defendant- appellant wanted to make construction over the property which she purchased where the plaintiff gave her a notice and wrong reply was given by her to him, thereafter on 23 rd December, 1978 (Downloaded on 27/09/2019 at 08:39:02 PM) (4 of 28) [CFA-77/1986] the plaintiff-appellant started demolishing the house and closed the door which was existing in the wall.
3. Thus, it was urged that since the property was not partitioned, defendants no.2 to 4 were having no right to sell joint property and further, they were having no right to sell the exclusive property which belongs to plaintiff. Therefore, he prayed that the sale be cancelled. It was further submitted that if the right of defendants no.2 to 4 is established, then too he is entitled to right of pre-emption on the property and obtain possession thereof. It has further been stated that since the plaintiff has sustained loss of Rs.300/- due to construction, the same may be awarded to him.
4. Thus, in essence, plaintiff-respondent no.1 prayed that the sale executed in favour of defendant-appellant be cancelled and held to be inoperative and in the alternative, he be allowed to exercise his right of pre-emption and property be given to him on on possession in terms thereof and be awarded damages of Rs.300/-.
5. The defendant-appellant filed written statement inter-alia stating therein that the property was partitioned and the disputed property, which the defendant-appellant purchased, came in the share of Madanlal and she purchased the same from the owners of the property. It was denied that the plaintiff was having any right in that property. It was further denied that there is a way in the wall and further a way to go to the roof; the defendant-appellant made construction and spent about Rs.50,000/-; that plaintiff did not seek partition of the property. Other grounds were also taken. (Downloaded on 27/09/2019 at 08:39:02 PM)
(5 of 28) [CFA-77/1986] On behalf of minor defendant, Court Guardian was appointed who also filed written statement denying facts stated by plaintiff.
6. Upon the pleadings, the learned trial court framed eight issues as under :-
(1) Whether the land of lease no.14 dated 17.11.1958 was exclusively of the ownership of plaintiff and if so, what will be its effect ?
...Plaintiff (2) Whether the disputed property came into exclusive share after partition during life time of the ancestors of Madanlal and Madanlal and his family got exclusive possession thereon and the plaintiff has no concern with it; if so, then what will be its effect ?
...defendant (3) Whether the plaintiff has a right to get the sale- deed executed by the defendants no.2 to 4 of the disputed property in favour of defendant no.1 cancelled ?
...Plaintiff (4) Whether the plaintiff is entitled to receive the disputed property on the basis of right of pre-emption as stated by plaintiff in para-9 of his plaint ?
...Plaintiff (5) Whether the disputed property was actually sold for Rs.7000/- only and its cost was mentioned in the sale-deed as Rs.10,000/-; if so, what will be its effect ?
...defendant (6) Whether the defendant made new constructions in the disputed property of worth Rs.50,000/- before filing of the suit; if it is so, then in case of decree (Downloaded on 27/09/2019 at 08:39:02 PM) (6 of 28) [CFA-77/1986] being passed in favour of plaintiff on right of pre- emption the defendant no.1 would be entitled to receive the said amount from the plaintiff ?
...defendant (7) Whether the plaintiff is entitled to receive Rs.300/- from defendant no.1 on count of having broken the court-yard ('chabutari') and stone-slabs ('pattian') and taking them away by the defendant ?
...plaintiff (8) Relief ?
7. After recording evidence of the parties, the learned District Judge decided issue no.1 against the plaintiff-respondent no.1; issue no.2, 6 and 7 were decided against the defendant-appellant. Issue no.3 & 4 were decided in favour of the plaintiffs. Issue no.5 was decided in favour of defendant-appellant no.1. Consequently, the suit of the plaintiff was decreed holding that the sale executed by defendants no.2 to 4 in favour of defendant-appellant is void against the rights of the plaintiff and that the plaintiff is entitled to get possession from the defendant-appellant; that plaintiff is entitled to pre-empt the property being joint owner of the property and that plaintiff is also entitled to a sum of Rs.300/- as damages.
8. Counsel for the appellant submits that the learned District Judge while granting decree in favour of plaintiff has seriously erred in interpreting the evidence which had come on record as well as the legal position available on record. He has submitted that voluminous record was placed before the court below to prove that Shankarlal and Madanlal, namely, the plaintiff respondent and his brother Madanlal had already divided during (Downloaded on 27/09/2019 at 08:39:02 PM) (7 of 28) [CFA-77/1986] their lifetime ancestral properties by metes and bounds and were having separate title and possession on their respective properties. The defendants no.2 to 5 were the inheritors of the property of Madanlal and Shankarlal had no concern or right in respect of the disputed property. The appellant had purchased the property from defendants no.2 to 5 having exclusive title on the house. It was proved on record that both the brothers were residing separately having different addresses of their respective houses and there was a wall which separated both the houses and, therefore, it was not at all necessary for the heirs of deceased Madanlal before making alleged sale to the appellant and the trial court has erred in not relying upon the evidence produced by the appellant-defendant.
9. Learned counsel has submitted that house-tax was being charged separately for the two houses and Madanlal had paid house-tax in his name. There were separate water connections in the name of Madanlal and it was also separately assessed by the Municipal Board. It was also proved by evidence that Vijayraj that partition has already taken place between the brothers. Vijayraj has stated in his statement that he was in possession of the writing of the partition-deed but Vijayraj avoided production of the document and he joined hands with the plaintiff, for which, the learned court ought to have drawn adverse inference.
10. The learned trial court has wrongly relied upon the notice given by the plaintiff, which cannot be relied as substantive piece of evidence against the appellant. It is submitted that the findings arrived at by the trial court are based on improper appreciation of (Downloaded on 27/09/2019 at 08:39:02 PM) (8 of 28) [CFA-77/1986] evidence and submits that the earlier raised objection to the sale would be a sufficient ground to conclude that the property was not partitioned nor could such a conclusion be be drawn on the basis of statement that the plaintiff has raised an objection before the Municipal Board with regard to construction of house after purchased by the appellant.
11. It is submitted that the finding with regard to there being only one common stair-case was perverse and contrary to the facts as there was no evidence to show that the wall in between the two houses was a joint wall or that there was one 'Moda' in the wall which was closed by the appellant.
12. It is submitted that the wall was the property of the plaintiff and the appellant did not purchase the said wall and raised a separate wall from his own land. The stair-case which was available in the house was going to the roof of the plaintiff alone and it did not touch the house which the appellant has purchased.
13. It is further submitted that the plaintiff has claimed right on the basis of pre-emption at one place while he claims in one part of plaint that the entire property belongs to him and is a joint property and not partitioned, thus, the suit suffers from mis- joinder of cause of action.
14. The trial court's finding of plaintiff being 'karta' of HUF is contrary to the evidence on record as there was already a partition between the brothers Madanlal and Shankarlal. It is submitted that pre-emption (the plaintiff) was not at all necessary in the facts of the case. It was also not necessary to prove that the family of Madanlal had a necessity to sell the property. (Downloaded on 27/09/2019 at 08:39:02 PM)
(9 of 28) [CFA-77/1986]
15. It is submitted that the property was sold to the appellant on 04.10.1978, while the plaintiff had preferred the suit on 06.2.1979. It is further submitted that the plaintiff has not asked for partition, which shows that partition was already done between the parties. Suit for cancellation, possession and pre-emption has only been filed.
16. Learned counsel submits that in the notice, the plaintiff claim the property as an owner. In the objections before the Municipal Board, there is no claim for right of pre-emption. It is further submitted that after the notice was served on appellant, reply (Exhibit-11) was filed in October itself but no suit for claiming the relief was filed by the respondent; on the other hand vide (Exhibit-
12) another notice was sent to the appellant and then again another notice (Exhibit-13) was sent by the plaintiff. On the other hand, defendant no.1 appellant herein had mentioned in the additional pleas about the property having been already demolished and new construction started or on before the suit was filed and Rs.50,000/- were already incurred.
17. Learned counsel submits that the impugned judgment has also failed to take notice of the provisions of cancellation of sale- deed on account of pre-emption and submits that the house was already demolished on the same date when the suit was filed but there is no prayer for partition and declaration.
18. Learned counsel submits that it was incumbent upon the court to have directed for refund of the amount of Rs.50,000/- which the appellant had incurred at the relevant time. In the judgment, there is no mention in relation to reimbursement of the (Downloaded on 27/09/2019 at 08:39:02 PM) (10 of 28) [CFA-77/1986] amount and the decree, therefore, is defective. At no point of time Shankarlal objected sale, although, he know about the sale- deed executed on 04.10.1978.
19. It is submitted that in the first notice given to the appellant, the plaintiff did not raise objection relating to pre-emption but only claimed ownership of property. Even in the objection before the Municipal Board, the plaintiff did not claim right of pre- emption. Again the plaintiff has given notice on 04.12.1978 and the defendant-appellant sent a reply to it, whereafter fresh notice was given and the suit was filed in February, 1979, thus, he submits that the respondent has waived their right of pre- emption. It is submitted that if the claim of the plaintiff was that both the properties of the plaintiff as well as Madanlal were joint properties, then he ought to have filed a suit for partition to claim his right.
20. Learned counsel further submits that the trial court while accepting the right of pre-emption, has wrongfully further decided that there was no expenses incurred in construction of the house by the appellant and the issue no.6 has wrongfully been decided.
21. Learned counsel further submits that the consideration of sale has been decided at Rs.10,000/- in terms of issue no.5, then the trial court ought to have directed while decreeing the suit in favour of the respondent-plaintiff to pay the said amount to the appellant purchaser but no such order has been passed in terms of Section 13.
22. Having noted the submissions of learned counsel for the parties, as above and the issues as framed by the learned trial (Downloaded on 27/09/2019 at 08:39:02 PM) (11 of 28) [CFA-77/1986] court, instead of examining the matter issue-wise, this Court deems it appropriate to frame following question which arises before this Court in appeal as under:-
"Whether right of pre-emption was available with the plaintiff Shankarlal; and if so, then what would be its effect on the sale-deed which has already been executed by the legal heirs of his brother Madanlal ?"
23. In light of the aforesaid question, the issues, as mentioned in para 4 of this judgment, would be examined.
24. PW-1 Shankarlal plaintiff has stated in his statement that he alongwith his brother were joint owners of the plot and both were living together jointly. Both the brothers were having half share each in the house and it was constructed by him from his own sources. The 'patta' of the house is in the name of both the brothers. He further stated that there are three 'pattas' of the land on which the house has been constructed and in two of them both name of plaintiff and the defendant's father Madanlal is entered; while in the third 'patta' name of plaintiff alone is entered, however, he states that the land was in joint ownership of both the brothers. He initially constructed half of the portion of the house in 1949 and then constructed northern portion of the house in 1957. There was a 'moda' to go towards northern side and there was a single stair-case to both the parts of the house and there was a common wall with a door opening in between, which has been closed by putting stone-slabs. In the centre of wall there was a hall and photographs thereof were also placed. The total area of the plot was 400 Sq. Yards, out of which, 221 Sq. Yards has been sold without giving him information and that he came to (Downloaded on 27/09/2019 at 08:39:02 PM) (12 of 28) [CFA-77/1986] know only when permission was taken from Municipality for construction, for which he raised his objection. Also noticed the statement of Vijay Kumar. Thus, the issue no.1 as to whether the concerned property was in exclusive ownership of the plaintiff was answered against him holding that the property was a joint property of both the brothers as per the admission of the plaintiff himself in his statement. It is noticed that the appellant herein has not been able to show any document to show that the property was independent of each other and that there was no joint ownership.
25. From the statements of Shankarlal, it is apparent that he has submitted objections to the Municipality against granting of permission for construction of the house, which was rejected vide Exhibit-8. He has given notice to Chandra Kalla on 30.11.1978 (Exhibit-9), which was answered by the defendant (Exhibit-11). In the notice dated 30.11.1978 he objects to sale of plot and states that he has right in the said house and that he would file a case for cancellation of sale-deed after obtaining copy of the sale- deed from Sub-Registrar, Merta and cautions for not demolishing the house. In reply to the said notice, Shankarlal the appellant stated that he has purchased the house by registered sale-deed for a sum of Rs.10,000/- from Barji Devi W/o. Madanlal and two sons and it is stated that the notice does not give any details about what are his rights and how. It is stated that the house was sold and was in exclusive possession and ownership of the sellers since long and that the plaintiff was merely neighbour and earlier also there was a consent on his part and if there is a good (Downloaded on 27/09/2019 at 08:39:02 PM) (13 of 28) [CFA-77/1986] neighbour, then he would be happy. Notice has been given after the property was demolished, which was in a very dilapidated condition. Thereafter second notice was sent by Shankarlal (the plaintiff) wherein he states that he has a 'patta' of the property which he purchased from his own earnings and Mst. Barji Devi and her sons has no right to sell the property. He denied of having ever given his consent to the appellant for purchasing of the property. It was also stated that the house was not in good condition. It has not been demolished as yet. It was also stated that he had put up his objections before the Municipal Council, Merta in this regard whereafter another notice was sent by the plaintiff on 27.12.1978 to the counsel of the appellant reiterated as above. A map was also produced and photographs (Exhibit-5) was produced to show that a new wall was being constructed. Exhibit 1 & 2 bear name of both the brothers Shankarlal and Madanlal; while Exhibit-3 is in the name of Shankarlal.
26. From above discussion, it is thus apparent that the land on which both the houses have been constructed was in the joint name of Shankarlal and Madanlal and therefore, it cannot be said that the disputed property came into exclusive share after partition during lifetime of ancestors of Madanlal and that Madanlal's family got exclusive possession thereon.
27. Following provisions need to be noticed of the Rajasthan Pre-emption Act, 1966 :-
"3. "Right of pre--emption" defined. - The "right of pre- emptlon" is the right accruing under section 4 of this Act, upon a transfer of any immovable property to acquire such property and to be substituted as the transferee thereof in place of and in (Downloaded on 27/09/2019 at 08:39:02 PM) (14 of 28) [CFA-77/1986] preference to the original transferee. and "pre-emptor" means a person having a right of pre-emption."
"4. Cases in which right of pre-emption accrues. Subject to the provisions contained in section 5, the right of pre-emption shall, upon the transfer of any immovable property accrue to the persons mentioned in section 6."
"5. Case in which right of pre-emption does not accrue. - (1) The right of preemption shall not accrue -
(a) Upon the transfer of a ship, katra, sarai, musafirkhana, dharmashala, temple mosque or other similar buildings; or
(b) Upon a sale --
(i) by or to the Central or State Government, or
(ii) by or to any local authority, or
(iii) to any company under the provisions of Part VII of the Rajasthan Land Acquisition Act. 1953 (Rajasthan Act 24 of 1953), or
(iv) for the purpose of a manufacturing industry: or
(c) on a transfer to any of the persons mentioned in section 6 to any person who has an equal or inferior right of pre-emption: or .
(d) in the case of a transfer by joint owners. to a party to such transfer; or
(e) in respect of
(i) any sale in execution of a decree of a civil or revenue court, or
(ii) any sale in default of payment of land revenue or of any sum legally recoverable as an arrear of land revenue:
Provided that, in the case contemplated by sub-clause (iv) of clause (b) the right of pre-emption shall accrue, subject to the other provisions of this Act, on the expiry of one year from the date of the registered deed from the date of taking physical (Downloaded on 27/09/2019 at 08:39:02 PM) (15 of 28) [CFA-77/1986] possession of the immovable property sold if such property has not been used in good faith for the purpose for which it was ostensibly purchased.
(2) Nothing in this Act. shall -
(a) effect the provision of rule 88 of Order XXI of the Code of Civil Procedure, 1908 (Central Act 5 of 108) or provisions of the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955) or of the Rajasthan Land Revenue Act, 1956 (Rajasthan Act 15 of 1956). or of the Rajasthan Colonisation Act. 1954 (Rajasthan Act 27 of 1954); or
(b) confer on any person the right of pre-emption in respect of any immovable property which such person is not entitled to purchase under any law for the time being, in force."
"6. Persons to whom right of pre-emption accrues .-- (1) Subject to the other provisions of this Act, the right of pre- emption in respect of any immovable property transferred shall accrue to, and vest in the following classes of persons, namely:- (ii) owners of other immovable property with a stair case or an entrance or other right or amenity common to such other property and the property transferred, and (iii) owners of property servient or dominant to the property transferred. (2) Among the different classes of persons mentioned in sub- section (1) person of the first class will excluded those of the third classes person of the second class will 70 Pre-Emption Act, 1966 exclude those of the third class (3) Among the person of the same class claiming the right of pre-emption the person nearer in the relationship to the person whose property is transferred will exclude the more remote. (4) Where two or more person of the same class claiming the right of pre- emption are equally entitled there to in all respect the right of pre-emption are equally entitled thereby in all respect the court may - (a) Determine by drawing lots the person in whose favour pre-emption may be decreed or (b) After taking into (Downloaded on 27/09/2019 at 08:39:02 PM) (16 of 28) [CFA-77/1986] consideration the circumstance of the case and the respective requirement of all such person (i) Determine which of such person may be allowed to exercise the right in preference to the rest, or (ii) Direct the division of the property equally among all such person each of them paying an equal share of the consideration for the transfer.
"13.Decree to fix time for payment - If the court finds for the plaintiff. the decree shall specify a date on or before which the purchase money or the amount to be paid to the mortgagee shall be paid."
"14.Effect of non payment. - If the purchase money or account is not paid into the court before it rises on the day fixed by it under section 13, the Plaintiff's suits shall stand dismissed and he shall show far as relates to such sale or mortgage, lose his right of pre-emption over the property to which the decree relates and shall also bear the cost of the defendants unless the court, for reasons to be recorded at the time of passing the decree, otherwise directs."
28. On the basis of law as discussed in relation to the aforesaid provisions, it is now well settled that a pre-emptor is required to raise objection upon a transfer of any immovable property and he has to satisfy the conditions as enumerated in Section 6 of the Act of 1966, which are satisfied at this stage. It is necessary to note that the right is only available to co-sharer and not where joint- ness and common-ness is claimed only in boundary wall between pre-emptor's property and the vendor's property.
29. Section 6(1) (iii) of the Rajasthan Pre-emption Act, 1966 was declared invalid by the High Court in Nainmal Vs. Kanmal AIR 1988 (Raj.) 33 following the law laid down by Hon'ble Supreme Court in AIR 1981 SC Vaman Rao Vs. Union of India. (Downloaded on 27/09/2019 at 08:39:02 PM)
(17 of 28) [CFA-77/1986]
30. In Bhau Ram Vs. Baij Nath AIR 1962 page 1476 while examining provisions of Pre-emption Act in light of Article 14, 15, 19(1) (f) held that the restrictions under the Pre-emption Act were reasonable restrictions, however, so far as the Clause by which ....owing to the property sold was held to be ultravires and it was held to impose unreasonable restriction as guaranteed under Article 19(1)(f) held as under :-
(7). Let us further look to the broader aspects of the provisions relating to pre-emption by vicinage. It may be stated that the right of pre-emption was not recognised under the Hindu law and is not enforced in large parts of this country to the south of the Vindhyas. It came to be enforced after the advent of Mohomedan rule as based on custom which was accepted by courts, particularly in Northern India. While in Northern India the courts enforced the right of pre-emption based on custom, even where there was no statutory law of the pre-emption holding that it was in accordance with justice, equity and good conscience, in Southern India the view taken was that it was opposed to principles of justice, equity and good conscience :
(see Ibrahim Saib v. Muni Mir Udin Saib and (1870) 6. Mad. H.C.R. 26, Mohomed Beg Amin Beg v. Narayan Meghaji Patil, ILR. (1916) 40 Bom. 358. The reasonableness of a custom is, however, not a constant factor and what is reasonable at one stage of the progress of society may not be so at another stage. It is in this context that we have to judge the law of pre-emption as it was later put into the various statutes. Before the Constitution came into force, the statutes if they were passed by competent authority, could not be challenged; but we have now to judge the reason ableness of these statutes in the light of the fundamental rights guaranteed to the citizens of this country by the Constitution. In a society where certain classes were privileged and preferred to live in groups and there were discriminations, on grounds of religion, race and caste, there (Downloaded on 27/09/2019 at 08:39:02 PM) (18 of 28) [CFA-77/1986] may have been some utility in allowing persons to prevent a stranger from acquiring property in an area which had been populated by a particular fraternity of class of people and in those times a right of pre-emption which would oust a stranger from the neighbourhood may have been tolerable or reasonable. But the Constitution now prohibits discrimination against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them under Art. 15 and guarantees a right to every citizen to acquire, hold and dispose of property, subject only to restrictions which may be reasonable and in the interests of the general public. Though therefore the ostensible reason for pre-emption may be vicinage, the real reason behind the law was to prevent a stranger from acquiring property in any area which had been populated by a particular fraternity or class of people. In effect, therefore, the law of pre-emption based on vicinage was really meant to prevent strangers i.e. people belonging to different religion, race or caste, from acquiring property. Such division of society now into groups and exclusion of strangers from any locality cannot be considered reasonable, and the main reason therefore which sustained the law of pre- emption based on vicinage in previous times can have no force now and the law must be held to impose an unreasonable restriction on the right to acquire, hold and dispose of property as now guaranteed under Art. 19(1)(f), for it is impossible to see such restrictions as reasonable and in the interests of the general public in the state of society in the present day.
31. So far as the ground of relief to pre-emption co-sharer in the property concerned, the Constitution Bench held as under :-
"(11). This brings us to the consideration of the first ground which gives a right of pre-emption to a co-sharer in the property sold. The question as to the constitutionality of a law of pre-
emption in favour of a co-sharer has been considered by a number of High Courts and the constitutionality has been uniformly upheld.
We have no doubt that a law giving such a right imposes a (Downloaded on 27/09/2019 at 08:39:02 PM) (19 of 28) [CFA-77/1986] reasonable restriction which is in the interest of the general public.
If an outsider is introduced is a co-sharer in a property it will make common management extremely difficult and destroy the benefits of ownership in common.
The result of the law of pre-emption in favour of a co-sharer is that if sales take place the property may eventually come into the hands of one co-sharer as full owner and that would naturally be a great advantage the advantage is all the greater in the case of a residential house and s. 16 is concerned with urban property; for the introduction of an outsider in a residential house would lead to all kinds of complications. The advantages arising from such a law of pre-emption are clear and in our opinion outweigh the disadvantages which the vendor may suffer on account of his inability to sell the property to whomsoever he pleases. The vendee also cannot be said to suffer much by such a law because he is merely deprived of the right of owning an undivided share of the property. On the whole it seems to us that a right of pre-emption based on co-sharership is a reasonable restriction on the right to acquire, hold and dispose of property and is in the interests of the general public.
(12) The same reasoning in our opinion will apply to the third ground, "where the sale is of a property having a staircase common to other properties, in the owners of such properties". This ground stands on the same footing practically as the first ground relating to co-sharers, and for the same reason we hold that it is a reasonable restriction, and is in the interest of general public.
(13) Turning now to the fourth ground, "where the sale is of a property having a common entrance from the street with other properties, in the owners of such properties", this ground is in our opinion similar to the third ground, the only difference being that in one case there is a common staircase while in the other case there is a common private passage from the street. The idea behind this ground seems to be that the buildings are (Downloaded on 27/09/2019 at 08:39:02 PM) (20 of 28) [CFA-77/1986] in a common compound and perhaps were originally put up by members of one family or one group with a common private passage from the public street. In such a case the owners of the buildings would stand more or less in the position of co-sharers, though actually there may be no co-sharership in the house sold. But as we have said this case would approximate to cases of a common staircase and co-sharer; therefore, for reasons given in the case of co-sharers we uphold the right of pre- emption covered by the fourth ground in s. 16. The case falling under the fourth ground must be distinguished from katras which are exempt from the provisions of the Act in s. 5 : (see Karim Ahmad v. Rahmat Elahi) A.I.R. 1946 Lah. 432."
32. Again in Sant Ram & Ors. Vs. Labh Singh & Anr., reported in AIR 1965 SC 314 the Constitution Bench reiterated the law and upheld the view taken earlier in Bhau Ram Vs. Baij Nath (supra).
33. In Smt. Prem Dulari Vs. Smt. Raj Kumari, reported in AIR 1967 SC page 1578, another Constitution Bench relying on Bhau Ram Vs. Baij Nath (supra) held that as under :-
"The section clearly says that where the sale is of property having a common outer entrance with other properties, the right of prior purchase shall vest in the owners of such properties. There is nothing in the section to warrant the construction that such a right would vest only if the common outer entrance is jointly owned by the owners of such houses. What the section requires is the existence of a common outer entrance which need not the owned by the person claiming the right of pre- emption. Whether there is such a common outer entrance which would attract the provisions of s. 15 (fourthly) would, therefore depend upon the facts proved in each case."
34. In Atam Prakash Vs. State of Haryana & Ors., reported in AIR 1986 SC page 859, Five Judges Bench again touching the (Downloaded on 27/09/2019 at 08:39:02 PM) (21 of 28) [CFA-77/1986] Pre-emption Act reiterated the law laid down in Bhau Ram (supra) and held as under :-
"10. In the first case, (Bhau Ram's case), the right of pre- emption given to co-sharers was held to be a reasonable restriction on the right to held, acquire or dispose of property conferred by Article 19(1)(f) of the Constitution. What has been said there to uphold the right of pre-emption granted to a co- sharer as a reasonable restriction on the right to property applies with the same force to justify the classification of co- sharers as a class by themselves for the purpose of vesting in them the right of pre-emption. We do not think that it is necessary to re-state what has been said in that case. We endorse the views expressed therein. The right of pre-emption vested in a tenant can also be easily sustained. There can be no denying that the movement of all land reform legislations has been towards enabling the tiller of the soil to obtain proprietary right in the soil so that he may not be disturbed from possession of the land and deprived of his livelihood by a superior proprietor. The right of pre-emption in favour of a tenant granted by the Act is only another instance of a legislation aimed at protecting the tenant. There can be no doubt that tenants form a distinct class by themselves and the right of pre-emption granted in their favour is reasonable and in the public interest. We are, therefore, of the view that clause 'fourthly' of Section 15(1)(a), clauses 'fourthly and fifthly' of Section 15(1)(b) and clause 'fourthly' of Section 15(1)(C) are valid and do not infringe either Article 14 or 15 of the Constitution."
35. Further on the ground of consanguinity the right of pre- emption was not found to be legally sustainable and it was held as under :-
"13. We are thus unable to find any justification for the classification contained in Section 15 of the Punjab Pre-(Downloaded on 27/09/2019 at 08:39:02 PM)
(22 of 28) [CFA-77/1986] emption Act of the kinsfolk entitled to pre-emption. The right of pre-emption based on consanguinity is a relied of the feudal past. It is totally inconsistent with the Constitutional scheme. It is inconsistent with modern ideas. The reasons which justified its recognition quarter of a century ago, namely, the preservation of the integrity of rural society, the unity of family life and the agnatic theory of succession are today irrelevant. The list of kinsfolk mentioned as entitled to pre-emption is intrinsically defective and self-contradictory. There is, therefore, no reasonable classification and clauses 'First', 'Secondly', and 'Thirdly' of Section 15(1)(a), 'First', 'Secondly' and 'Thirdly', of Section 15(1)(b), Clauses 'First', 'Secondly' and 'thirdly' of Section 15(1)(C) and the whole of Section 15(2) are, therefore, declared ultra vires the Constitution."
36. Keeping in view the aforesaid pronouncements, this Court has examined the present facts. It is noticed that the documents and the statements of the witnesses clearly show that the 'patta' of the land is a joint 'patta' and admitted. Even the 'patta' which is in the name of Shankarlal has been admitted as joint property. Once it is a joint property of Shankarlal and Madanlal, who are brothers and cosharers it was necessary for the respondent- appellant to prove that there was already a partition and the parties had already divided the property by metes and bounds and there was no common entries or common stairs. However, in view of the statements of the witnesses which have been recorded and notices by the trial court, it is apparent that the family of late Madanlal and the plaintiff were having a joint ownership property with a common stairs and a wall with entrance of both the sides, though, they had ear-marked certain portions for living, the nature of the property had not been disturbed and continue to remain a common property for all.
(Downloaded on 27/09/2019 at 08:39:02 PM)
(23 of 28) [CFA-77/1986]
37. The very purpose of Pre-emption Act as highlighted by the Apex Court (supra) is to grant a right to a co-sharer to a property. The appellant by his statements or through cross-examination has been unable to dislodge plaintiff claim of the property being in common.
38. The argument of learned counsel that a partition suit ought to have been filed by the plaintiff is wholly misconceived for claim of pre-emption, which is not incumbent upon a party to claim partition. Neither there is any such law nor any such law was cited before this Court in support of such contention. Even otherwise such an argument is noticed to be rejected as the law of pre- emption does not put any pre-condition of partition amongst the co-sharers. It is further noticed that if a partition would have taken place, the subsequent seller can claim his right or as a co- sharer, which is not the situation in the present case.
39. Another argument was raised by learned counsel for the appellant relating to the statement made by Vijayraj (DW-7) and Vijayraj in his statement claimed that there was already a partition between the parties, however, he does not place that partition-deed on record. His statement is, therefore, no supported by any documentary evidence. No such plea was advanced on behalf of the sellers as the sellers have not come in appeal nor any evidence on their behalf of such a nature was produced, thus, it cannot be said that any partition took place. The division of house has also not been proved.
40. This Court also finds from the evidence which has come on record that the house was demolished after the notice was served (Downloaded on 27/09/2019 at 08:39:02 PM) (24 of 28) [CFA-77/1986] upon the appellant by the plaintiff. Thus, any cost incurred in demolition of the house as claimed by the plaintiff is not liable to be reimbursed to him as it was at his own risk that he continued to demolishing the house instead of objection raised by the plaintiff.
41. The another argument raised by the learned counsel of the plaintiff claiming the property as his own and therefore, the plea of pre-emption would not be available, is noted to be rejected. It is found that the plaintiff has claimed the land, where the two adjacent houses were constructed, was in the joint name of the plaintiff-Shankarlal and Madanlal as is apparent from the exhibits. Hence his claim was as a joint owner and as admittedly, no partition has taken place, both Madanlal and Shankarlal would be treated as owners on each part of the property and, therefore, the right of pre-emption existed as not only they were joint owners but had a common entrance joint with both the houses and common stairs and common wall which had been duly proved.
42. In view of the Section 6(1) (ii) of the Act of 1966 this Court is satisfied that the right of pre-emption has been duly proved by the plaintiff and as a pre-emptor he has taken all necessary steps for claiming his right and, therefore, the sale-deed executed in his favour by the appellant was liable to be cancelled.
43. The next question which arises is with regard to the part of judgment for which grievance has been raised by learned counsel for the appellant in relation to repayment of the cost incurred in execution of sale-deed and right of purchase. Provisions of Section 13 & 14 of the Act would also be applicable to the present (Downloaded on 27/09/2019 at 08:39:02 PM) (25 of 28) [CFA-77/1986] facts and while affirming the decree passed by the court below, this Court directs the plaintiff-respondent to re-pay amount of Rs.10,000/- as consideration of sale-deed to the appellant with interest @ 10% per annum on the said amount from the date of sale till today with the condition in terms of Section 14.
44. This Court notes that the trial court has not passed orders in terms of Section 13 & 14 of the Act of 1966, however, non-passing or the order by the trial court would not create a right in favour of the appellant as no one should suffer on account of fault of the court. Accordingly, this ground is rejected.
45. Counsel for the appellant stated that the vendor has obtained consent of the plaintiff pre-emptor before the sale of the property, however, this Court on reading the evidence, does not find any proof to show that Shankarlal has given his consent. On the other hand, the defence set up by the appellant in his reply to the facts was specifically denied by the plaintiff in his subsequent notice. The judgment cited of134 Bhanwar Lal Vs. Shankar Lal & Others, reported in 2000(2) WLN page 134 would have no application to the facts of the case. Similarly judgment of S. Sundaram & Anr. Vs. Damodarswami & Anr., reported in AIR 1987 Madras 15 on the same point would have no application. Learned counsel has also relied on LRs of Smt. Sire Kanwar Maloo Vs. Shri Daudas Mantri reported in 2008(1) RLW page 781 to submit that right of co-owner of property cannot pre-empt transfer of other immovable property, however, in the present case it is not a wall between the two houses but is a wall with a common stair-case and entrance between two parts of the houses, which has a same (Downloaded on 27/09/2019 at 08:39:02 PM) (26 of 28) [CFA-77/1986] 'patta'. Thus, it is a case of joint ownership of all the parts of the house. More so, as there is no division of property amongst the family members as has been noticed by the trial court.
46. During pendency of this appeal an application under Order 41 Rule 27 CPC was moved by the appellant-defendant wherein it was submitted that the respondent plaintiff was served with the notices for assessment of house-tax in respect of the house occupied by plaintiff-respondent and on 01.10.1971 the plaintiff respondent filed objections ('ujardari') before the Municipal Board, in which, he stated that house-tax @ Rs.15/- per month may not be assessed as there cannot be rent of Rs.15/- per month, which was rejected by the Municipal Board. With regard to the notice sent in relation to the disputed house, Shankarlal submitted that the house belongs to his brother, who has died 5-6 years and his wife is residing and, therefore, a house cannot fetch assessed amount. The document bears signature of Shankarlal. This objection was also dismissed by the Municipal Board and an affidavit has also been filed.
47. In written submissions counsel for the respondent has also disputed letter dated 01.10.1971 on the ground that the signatures on the documents are not correct as the word written in the document shows signatures as 'Da Shankar Lal' and not 'Shankarlal'. However, as the signatures of Shankarlal are present on the document, the argument is found to be without any merit and is rejected.
48. In reply to the application, the respondent Shankarlal submitted that the documents ought to have been produced (Downloaded on 27/09/2019 at 08:39:02 PM) (27 of 28) [CFA-77/1986] during trial. Further, this house-tax in respect of disputed house was known to the appellant but he did not file the same at that relevant time. Letter to the Municipal Board would not amount to his admission.
49. I have considered the submissions and find that the document sought to be produced is certified copy obtained on 4.2.2008 and the document is, therefore, required to be considered as it has a bearing on the case. Having said so, I have considered the document placed on record alongwith the application under Order 41 Rule 27 CPC and find that it is a letter written by Shankarlal to the Land Tax Officer stating that the assessment has been done of House No.6/76-60 annual rent of Rs.180/- which is on higher side. He states that the house is of his brother Madanlal, who expired 5-6 years back and his wife is staying in her parental house ('pehar'). No room of the house is worth living and when early in 1962-63 assessment of this house was done on the higher side, then also it was done as per the condition and no change has been made in the house. From perusal of the above language, it is clear that the house was sold to Madanlal, however, the same does not in any manner go to show that the property was not common for both the houses. It further shows wife of late Madanlal was not living in the house and the house was with Shankarlal. The document, therefore, does not in any manner is in favour of the contentions raised by the appellant.
50. Keeping in view above, this Court finds that the right of pre- emption was available with the plaintiff-Shankarlal and he has (Downloaded on 27/09/2019 at 08:39:02 PM) (28 of 28) [CFA-77/1986] proved from evidence on record that he was not offered the property for purchase of the property nor his consent was taken by Madanlal's heirs and the plaintiff is entitled to receive the disputed property.
51. In view thereof, the plaintiff would be required to repay the amount of Rs.10,000/- to the appellant as reimbursement of the cost incurred in execution of the sale deed with interest @10% per annum from the date of sale till today with the condition that if the purchase money is not paid to the appellant by the respondent-plaintiff by 30th December, 2019, the plaintiff's suit shall stand dismissed and his right of pre-emption over the property to which the decree relates, shall be lost
52. The First Appeal is accordingly dismissed. The decree shall be prepared in the aforesaid terms by this Court. No costs.
(SANJEEV PRAKASH SHARMA),J 06-Sanjay/-
(Downloaded on 27/09/2019 at 08:39:02 PM) Powered by TCPDF (www.tcpdf.org)