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PETITIONER:

SMT. VIJAYALAKSHMI

Vs.

RESPONDENT:

B. HIMANTHARAJA CHETTY & ANR.

DATE OF JUDGMENT: 07/05/1996

BENCH:

PUNCHHI, M.M.

BENCH:

PUNCHHI, M.M.

SEN, S.C. (J)

CITATION:

JT 1996 (4) 747 1996 SCALE (4)300

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T S

Punchhi, J.

This appeal by special leave is directed against the

judgment and decree dated 1-9-1978, rendered by a Division

Bench of the High Court of Karnataka in Regular First Appeal

No.91 of 1973, affirming that of the Trial Court.

Shri Batchu Muniyappa Chetty, statedly the foster

father of Smt. Vijaya Lakshmi, the appellant herein, and

Shri B. Himantharaja Chetty, the contesting respondent

herein, were brothers, being the sons of Shri Batchu Ramaiah

Chetty. The father and sons effected a partition of their

joint family properties, under registered Partition Deed

dated June 23, 1928 (Ex.P.3), as detailed in Schedule A

attached thereto. Thereunder the father was given properties

described fully in Schedule B to the indenture valued at Rs.

20,000/-. The foster father of the appellant got

properties described fully in Schedule B to the indenture

and valued at Rs.12,500/-. The contesting respondent got the

properties described fully in Schedule C to the indenture

also valued at Rs.12,500/-. Clause 12 thereof provided a

stipulation of preemption, which being the bone of

contention. reads as follows:

"The second (the foster father of

the appellant) and third (the

contesting respondent herein) are

allotted the immovable properties

Nos.137, 138 and 139, Jeweller's

Street and No.25, Veera Pillay

Street as described in the

Schedules hereunder. Though the

party to whom it is allotted is

entitled to dispose it of, he shall

not do it to any stranger without

giving the parties to this

indenture an opportunity to buy it

by pre-emption at the valuation

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given in the schedule to this

indenture."

The foster father of the appellant died somewhere in

the year 1948 leaving his property by means of a Will dated

1-12-1948 to his widow Smt. Lakshmidevamma, who also died in

the year 1956 However, before her death, in 1951, she, as

foster mother of the appellant executed a Will in favour of

the latter bequeathing to her properties mentioned in

Schedule C. The appellant claims to have received these

properties as a foster child of late Batchu Muniyappa Chetty

and his late widow Smt. Lakshmidevamma, but not as a

stranger.

The respondent on 11-12-1956 instituted a suit against

the appellant for possession of the aforementioned Schedule

C properties the Civil Court at Bangalore inter alia on the

premise that under the terms of the Partition Deed, above-

referred to, the dispositions of properties made in the

manner stated above by late Batchu Muniyappa Chetty and

after him by his widow Smt. Lakshmidevamma, were in breach

of the terms of the Partition Deed and therefore his right

to enforce his claim for pre-emption, on payment of

Rs.3100/-, the price fixed therein, had ripened. The

appellant put forth the two wills to assert her title as

legatee. She also claimed on a variety of grounds that

neither the plaintiff-respondent had any right of pre-

against her nor was such claim tenable in law.

Having regard to the multiplicity of pleas raised by

both sides, the trial court framed as many as 11 issues but

the relevant ones for the present purpose are the following

two issues:

No.3. Whether the plaintiff proves

his right of pre-emption in respect

of disposition of properties by

bequest as well?

No.4. Whether defendants prove that

the alleged pre-emption is

unenforceable against her for

reasons stated in para 4 of the

written statement?

After recording evidence of the parties and

entertaining documentary evidence the trial court recorded

its findings on those two issues to the effect that the

plaintiff-respondent had all right of preemption in respect

of the suit properties even though they came to the

appellant by bequest and that such right of pre-emption was

an enforceable right. On holding so and as a result of

findings on other issues, the plaintiff-respondent's suit

was decreed, directing the appellant to execute a Deed of

Sale, at the cost of the plaintiff-respondent, on payment of

Rs.3100/-, and consequently deliver possession of the

properties to the plaintiff-respondent.

The appellant preferred Regular First Appeal before the

High Court of Karnataka which was placed before a Division

Bench comprising of K. Bhimiah and K.S. Puttaswamy, JJ. for

disposal. The Hon'ble Judges of the High Court differed and

rendered separate judgments. K. Bimiah, J. opined for the

dismissal of the appeal affirming the judgment and decree of

the trial court on all issues except to very the price

payable to be Rs.36000/- as determined by the trial court

for purposes of jurisdiction and court fee. He thus ordered

maintenance of the trial court's judgment and decree on

payment of Rs.36000/- as price. K.S. Puttaswamy, J. however

in his opinion took the view that findings on Issues Nos.3

and 4 be reversed and hence the appeal allowed. This

divergence of opinion attracted Sub-section (2) of Section

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98 of the C.P.C. and therefore the judgment and decree of

the Trial Court got confirmed. The price rise too got

affirmed on agreement. In sum the plaintiff-respondent got

maintained the decree on payment of Rs.36000/- as price of

the property. Being aggrieved the appellant is before us.

We do not propose to enlarge the canvass to enter into

elaborate discussion and analysis as undertaken by members

of the High Court Bench in their respective opinions on

Issues Nos.3 and 4 relating to the concept of pre-emption,

its historical perspective, related precedents and its

validity as of today and other ramifications. All the same a

classic judgment of Mohmood, J. in Govinda Dayal vs.

Inayatulla [ILR 7 A1] 775 at page 909 (F8)] is worth

reference, which explained the right of pre-emption in the

following words:

"It (right of pre-emption) is

simply a right of substitution

entitling the preemptor by means of

a legal incident to which the sale

itself was subject, to stand in the

shoes of the vendee, in respect of

the rights and obligations arising

from the sale under which he has

derived his title. It is in effect,

as if in a sale deed, the vendee's

name was rubbed out and the pre-

emptors's name was substituted in

his place.

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

Prakesh vs. State of Haryana [1986(2) SCC 249] 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, statute 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

this 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.

It is noteworthy that Clause 12 of the Partition Deed

not only mentions the list of the properties allotted to the

two brothers but their separateness is complete and

evidenced, the way these properties are apportioned and

earmarked in Schedules C and D. by allocating specific

properties to the two brothers, each of them had become

exclusive owner of those allotted. Clause 10 of the Deed and

the Schedules A, C & D are reproduced hereafter:

10. The parties two and three have

been allotted portions in premises

137 and 138 Jeweller Street as per

their respective schedules and the

plan annexed to this indenture. The

portions allotted to party No.2 are

marked yellow and the party No.3

red. The cost of construction of

wall or walls for partitioning the

said portions, shall be borne by

the parties two and three in equal

shares."

Schedule A, containing the list of involved partible

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joint family properties:

DISCRlPTI0N VALUE

----------- -----

(1) Property No.139 - Rs.1400

(2) Property No.138 - Rs.2800

(3) Property No.137 - Rs.1500

(4) No.25, Veera Pillay Street - Rs. 400

--------------

Total - Rs.6100

--------------

Schedule C showing properties which came to the foster

father of the appellant:

DESCRIPTION VALUE

----------- -----

(1) Total premises No.25, Veera

Pillay Street, Bangalore; - Rs.400

(2) Portion earmarked and shown as

yellow in Property No.137; - Rs.1400

(3) Portion earmarked and shown in

yellow in Property No.138; - Rs.1300

---------------

Total - Rs.3100

---------------

Schedule D showing the properties which came to the

contesting respondent:

DESCRIPTION VALUE

----------- -----

(1) Total property No.139; - Rs.1400

(2) Portion in Property No.137,

as shown in red; - Rs. 100

(3) Portion in Property No.138

as shown in red; - Rs.1500

-----------

Total - Rs.3000

-----------

Walls were intended to be raised to demarcate and

separate the portions relating to two properties as the

other two were individually allotted to the respective

parties. This fall out of the partition has unfortunately

not been taken into account either by the Trial Court or the

Bench of the High Court. The following finding recorded by

the Trial Court therefore does not match happily with the

pattern of partition:

"The entire building consisting of

the portion allotted to the share

of the plaintiff and to the share

of his brother Batchu Muniyappa

Chetty forms one house. If a

stranger is inducted in any portion

of the house, the members residing

in the other portion will feel it

inconvenient to lead a peaceful

life. Every house requires privacy

from strangers. Apart from this

there are common passage and

entrances. In fact, storm water

from the roof of one of the parties

falls into the portion of the other

party. A window belonging to the

plaintiff opens into the space

belonging to the other party. There

are connected doors; the hall in

the first floor is allotted to the

share of the plaintiff and the hall

just below it is in-the possession

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of defendants. There is a stair

case also leading to the first

floor and the space directly below

it has gone to the share of the

plaintiff's brother. All these

matters are such that it is not

possible to lead a convenient and

peaceful life if a stranger is

inducted to the property. It

appears in view of these

circumstances clause of pre-emption

was inserted in the partition deed

to safeguard the peace, convenience

and amity of the family and the

insertion of such a clause in the

partition deed is not in violation

of the provisions of the transfer

of Property Act.

In view of what has been

discussed above it must be held

that the plaintiff has got a right

of pre-emption in respect of the

suit Property even though it is

bequeathed by the late Batchu

Muniyappa Chetty on his window and

his window in turn bequeathed on

the first defendant. It also be

held that the right of preemption

is an enforceable right. I,

therefore, answer issues 3 and 4 in

favour of the plaintiff and against

the defendants."

And seemingly it has met the approval of the High

Court.

Now who is the stranger' meant to be excluded in the

Partition Deed? The Trial Court has viewed the plaintiff-

appellant to be a stranger, being not a relative and at

least to the family of the plaintiff-respondent. Bhimiah, J.

affirms this view. Puttaswamy, J. held that the appellant is

a stranger in the eye of law to the family of her foster

father, but not in fact. The word `stranger', in our view,

had to be understood not in terms of blood or marriage

relationship with the family but as a person unconnected

with it, unknown in character and antecedents to the

executants of the Deed. The word `stranger' in the text has,

in our view, to be interpreted as that person who has no

connection whatsoever with the families of the original

executants i.e. the father and two sons. It has to be seen

that the plaintiff-respondent was not an utter stranger to

the family members though she may not have been related to

them through blood or marriage or otherwise by legal

adoption. In any case, she had become connected with the

family which relationship required to be respected with some

sanctity, legitimately due to human bonds, because of her

long association with her foster parents. Her status as such

could by no means be termed as a 'stranger' for the purpose

of Clause 12 of the Partition Deed. Thus if the bequest in

her favour was not made to a total stranger, one need not

enter the thicket to find whether the appellant was legally

a stranger to the family, when factually she was not, and in

that manner not unconnected with the family.

Next we come to the question whether the disposition

conceived of in the Partition Deed should be a sale

attracting pre-emption or could it also be a disposition

other than sale. The word `pre-emption' as is well

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understood is a term of law. lt is a right of substitution

conferred on someone either by statute, custom or contract.

The right is to step into the shoes of the vendee

preferentially, on the terms of sale already settled between

the vendor and the vendee. The courts below were put across

the irrefutable argument that the tenor of the Deed

suggested that it was written by a professional, knowing

fully well the attributes of pre-emption. The Deed itself

says that the parties have to be given an opportunity to buy

the property meant for disposal. The Deed provides so on the

supposition that the disposition contemplated would be a

sale and none other. Had it been otherwise, the words "by

pre-emption" could easily have been omitted conveying the

meaning suggested and the deed made to read ".... he shall

not do it to any stranger without giving the parties to this

indenture an of opportunity to buy it by pre-emption at the

value given in the Schedule to this indenture". It is thus

evident that the words "by pre-emption" were consciously

employed to denote that the opportunity to buy it by pre-

emption would only arise when there is a same and on no

other disposition. It could then be said that but for these

words "by pre-emption", any other disposition could

have come within the grip of the Clause towards buying

property, but without bringing in the word "preemption".

Thus for the afore-expressed views we have come to the

firm conclusion that on the terms of the Partition Deed, the

contractual right of pre-emption conferred on the parties to

buy property before it is disposed of to a stranger was

based on the precondition that the proposed or actual

disposal would be only-by way of sale and no other, and that

too if made to a stranger. None of these conditions are

satisfied in the facts and circumstances of the case as

neither is the disposition a sale nor is the transferee a

stranger. Therefore, the suit of the plaintiff-respondent

should have been and is hereby dismissed by allowing this

appeal, upsetting the judgments and decrees of the trial

court as well as that of the High Court, but without any

order as to costs.