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1996(4) Supreme 670
SUPREME COURT OF INDIA
Madan Mohan Punchhi & S.C. Sen, JJ.
Smt. Vijaya Lakshmi -Appellant
versus
B. Himantharaja Chetty & Anr. -Respondents
Civil Appeal No. 1298 of 1979
Decided on 7-5-1996
Held : The word pre-emption as is well understood is a term of law. It 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
2between the vendor and the vendee. (Para 13)
(ii) PRE-EMPTION-Partition Deed-Foster father of appellant got properties described in Schedule C-Respondent, brother of foster father got properties described in Schedule D-Clause 12 provided a stipulation of pre-emption-Foster father of appellant died in 1948-His widow as foster mother of appellant executed a Will in favour of appellant bequeathing to her properties-Respondent filed suit for possession claiming his right for pre-emption-Whether appellant was legally a stranger to the family?-(No)-Whether disposition conceived of in the Partition Deed should be a sale attracting pre-emption or could it also be a disposition other than sale?-Held, the proposed or actual disposal would be only by way of sale and no other, and that too if made to a stranger.
Held : 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 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. (Para 12)
Further held : 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 pre-condition 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. (Para 14)
JUDGMENTS
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.
2. 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 C to the indenture and valued at Rs.12,500/-. The contesting respondent got the properties described fully in Schedule D to the indenture also valued at Rs. 12,500/-. Clause 12 thereof provided a stipulation of pre-emption, 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 given in the schedule to this indenture."
3. 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.
4. 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-emption against her nor was such claim tenable in law.
5. Having regard to the mutiplicity 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?
6. 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 a right of pre-emption 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 possessio
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