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High Court Of Delhi
OM PRAKASH GOELA - Appellant
Versus
OM PRAKASH MEHRA - Respondent
Interim Application 6935 of 1986
Decided On : 12/13/1990
PRE-EMPTION - RIGHT OF PRE-EMPTION - PARTITION DEED - RESTRICTION ON RIGHT OF PRE-EMPTION - VALIDITY - S. 28, INDIAN CONTRACT ACT, 1872 - AMENDMENT OF WRITTEN STATEMENT - PRINCIPLES GOVERNING - WITHDRAWAL OF ADMISSION - COURT'S DISCRETION.
Fact of the Case:
Plaintiffs filed a suit for pre-emption in respect of property No. 1, Goela Lane, Underhill Road, Civil Lines, Delhi, and for perpetual injunction restraining the defendants from selling, transferring, alienating, making any additions, alterations, or demolitions in the said property. The plaintiffs claimed a right of pre-emption based on a partition deed executed in 1932, which contained a clause giving the right of pre-emption to the parties to the deed and their heirs and assigns.
Finding of the Court:
The court held that the amendment application filed by defendants 10 and 12 seeking to withdraw the admission made in their written statement that Chander Kala had executed the partition deed knowing its contents could not be allowed. The court found that the defendants had not produced any material to show that the admission was erroneous on facts. The court also held that the legal flaws showing the restriction on the right of pre-emption to be void or illegal could be urged in arguments and there was no need to plead specifically as to on what point the illegality was being urged.
Issues: 1. Whether the restriction placed on the rights of the owners and heirs in the partition deed is illegal and void? 2. Whether the amendment application filed by defendants 10 and 12 should be allowed?
Ratio Decidendi: 1. The court held that the restriction placed on the rights of the owners and heirs in the partition deed is not illegal and void. The court found that the defendants had not produced any material to show that the admission was erroneous on facts. 2. The court held that the amendment application filed by defendants 10 and 12 should not be allowed. The court found that the defendants had not produced any material to show that the admission was erroneous on facts.
Final Decision: The court dismissed the amendment application filed by defendants 10 and 12.
( 1 ) THIS is an application seeking amendment of the written statement moved by defendants 10 and 12. The plaintiffs have instituted this suit for pre-emption in respect of property No. 1, Goela Lane, Underhill Road, Civil Lines, Delhi and for perpetual, injunction restraining the defendants from selling, transferring, alienating, making any additions, alterations, or demolitions in the said property. It is pleaded in the plaint that the said property is located in a private lane known as goela Lane which was formerly owned by the joint Hindu family of Shri Basheshar Nath Goela and Shri Jogeshar Nath Goela and the said lane is a blind lane and the house in question is the last house in the said lane. Shri Jogeshar Nath Goela had died issueless in 1922 leaving behind his widow Smt. Chander Kala. It is alleged that partition was effected of the joint famil properties between Shri Basheshar Nat Goela and Smt. Chander Kala on April I8 1932 which was incorporated in the partition deed executed on the same date. It was duly registered on May 3, 1932. By virtue of the said partition, property No. 3, Goela Lane besides other properties was allotted to the share of Shri Basheshar Nath Goela while properties Nos. 1 and 2, besides other pro- perties, were allotted to the share of Smt. Chander Kala. The private lane known as Goela Lane was to remain the joint property
( 2 ) IT is pleaded that in pursuance of the said partition, it was agreed that each party; his heirs, assigns will have a right of pre- emption over the property sold by the other party and his heirs and assigns, to keep the property which was the subject matter of partition and belonged to the Joint Hindu Family from going to a stranger and to keep such property in the family.
( 3 ) BASHESHAR Nath Goela died in May 1945 leaving behind a widow and son Om Prakash Goela as his heirs. In 1945, Chander Kala adopted Harish Chand Goela as her son unto her deceased husband and Harish Chand Goela died on October 13, 1964 leav- ing behind Prakash Wati (wife), Pradip Kumar Goela (son), Kumari Kumud and Kumari Sunita, his two daughters.
( 4 ) THE Municipal Corporation has given I new No. 8/1, Underhill Road, Civil Lines, Delhi to property No. 3, Goela Lane, while properties Nos. 1 and 2 retain their original numbers. It is pleaded that there is no access to the properties in dispute from the road except through the blind lane known as Goela Lane. It is further pleaded that Munno Devi wife of late Shri Basheshar Nath Goela died in 1973 and plaintiff No. 1 Om Prakash Goela is the only heir to her while plaintiffs 2 to 4 are the sons of plaintiff No. 1. Smt. Chander Kala i died in 1974 leaving behind Parkash Vati (son s widow), Shri Pradip Kumar Goela (grandson), Kumari Kumud and Kumari Sunita her grand daughters as her adopted son Shri Harish Chand Goela had pre- deceased her. It is pleaded that Prakash Wati, Pradip Kumar Goela and M/s Jogeshwar Nath Harish Chand H. U. F. became the absolute owners of House No. 1, Goela Lane, including the back portion of the said house known as No. 1a, Goela Lane, Underhill Road, Civil Lines, Delhi.
( 5 ) IT is pleaded that Parkash Wati, Pradip Kumar Goela and H. U. F. of M/s Jogeshwar Nath Harish Chand had sold the said house No. 1a, Goela Lane to defendants 1 to 9 vide sale deed dated October 3, 1979 for a consi- deration of Rs. 4,50,000/ - and the possession of a portion of the said property has been delivered to the vendees whereas a portion of the property is still in possession of the vendors (defendants 10 to 12) as shown in green in the plan. The plaintiffs claim a right of pre-emption in respect of the said sale, on various grounds which need not be enumerat- ed at present.
( 6 ) THE suit is contested by defendants. The defendants 10 and 12 in their written statement admitted the execution of the parti- tion deed and the same being registered and the correctness of the shares allotted vide the aforesaid partition. However, they to
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