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High Court Of Rajasthan
Judgename : R.BALIA
ROOPI BAI - Appellant
Versus
MAHAVEER - Respondent
C. F. A. 96 Of 1992
Decided On : 03/10/1993
PRE-EMPTION - RIGHT OF PRE-EMPTION - ESTOPPEL - Plaintiffs' right of pre-emption defeated by estoppel due to their conduct of being present at the time of transfer of consideration before the Sub-Registrar, giving rise to presumption of their active participation and acquiescence in the transaction.
Fact of the Case:
Plaintiffs filed a suit for pre-emption of the property sold by defendant No. 2 to appellant-defendant No. 1, claiming their right to preempt the sale of property. The plaintiffs claimed that they have a right to pre-empt on the ground that a joint stair-case, entrance and other amenities attached to their properties are common to the property sold by Vijay Singh in favour of Smt. Roopi Bai.
Finding of the Court:
The trial court decided all the issues in favour of the plaintiffs and passed a preliminary decree in favour of the plaintiffs. The defendant appealed against the preliminary decree. The trial Court also passed a final decree in favour of the plaintiffs on their depositing the amount of Rs. 45,000. 00, directed as per the preliminary decree. The defendant filed an appeal against the final decree.
Issues: 1. Whether the sales by Pratap Singh in favour of plaintiffs have been proved in accordance with law? 2. Whether when admittedly Pratap Singh and his brothers have separated and specific separate portions of the property sold, no right of pre-emption could exist in favour of the plaintiffs as co-sharers and the trial Court has erred in decreeing the suit by holding that plaintiffs have a right of pre-emption as co-sharer of the property? 3. Whether, the trial Court have not arrived at any finding that any right of pre-emption exist on the ground that common amenities exist for the use of the property in question between the plaintiffs and the defendant No. 2, therefore, no decree could be passed on that basis? 4. Whether, the right of pre-emption is a weak right and it can be defeated by estoppel. 5. Whether, a joint suit by two pre-emptors is not maintainable and the court could not pass a decree in favour of two pre-emptors without determining their rights inter se in terms of S. 6 of the Pre-emption Act.
Ratio Decidendi: 1. The sales by Pratap Singh in favour of plaintiffs have been proved in accordance with law. 2. The plaintiffs' right of pre-emption is not based on their status as co-sharers, but on the existence of common amenities between the property owned by the plaintiffs and the property transferred. 3. The trial court has arrived at a finding that common amenities exist for the use of the property in question between the plaintiffs and the defendant No. 2. 4. The right of pre-emption is a weak right and it can be defeated by estoppel. 5. The plaintiffs' conduct of being present at the time of transfer of consideration before the Sub-Registrar, giving rise to presumption of their active participation and acquiescence in the transaction, estops them from exercising their right of pre-emption. 6. A joint suit by two pre-emptors is maintainable and the court can pass a decree in favour of two pre-emptors without determining their rights inter se in terms of S. 6 of the Pre-emption Act.
Final Decision: Appeal allowed. Preliminary decree dated 30/07/1992 passed in Civil Suit No. 126 of 1985 by the Additional District Judge No. 2, Udaipur is set aside. Consequently, Appeal No. 3 fo 1993 is also allowed and final decree passed by the Additional District Judge, No. 2, Udaipur on Nov. 7, 1992 is also set aside. The suit of the plaintiff is dismissed. Parties are left to bear their own costs throughout.
R. BALIA
( 1 ) THE Appeal No. 96 of 1992 is defendants appeal arising out of a preliminary decree for pre-emption of the suit property passed in favour of respondents Nos. 1 and 2 by the learned Additional District Judge, No. 2, Udaipur in Civil Suit No. 126 of 1985.
( 2 ) MAHAVEER son of Bhanwarlal and Sunder Lal son of Bhanwarlal, two brothers, filed a suit for pre-emption of the property, sold by defendant No. 2 (respondent No. 3) Vijay Singh to appellant-defendant No. 1 Smt. Roopi Bai, claiming their right to preempt the sale of property. The case of the plaintiffs is that the property in question is a part of a building originally owned by Pratap Singh Talesra, Vijay Singh Talesra and Chander Singh Talesra between whom the property was partitioned. The plaintiff-Mahaveer had purchased a part of share of Pratap Singh on 12/02/1982 and Sunder Lal another part of the share of Pratap Singh through another registered sale deed on 12/02/1982. At the time, they purchased the said shares of Pratap Singh, the properties had certain joint amenities which was being used by the owners and occupants of other parts of the property. The other owners of the property at the time of sale made in favour of the plaintiffs were stated to be Smt. Ajab Kanwar, Smt. Sohini devi who purchased the share of Chander Singh and defendant No. 2 Vijay Singh. Such amenities continued to be joint between the plaintiffs parts of buildings and property transferred by Vijay Singh. On 1/10/1984, defendant No. 2 Vijay Singh sold his share of the house in favour of defendant No. 1 Smt. Roopi Bai through a registered sale deed for Rs. 45,000. 00. It was alleged that in fact only Rs. 35,000/ - passed as consideration. The plaintiffs claimed that they have a right to pre-empt on the ground that a joint stair-case, entrance and other amenities attached to their properties are common to the property sold by Vijay Singh in favour of Smt. Roopi Bai. The plaintiffs further averred that before executing the sale in favour of defendant No. 1, no notice of such sale was given to them and they came to know about the sale in favour of defendant No. 1 by defendant No. 2 only after the sale deed was registered and when they came to know about it, they gave separate notices to the defendant No. 1 demanding enforcement of their right of pre-emption, which was in the first instance returned unserved. Thereafter when the same was again sent on 12/04/1985, it was delivered to the defendant No. 1/04/1985 but the defendant did not agree to the demand and denied the plaintiffs right. Hence the suit has been filed claiming that decree for pre-emption in favour of plaintiffs may be passed by substituting the names of plaintiffs as transferees of the property in question in place of Sint. Roopi Bai on payment of Rs. 45,000. 00 or any other sum as the Court deems. fit to be the true consideration and the possession of property may be delivered to the plaintiffs. The suit was filed on 25/09/1985.
( 3 ) DEFENDANT No. 1 only filed written statement. He denied the plaint allegations. It was pleaded that before the property in question was sold to defendant No. 1, the plaintiffs were asked to purchase the property by the vendor and it was only when they refused, the property has been sold to the defendant No. 1. It was also pleaded that the property was purchased by defendant No. 1 at the instance of the plaintiffs and plaintiffs were active participants in executing the sale deed and, therefore, they are now estopped from exercising the right of pre-emption in their favour. The defendants after they have purchased the property carried out maintenance, repairs and improvements in the property in the presence and with the consent of the plaintiffs and have spent around Rupees Five Thousand for that purpose. For this reason also, the plaintiffs are now estopped from exercising their right of preemption.
( 4 ) ). The following issues were framed on the pleadings of the parties:-
( 5 )
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