Back
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE SRINIVASAN & THE HONOURABLE MR. JUSTICE S.S. SUBRAMANI
U. Venkateswara Rao & Another
Versus
Dr. U. Rama Rao
O.S.A. Nos. 242 & 243 of 1994
Decided On :Decided on : 30-11-1994
PRE-EMPTION RIGHT - RIGHT OF FIRST REFUSAL - PARTITION DEED - TRANSFER OF PROPERTY ACT, 1882, SECTION 55(4)(b) - INJUNCTION - RESTRAINING ALIENATION - LIS PENDENS - INTERPRETATION OF PRE-EMPTION CLAUSE - PROTECTION OF PRE-EMPTOR'S RIGHT.
Fact of the Case:
Plaintiff and defendants were brothers who partitioned their family property in 1975. The partition deed included a pre-emption clause giving the plaintiff the right to purchase a 1-ground plot abutting the main road if defendants decided to sell it. In 1992, plaintiff notified defendants of his intent to purchase the plot, but defendants demanded a price that plaintiff considered excessive. Defendants then entered into an agreement to sell a larger property, excluding the 1-ground plot, to a third party. Plaintiff filed a suit for declaration of his pre-emptive right and injunctions restraining defendants from alienating the plot and constructing on it.
Finding of the Court:
The court held that the injunction restraining defendants from alienating the 1-ground plot was justified to protect plaintiff's pre-emptive right. However, the injunction restraining defendants from constructing on the plot was unsustainable because they were the owners of the plot and could use it as they wished.
Issues: 1. Whether the pre-emption clause in the partition deed was valid and enforceable. 2. Whether the plaintiff had exercised his pre-emptive right properly. 3. Whether the injunctions granted by the trial court were appropriate.
Ratio Decidendi: 1. The court found that the pre-emption clause was valid and enforceable because it was clearly expressed in the partition deed and did not violate any public policy. 2. The court held that the plaintiff had exercised his pre-emptive right properly by notifying defendants of his intent to purchase the plot and offering to pay a reasonable price. 3. The court found that the injunction restraining defendants from alienating the plot was justified to protect plaintiff's pre-emptive right, but the injunction restraining defendants from constructing on the plot was unsustainable because they were the owners of the plot and could use it as they wished.
Final Decision: The court allowed the appeal challenging the injunction restraining defendants from constructing on the plot and dismissed the appeal challenging the injunction restraining defendants from alienating the plot.
1. These two appeals are filed by the defendants-1 and 2 in the suit C.S. No. 1687 of 1993 against the orders passed in O.A. No. 1018 of 1993 and O.A. No. 1018 of 1993 and O.A. No. 1017 of 1993 respectively. While O.A. No. 1017/93 is for an injunction restraining the appellants herein from alienating/selling the scheduled mentioned property to the 3rd defendant or to any other person, pending disposal of the suit O.A. No. 1018 of 1993 is for an injunction restraining the appellants and the 3rd defendant from putting up any construction in the schedule mentioned property till the disposal of the suit.
2. The facts which are necessary for the purpose of these two appeals are shortly as follows:
The plaintiff and defendants 1 and 2 are brothers. There was a partition in the family among the brothers and others on 19.9.1975. One of the clauses in the partition deed provided for a right of pre-emption in favour of the plaintiff with respect to an extent of 1 ground of land abutting the main road viz. Ritheredon Road in the event of the defendants 1 and 2 deciding to sell the said property. The plaintiff issued a notice in August, 1992 to the defendants stating that they were attempting to sell the property and he was prepared to purchase the said extent of 1 ground from them. A reply was sent by the defendants stating that the market value of the price of the said extent of 1 ground is Rs. 18 lakhs and they called upon the plaintiff to pay the said amount. The plaintiff sent a reply stating that the market value of the said extent of land is round about Rs. 10 to 13 lakhs and he wanted the defendants to revise the price. He invited the defendants to have a discussion of the matter. A reply was sent by the defendants insisting upon the price of Rs. 18 lakhs for the 1 ground plot and calling upon the plaintiff to exercise his option within 15 days from the date of the said letter. The plaintiff once again sent a reply reiterating his stand.
3. The defendants 1 and 2 entered into an agreement with the 3rd defendant for the sale of an extent of 5 grounds and 60 sq. ft. situated in 27, Ritherdon Road. That extent excluded 1 ground plot which was the subject matter of pre-emption clause. The property of 5 grounds and 60 sq. ft., was described in Schedule-A to the agreement.
4. Thereafter, the plaintiff filed the suit for declaration that he is entitled to the pre-emptive rights to purchase the plaintiff schedule property and direction to the defendants to sell the same after fixing the value. The plaintiff also prayed for permanent injunction restricting the defendants from alienating the plaint schedule property. Pending suit, the plaintiff filed O.A. No. 1017 of 1993 for an injunction restraining the defendants-1 and 2 from alienating/selling the schedule mentioned/property to the 3rd defendant or to any other person till the disposal of the suit and O.A. No. 1018 of 1993, the plaintiff prayed for an injuction restraining the defendants from putting up any construction in the said property. The learned Single Judge initially granted interim injuction in both O.As/and the defendants-1 and 2 filed Application Nos. 522 and 523 of 1994 for vacating interim orders and dismissing the Original Applications. All the applications were heard together by the learned Judge and he passed a common order on 29.3.1994. He confirmed the interim orders of injuction and dismissed the applications filed by the appellants herein to vacate the interim orders. The appellants filed Application No. 1090 of 1994 for clarification of the interim order. According to them, the interim order related to the entire property situated in 27, Ritherdon Road, comprising 6 grounds and 60 feet but the plaintiffs claim was confined only to one ground of land. The learned Judge clarified that the injunction granted by him in O.A. Nos. 1017 and 1018 of 1993, related only to the land measuring 60 feet 40 feet abutting the main road viz., Ritherdon Road.
5. Aggrieved
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
