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IN THE HIGH COURT OF MADHYA PRADESH (JABALPUR BENCH)
P.C. Pathak, J.
Shivkali Bai and Ors.
Vs.
Meera Devi and Ors.
S.A. No. 484 of 1982
Decided On: 19.06.1989
PRE-EMPTION - RIGHT OF - EXERCISE OF - PROCEDURE - COUNTER CLAIM - MAINTAINABILITY - SHARE OF CO-SHARERS - CALCULATION - PRE-EMPTIVE PRICE - DETERMINATION.
Fact of the Case:
Plaintiff filed a suit for partition and possession of suit lands purchased by her from defendants 1 and 2. Defendant No. 3, mother of defendants 1 and 2, claimed preferential right to purchase the suit lands on reasonable price under Section 22 of the Hindu Succession Act, 1956 (hereinafter called the Act). Defendant No. 4 also claimed title to the suit lands under a sale deed executed by defendants 1 to 3 in his favour.
Finding of the Court:
1. The right of pre-emption can be claimed in the written statement. 2. The alienation made by the defendants 1 and 2 is not binding on defendants 3, 5 and 6. 3. The sale in plaintiff's favour is valid to the extent of 1/3 (1/12 + 1 4) share only and not 4/9, as found by the Court below. 4. The suit is bad for non-joinder of a necessary party and is liable to be dismissed. 5. The counter-claim of the defendant No. 3 is not affected by the dismissal of the plaintiff's suit. 6. The defendant No. 3 is entitled to a decree for pre-emption of her right in the suit lands. 7. The defendant No. 3 need only pay a proportionate price for the property over which she has a right to pre-emption. 8. The right of the pre-emption claimed by defendants Nos. 4 to 6 is not tenable since their claim is not superior to that of defendant No. 3.
Issues: 1. Whether the right of pre-emption can be claimed in the written statement? 2. Whether the alienation made by the defendants 1 and 2 is binding on defendants 3, 5 and 6? 3. What is the share of Kanchan Singh and Mohan Singh in the suit land? 4. Whether the non-joinder of daughter Kantibai is fatal to the maintainability of the suit? 5. Whether the dismissal of the plaintiffs suit on the ground of non-joinder of necessary party does not affect the counter-claim of the defendant No. 3? 6. How much amount the defendant No. 3 is liable to deposit as the pre-emptive price?
Ratio Decidendi: 1. Rule 6-A of Order 8 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) provides that a defendant may set up, by way of counter claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of the claim for damages or not. 2. A counter-claim is in the nature of a cross-suit and is not restricted to money suits. 3. The right of pre-emption can be claimed in the written statement itself. 4. The alienation of his interest by a co-heir in violation of Section 22(1) of the Act is not void but is voidable at the instance of the other non-alienating co-heirs. 5. The burden lay oft the alienee to prove either that there was a legal necessity in fact or that he made proper and bona fide enquiry as to the existence of such necessity or that he did all that was reasonable to satisfy himself as to the existence of such necessity. 6. The plaintiff failed to discharge her burden by pleading and proving the legal necessity. 7. The sale in plaintiff's favour is valid to the extent of 1/3 (1/12 + 1 4) share only and not 4/9, as found by the Court below. 8. The suit is bad for non-joinder of a necessary party and is liable to be dismissed. 9. The counter-claim of the defendant No. 3 is not affected by the dismissal of the plaintiff's suit. 10. The defendant No. 3 need only pay a proportionate price for the property over which she has a right to pre-emption.
Final Decision: 1. Second Appeal No. 484 of 1982 is allowed. The judgment and decree passed by Court below is set aside and instead the plaintiffs suit is dismissed. 2. Defendant No. 3's counter claim of pre-emption is decreed as aforesaid and decree be drawn in her favour as provided in form prescribed Under Order 20, Rule 14 of the Code of Civil Procedure. 3. The appeal No. 566 of 1982 filed by the plaintiff is dismissed so also the appeal filed by the defendant No. 4 Nanhe Lal i.e. S.A. No. 12 of 1983 is dismissed.
P.C. Pathak, J.
1. This judgment shall also govern the disposal of Second Appeal No. 566 of 1982 filed by Smt. Meera Devi (plaintiff) and Second Appeal No. 12 of 1983 filed by Nanhe Lal (defendant No. 4) against a common judgment and decree dated 18-10-1982 in Civil Appeal No. 21-A of 1981 of the Court of the Additional Judge to the Court of District Judge, Seoni, arising out of Civil Suit No. 69-A of 1979 of the Court of Civil Judge, Class I, Seoni and judgment and decree dated 17-1-1981.
2. For convenience, the genealogy of the defendants is reproduced:-
Roop Chand (died 1960) | --------------------------------------------- | | | Nanhe Lal Radhe Lal Sahiblal (dead) (Deft. No. 4) | Widow Shivkali Bai | (Deft. No. 3) | ----------------------------------------- | | Kanchan Singh Mohan Singh (Deft. No. 3) (Deft. No. 1) | Wife Maltibai (Deft. No. 5) | Son Santosh Kumar (Deft. No. 6)
3. Roop Chand had three sons, namely, Nanhe Lal, Radhe Lal and Sahib Lal. Sahib Lal predeceased Roop Chand, who died in 1960. After Roop Chand s death, the defendants and Radhe Lal partitioned their joint family property by registered deed of partition dated 17-9-1965. Khasras Nos. 260, 263 and 265, total area 17.51 acres fall to the share of the branch of Sahib Lal represented by defendants Nos. 1 to 3, 5 and 6. There was no partition amongst them and the suit lands were jointly held by these defendants.
4. Plaintiff Smt. Meera Devi brought a suit for partition and allotment of 2/3rd share of the suit lands to the share of defendants Nos. 1 and 2 and for possession or for possession of any other land of equal value and lastly for a direction to the defendants to render accounts of mesne profits from 5-2-1968 till the date of suit and thereafter till the delivery of possession of the lands on the allegations that in pursuance of agreement dated 10-1-1968 (Ex.P-1) she purchased the suit Khasras Nos. from defendants Kanchan Singh and Mohan Singh on consideration of Rs. 8,000/- by registered sale deed dated 5-2-1968 (Ex.P.-2). She had earlier filed Civil Suit No. 81-A of 1969 in the Court of 1st Civil Judge, Class II, Seoni, for possession of the suit khasra numbers, which was dismissed by judgment dated 23-2-1970. First Civil Appeal No. 34-A of 1970 was also dismissed on 14-8-1970 by judgment Ex.P-3 affirming the judgment of the trial Court observing that she was not entitled to be placed in possession of the property purchased by her and her only remedy was to sue for general partition and to ask for allotment of the property purchased by her to the share of her vendors and to claim possession of the property purchased or any other property of equivalent value. Therefore, she instituted the present suit on 28-11-1970 with the prayers for the aforesaid reliefs. The plaintiff pleaded that out of the consideration of Rs. 8,000/-, a sum of Rs. 3,000/- was paid to defendants 1 and 2 in cash on the date of agreement and the balance of Rs. 5,000/- was to be paid at the time of execution and registration of the sale deed. By amendment, the plaintiff pleaded that out of the said Rs. 5,000/-, the parties agreed that the plaintiff would repay Rs. 3,000/- directly to the creditor of vendors Seth Mangilal, Rs. 132/- towards Takavi loan and Rs. 210/- towards land revenue to the Government and the balance of Rs. 1,658/- was paid before the registering officer. In alternative the plaintiff pleaded that the payment of full consideration to the vendors was not a condition precedent to the passing of the title and that she acquired title from the moment the sale deed was registered in her favour.
5. Defendants Nos. 1 and 2 were proceeded ex parte. Defendant No. 3 filed written statement opposing the claim. She denied the payment of consideration and execution of the sale deed. The plaintiff paid Rs. 1,600/- only. They were not indebted to Mangilal. The plaintiff neither paid Rs, 3,000/- to Mangilal nor Rs. 210/- towards arrears of land revenue or Rs. 132/- towards tak
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