The right of pre-emption ceases post division of property through partition; the suit alleging pre-emption rights is thereby barred.

(PER: THE HON'BLE MR. JUSTICE G BASAVARAJA)

The petitioner/defendant No.5 before the trial Court has preferred this Civil Revision Petition under Section 115 of Code of Civil Procedure against the Order passed on IA.1 filed under Order VII Rule 11(a) and (d) of CPC in Original Suit No.207 of

2016 by the Additional Civil Judge & JMFC, Ranebennur.

2. Heard arguments on Admission. Sri Prithviraj P Hittalamani, the learned Counsel appearing for the petitioner would submit that trial Court has committed a jurisdictional error and acted with material irregularity in law in rejecting the application. He would submit that a plain reading of the plaint, even accepting it as true, discloses that no enforceable legal right in favour of plaintiffs. The plaintiffs’ entire claim is founded on an alleged right of pre-emption, which by nature, is neither absolute nor perpetual and does not survive beyond partition. The admitted fact is established that a registered partition deed was executed between the family members whereby the suit property was allotted exclusively to defendants 1 to 4 and the partition deed which attained finality was acted upon, and is not under challenge. He would submit that once the partition is effected and exclusive title is conferred, no ownership subsist and consequently, the right of pre-emption ceases to exist. 3. He would submit that the records reveal that defendants 1 to 4, who became absolute owners of the property, issued legal notice offering to sell the property to the plaintiffs at the prevailing market rate. Plaintiffs expressed general interest but did not accept the offer nor did they indicate any willingness to purchase the property on the stated terms. They failed to quote a counter-prise or invoke any process for valuation as may have been available to them. The sale was then completed in favour of the petitioner through a registered sale deed, pursuant to a concluded contract between the legally competent parties. His further submission is that the plaintiffs did not take any steps to act upon the offer or initiate any negotiations or arbitration for determination of fair price, thereby waving any purported right. He submits that in law, the right of pre-emption, even if contractually contemplated, cannot be enforced once the party seeking to assert it fails to demonstrate his readiness and willingness to purchase at the time of offer. Hence, the conduct of plaintiff is not acting upon the afforded opportunity and subsequently filing the suit solely to challenge a registered transaction, will demonstrate clear malafides. He would further submit that the trial Court has erroneously deferred the question of maintainability of trial, despite being evident from the plaint itself that the suit is barred by law. The plaintiffs’ assertion that the sale price was less than market value is not a ground for invalidating the sale, particularly when they failed to purchase the property when it was offered.

4. He further submits that the alleged undervaluation does not constitute cause of action in favour of plaintiffs who had no subsisting legal interest in the property at the time of sale. The suit is barred for reasons that the right of pre-emption is not a recurring or subsisting right post-partition. The partition indeed dissolved the joint family status and created exclusive ownership, which was never challenged by the plaintiff. He submits that under Section 22 of Hindu Succession Act, 1956 , the right of preferential purchase applies only in cases of intestate succession and not after a mutually registered partition. Hence, he submits that the Registered Sale Deed in favour of the petitioner is a conclusive document and