Santhamma Karunakara Panicker v. Sivarama Pillai — 1991 DIGILAW 196 (KER)

JUDGMENT P. Krishnamoorthy, J. 1. S. A. No. 591 of 1990 arises out of O. S. No. 404 of 1983 and the legal representative of the defendant is the appellant. S.A. No. 606 of 1990 is against the decree in O. S. No. 27 of 1984 and legal representative of the 2nd defendant is the appellant. These two suits were jointly tried. O. S. No. 404 of 1983 is for redemption of a mortgage Ext. A1 dated 27-7-1965 and a purakkadam Ext. A2 dated 26-2-1969 in favour of the 2nd defendant's brother. The brother assigned the mortgage right to the 2nd defendant under Ext. B3 dated 19-12-1968. O. S. No. 27 of 1984 is a suit to set aside a sale deed Ext B5 dated 7-6-1969 executed by the 1st defendant in favour of the 2nd defendant, and to direct the defendants to execute a sale deed in favour of the plaintiffs for the same consideration. 2. The plaint schedule property, 9 cents and two buildings, was allotted to the mother who was the 1st plaintiff in O. S. No. 404 of 1983 for life (the 2nd plaintiff in O. S. No. 27 of 1984) under Ext. A3 partition deed dated 23-1-1961 with the vested remainder to the 6 children. Under the provisions of that document the mother was given a life estate and she was allowed to encumber the property upto the extent of Rs. 300/-. Ext. A1 mortgage was in respect of the plaint property as also another property which absolutely belonged to the 2nd plaintiff therein who is one of her sons. Thereafter, the mortgagee assigned the right to the 2nd defendant under Ext. B3 dated 19-12-1968 and a purakkadam Ext. A2 was executed on 26-2-1969 fixing a period of 5 years. A notice was issued to the mortgagee seeking redemption and the mortgagee-2nd defendant sent a reply notice stating that one of the owners of the equity of redemption had assigned her share to; him under Ext. A5 dated 19-10-1983 and that the plaintiffs are not entitled to redeem the plaint schedule property. Thereafter the plaintiffs filed O. S. No. 404 of 1983 for redemption of the mortgage and purakkadam as also O. S. No. 27 of 1984 to enforce the right of pre emption which the 1st plaintiff therein had under the provisions of Ext. A3 thereby asking for setting aside Ext. Thereafter the plaintiffs filed O. S. No. 404 of 1983 for redemption of the mortgage and purakkadam as also O. S. No. 27 of 1984 to enforce the right of pre emption which the 1st plaintiff therein had under the provisions of Ext. A3 thereby asking for setting aside Ext. B5 sale deed and to execute a sale deed in his favour by the 2nd defendant for the very same consideration. These two suits were jointly tried. 3. The main contention of the 2nd defendant was that he having become a part - owner of the equity of redemption under Ext. B5 sale deed dated 7-6-1969, the plaintiffs are not entitled to redeem the property and that their right, if any, is only to file a suit for partition and redemption as the integrity of the mortgage has been split. In O. S.27 of 1984 among other contentions, the 2nd defendant also raised a contention that the suit is barred under Art.97 of the Limitation Act. The Trial Court decreed both the suits as prayed for. The Trial Court held that the suit O. S. No. 27 of 1984 is not barred by limitation and that the 1st plaintiff is entitled to get a sale deed executed in his favour on the basis of the right conferred under Ext. A3 partition deed. This decree was confirmed by the appellate court also. The legal representative of the 2nd defendant in O. S. No. 27 of 1984 has filed these two appeals. 4. Before this Court counsel for the appellant raised only one contention, i. e. that the suit O. S. No. 27 of 1984 to set aside Ext. B5 sale deed and to have a sale deed executed in favour of the 1st plaintiff for the very same consideration is barred by limitation as it is beyond the time prescribed under Art.97 of the Limitation Act. According to him, if O. S. No. 27 of 1984 is barred by limitation, then the redemption decree also will have to be vacated as ha becomes a part - owner of the equity of redemption and the plaintiffs will not be entitled to redeem the whole mortgage. In that view of the matter, the only question that is to be decided is as to whether O. S. No. 27 of 1984 is barred under Art.97 of the Limitation Act. 5. In that view of the matter, the only question that is to be decided is as to whether O. S. No. 27 of 1984 is barred under Art.97 of the Limitation Act. 5. As stated earlier, the plaint property belonged to the mother and 6 children, the 2nd plaintiff in O. S.404 of 1983 and the 1st plaintiff in O. S. No. 27 of 1984 being one of the sons. A life estate was reserved in favour of the mother in respect of the property and it was further provided that on her death the property will absolutely belong to the 6 children including the plaintiff in the suits. In other words, a life estate was created in favour of the mother with a vested remainder to the 6 children. Clause.15 of Ext. A3 which relates to the plaint schedule property is to the following effect: xxx The aforesaid clause provides that if any of the owners of the property desires to sell the same, they shall give one month's notice to the other sharers and the property can be sold to a stranger only if the other shams are not willing to purchase the same. It is further provided that if any alienation is made in contravention of this provision, the other sharers will be entitled to get it set aside. It is by virtue of this provision that the plaintiffs have filed O. S. No. 27 of 1984 to set aside Ext. B5 sale deed executed by the 1st defendant in favour of the 2nd defendant of her one - sixth share in the plaint schedule property. That sale deed was dated 7-6-1969 and the present suit for enforcing the right under Ext. A3 was filed only in 1984, nearly after 15 years. Counsel for the appellant contended that such a suit to enforce a right of pre emption is governed by Art.97 of the Limitation Act. On the other hand, counsel for the respondents contended that this is nothing but a suit for specific performance of the contract and that the Article that is applicable is Art.54 and that he is entitled to file a suit within 3 years when performance is refused as contemplated under that Article. It was further contended by him that the present suit is governed by Art.59 as he is given power under Ext. It was further contended by him that the present suit is governed by Art.59 as he is given power under Ext. A3 partition deed to get it set aside if any sale deed is executed in violation of the provisions therein and if that article is applied the suit is within time. 6. After hearing counsel for the appellant and the respondents, I agree with the counsel for the appellant that the present suit is governed by Art.97 of the Limitation Act which reads as follows: Description of suit Period of limitation Time from which period begins to run To enforce a right of pre emption whether the right is founded on law or general usage or on special contract. One year When the purchaser takes under the sale sought to be impeached, physical possession of the whole or part of the property sold, or where the subject-matter of the sale does not admit of physical possession of the whole, or part of the property, when the instrument of sale is registered. Article 97 is a specific article which deals with a right of pre emption. That Article provides that to enforce a right of pre emption whether the right is founded on law or general usage or on special contract, such suit has to be filed within one year when the purchaser takes physical possession of the whole or part of the property sold, or, if the subject-matter of sale does not admit of physical possession, then from the date of registration of the instrument of sale. In this case both sides agreed that the former part of column 3 of Art.97 will not apply as the 2nd defendant was already in possession of the property as a mortgagee. If that be so, according to counsel for the appellant, the suit has to be filed within one year from the date of registration of the sale deed. The contention of counsel for the respondents is that the right provided for under Ext. A3 partition deed is not a right of pre emption but it is only an agreement between the parties that they will be entitled to get the sale deed set aside if it is executed without complying with the provisions contained therein. It was also contended by him that the suit is for specific performance of the agreement contained in Ext. It was also contended by him that the suit is for specific performance of the agreement contained in Ext. A3 and that it cannot come within Art.97 as the suit is not for enforcing a right of pre emption. In this connection he also relied on the decision of this Court reported in Noor Mohammed Kadir Pillai v. Sathyabhama Amma ( 1963 KLJ 167 ) wherein the identical provision in a partition deed was considered by this Court. But it is to be noted that the question of limitation was not in issue in that case and this Court was only considering the effect of a clause of pre emption in a partition deed. Counsel for the respondents particularly stressed the statement in that decision that the right of such a person is one for specific performance available under the Specific Relief Act. Counsel for the respondents contended that in view of the statement in the aforesaid decision it has to be held that the present suit is not in enforcement of a right of pre emption but only one for specific performance of an agreement. I am not inclined to agree with that contention. Even in that decision his Lordship proceeds on the basis that such a provision in a partition deed gives a right of preemption to the other parties and in order to enforce that right of pre emption this Court held that specific performance of the contract has also to be prayed for. I am not inclined to accept the contention of counsel for the respondents that the above decision lays down that such a suit is for specific performance and not in enforcement of a right of pre emption. It is well-settled that a right of pre emption is the preferential right to purchase a property in certain circumstances. The right of pre emption may arise out of a law or custom or usage or under a contract. All these three contingencies are dealt with in Art.97 of the Limitation Act. Clause.15 of Ext. A3 quoted above will clearly show that a preferential right is given to the other sharers to purchase the property, and it will certainly be a right of pre emption in favour of the sharers created under Ext. A3 partition deed. In other words, here is a case where a right of pre emption arose by virtue of a contract. A3 quoted above will clearly show that a preferential right is given to the other sharers to purchase the property, and it will certainly be a right of pre emption in favour of the sharers created under Ext. A3 partition deed. In other words, here is a case where a right of pre emption arose by virtue of a contract. The plaintiffs are seeking to set aside Ext. B5 sale deed not on any other ground but only on the ground of the preferential right as provided for in Ext. A3 partition deed and I have no hesitation to hold that it is only in exercise of the right of pre emption and to enforce the same they have filed the suit for setting aside the sale deed as also for specific performance. A pre emptor is entitled to have the sale set aside and is entitled to be substituted in the place of the vendee in case he exercises his option. The specific performance is prayed for only for putting him in the position of the vendee whereby he becomes the purchaser of the property for the very same consideration. His right to specific performance is not because of any other ground but only because of the right of pre emption which he obtains under the contract. In these circumstances, I hold that a right of pre emption is conferred on the 1st plaintiff and other sharers under Ext. A3 partition deed and the suit O. S. No. 27 of 1984 is only in enforcement of the right of pre emption founded on a special contract and that Art.97 is the Article applicable in such cases. It is well-settled that when an Article in the Limitation Act deals with a specific matter, the period of limitation will be determined in accordance with that Article and other articles will have no relevance in the matter. Art.97 specifically deals with the enforcement of a right of pre emption and as I have already held that the suit filed by the plaintiffs (O. S. No. 27 of 1984) is solely based on the right of pre emption, the suit is governed by that Article. And not by Art.54 or Art.59 as contended by counsel for the respondents. 7. And not by Art.54 or Art.59 as contended by counsel for the respondents. 7. Counsel for the respondents contended that his suit is not in enforcement of a right of pre emption but only to enforce the covenant contained in Ext. A3 whereby be is entitled to get the sale deed (Ext. B5) set aside. I find it difficult to accept the aforesaid contention. The 1st plaintiff has no case that he is entitled to challenge Ext. B5 sale deed on any ground other than the right which he obtained under Clause.15 of Ext. A3. That clause provides a right of pre emption to the other sharers and only in exercise of that right he is entitled to have the sale deed set aside and not on any other ground. In other words, the suit is filed in enforcement of his right of pre emption provided for in Ext. A3 and not on any other ground. In that view of the matter, though the suit is based on the provision contained in Ext. A3, the right that the plaintiff obtained is a right of pre emption and it is only in enforcement of that right he seeks to set aside the sale and hence Art.97 of the Limitation Act alone is applicable to the present case. 8. If Art.97 is the article applicable, then the suit O. S. No. 27 of 1984 is clearly barred by limitation. It is agreed by both sides that the latter portion of column 3 of Art.97 alone will be applicable as the 2nd defendant was already in possession of the property even before the sale deed. If that be so, the suit has to be filed within one year from the date of registration of the instrument of sale. Here the sale deed was registered in 1969 and the suit is filed in 1984. The suit filed after 15 years from the date of registration is clearly barred by limitation. The fact that the sale deed was executed in a different Sub Registrar's Office other than the Sub Registrar's Office within whose jurisdiction the plaint property is situate can be no answer, for, another property within the jurisdiction of that Sub Registrar's Office was also included as security in the sale deed and there is no case that the Chavara Sub Registrar (wherein Ext. B5 was executed) has no jurisdiction to register the sale. B5 was executed) has no jurisdiction to register the sale. 9. In view of what is stated above, S. A. No. 606 of 1990 has to be allowed and I do so. The decrees and judgments passed by the courts below in O. S. No. 27 of 1984 are set aside and the suit is dismissed with costs throughout. 10. As I have already dismissed O. S. No. 27 of 1984, the 2nd defendant - mortgagee by taking Ext. B5 sale deed became a part-owner of the equity of redemption. If that be so, the suit as framed now for redemption namely, O. S. No. 404 of 1983, is not maintainable. The plaintiffs therein will be entitled only for partition and redemption of their share in the plaint schedule property. But on that technical ground I am not inclined to dismiss that suit and in that view of the matter. I set aside the decree and judgment passed by the courts below in O. S. No. 404 of 1983 and remand that suit to the Trial Court for disposal in accordance with the judgment in these connected appeals. The plaintiffs will be at liberty to amend the plaint by making suitable prayers and impleading the necessary parties, if they so choose. S. A. No. 591 of 1990 is allowed as indicated above. There will be no order as to costs in that appeal. The parties will appear before the trial court on 5-8-1991.