Research › Search › Judgment

Madras High Court · body

2000 DIGILAW 269 (MAD)

D. Bhickam Chand Sowcar v. B. Dhilipkumar

2000-03-06

A.S.VENKATACHALA MOORTHY, B.AKBAR BASHA KHADIRI

body2000
Judgment : B. Akbar Basha Khadiri, J. 1. The appeal has arisen in the instant case against the judgment rendered by the learned single Judge in C.S.No.1419 of 1994 dated 7.7.1999. The first defendant is the appellant herein. The plaintiff and defendants 2 to 4 are the sons of the first defendant. Item No.1 of the suit properties is a lodging house which is run under the name and style of Brindavan Lodge is an ancestral property of Bhikam Chand Sowcar. In a partition effected between Bhikam Chand Sowcar and his brothers, items 1 of the suit property was allotted to him along with some cash and certain other properties. It is the case of the plaintiff that the defendants 1 and 2 are in management of the lodging house and from out of the surplus earnings available from the lodging house, Bhikam Chand, who is the kartha of the family purchased items 2 to 5 of the suit properties. In fact he constructed a Kalyana Mandapam under the name and style of Santhi Kalyana Mandapam bearing door No.85, Bazaar Road, Mylapore. He had also purchased certain other properties at Aduthurai and. Chidambaram. Disputes also arose between the first defendant and his son, the second defendant herein, which resulted in the first defendant instituting a suit in O.S.No.5857 of 1991 on the file of the City Civil Court, Madras for the relief of permanent injunction restraining the other sharers from interfering with the day- to-day management of the lodging house. The second defendant in turn filed a suit in C.S.No.1356 of 1991 on the file of this Court for partition and separate possession of his 1/8th share in the property bearing door No.234, R.K. Mutt Road, Mylapore, Madras-4 and for mesne profits etc.. In that suit, by an order dated 28.7.1992 made in application No.837 of 1917 this Court appointed an auditor to peruse the various accounts of the lodging business. As per the order passed in Application No. 190 of 1993, this Court appointed a receiver and when the receiver was about to take charge, the first and second defendant entered into a compromise. Accordingly, the second defendant and fourth defendant were given half share each in the share held by the father i.e., out of the father's 1/4th share 1/8th share was given to the second defendant and 1/8 share was given to the fourth defendant. Accordingly, the second defendant and fourth defendant were given half share each in the share held by the father i.e., out of the father's 1/4th share 1/8th share was given to the second defendant and 1/8 share was given to the fourth defendant. Now the plaintiff, who is one of the sons of Bhikam Chand Sowcar has come forward with the instant suit for allotment of 1/4th share in the properties. 2. The second defendant filed a written statement contending that by virtue of the compromise entered into earlier suit, plaintiff and defendants 2, 3 and 4 were to get 1/4th share each in the lodging house business but the plaintiff did not agree for a compromise. Therefore in the appeal preferred by the plaintiff in O.S.A.No.156 of 1994, in C.S.No.1356 of 1993 the Division Bench of this Court has recorded the compromise and declared that the compromise is binding on all the parties except the plaintiff. According to the second defendant he has been in charge of the management of the lodging house and he had been paying income periodically to the plaintiff and other sharers. According to him he is not in a position to state whether the plaintiff has any right or share over the other properties mentioned in the schedule, because the first defendant was claiming those properties as his self acquisitions. He had also pleaded that if this court comes to the conclusion that items 2 to 5 are also joint family properties and in the event of a decree in favour of the plaintiff, he is willing to exercise his pre-emptive right to purchase the property. 3. The learned single Judge of this Court has come to the conclusion that item No.1 lodging house business was admittedly an ancestral property; that the first defendant as kartha had purchased items 2 to 5 from out of the surplus income available from the ancestral nucleus. Accordingly, a preliminary decree for partition and allotment-of the plaintiff’s 1/4th share in all the suit items was granted. The learned single Judge has also held that the plaintiff is entitled to mesne profits but negatived the right of preemption claimed by the second defendant. Aggrieved by the judgment of the learned single Judge, the first defendant alone has come forward with the instant appeal. 4. The learned single Judge has also held that the plaintiff is entitled to mesne profits but negatived the right of preemption claimed by the second defendant. Aggrieved by the judgment of the learned single Judge, the first defendant alone has come forward with the instant appeal. 4. Heard the learned counsel for the appellant as well as the learned counsel for the respondents. 5. The only objection raised by the learned counsel for the appellant is that items 2 to 5 are the self acquisitions of the appellant, but the learned single judge has overlooked this aspect. It should be pointed out that the first defendant had not filed any written statement nor raised any contention before the learned single Judge in this regard. In fact, when a pointed question was put to the learned counsel for the appellant, the learned counsel could not say when the appellant/first defendant represented the written statement which he earlier had taken from the Registry to rectify the defects. In the absence of the first defendant not filing any written statement, it cannot be said that he can raise a plea at the appellate stage, that items 2 to 5 properties are his self-acquisitions. The only contesting defendant is the second defendant. He had not even asserted that items 2 to 5 are self acquisitions of his father; he had only stated that the first defendant/appellant has been claiming that items 2 to 5 are his self acquisition. It is admitted that there had been a partition during 1946 between the appellant and his brothers in which item No.1 lodge and certain cash and jewels were allotted to the appellant herein. It is admitted that the sale deeds for items 2 to 5 were in the name of the appellant/first defendant, kartha but the evidence of P.W.1 is to the effect that the father had no other independent income. The contesting second defendant had admitted that item No.1 business was yielding surplus income. When it is evident that item No.1 lodging business was ancestral property and it was capable of yielding good income, it is for the appellant, who is the kartha of the family to prove that acquisition of items 2 to 5 are not from out of the joint family nucleus but out of his self acquisition. When it is evident that item No.1 lodging business was ancestral property and it was capable of yielding good income, it is for the appellant, who is the kartha of the family to prove that acquisition of items 2 to 5 are not from out of the joint family nucleus but out of his self acquisition. The first defendant not having filed any written statement or got himself examined before the court and even the second defendant having not spoken anything in this regard, it can not be said that the first defendant can claim these properties i.e., items 2 to 5 to be his self-acquisitions. 6. A faint attempt has been made by the first defendant to contend that the learned single Judge ought to have granted the right of pre-emption. The right of pre-emption was sought for by the second defendant, but it was not sought for by the appellant herein. We feel that the appellant has no locus standi to raise such a plea here. Two views were expressed earlier i.e., whether the right of pre-emption is a personal right available to a sharer or whether the right of pre-emption is right, which goes with the property. The Apex Court has settled the conflict and has observed that the right of pre-emption is a right attached to the land which imposes a limitation or disability upon the ownership of a property and on that footing only it can be enforced against the purchaser. The right of pre-emption is envisaged in Section 4 of the partition Act and it extends only to dwelling house. For the introduction of outsiders in a residential house would lead to all kinds of complications. The right of pre-emption emerges only when a property, more specifically, a dwelling house belonging to an undivided family has been transferred to a person, who is not a member of such family and such transferee sues for partition. It cannot be said that in a suit for partition, the right of pre-emption can be given to any party at the threshold of a preliminary decree. 7. We feel, the learned single judge has rightly rejected the right of pre-emption claimed by the second defendant. We do not find any merits in the appeal and the appeal is liable to be dismissed and accordingly it is dismissed. 8. In the result, the appeal is dismissed with costs. 7. We feel, the learned single judge has rightly rejected the right of pre-emption claimed by the second defendant. We do not find any merits in the appeal and the appeal is liable to be dismissed and accordingly it is dismissed. 8. In the result, the appeal is dismissed with costs. Consequently, CMP.No.18596 of 1999 is also dismissed.