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2012 DIGILAW 232 (JK)

Amrita Pathania v. Sunita Jamwal & Anr.

2012-05-09

J.P.SINGH

body2012
ORDER The appellant-Amrita Pathania filed a Civil suit for Permanent Prohibitory Injunction restraining the respondents and their agents from transferring and alienating portion of House No.21 A/D Gandhi Nagar, Jammu falling in their respective shares as per the Family Settlement Deed dated 19.05.2000 registered on 22.05.2000 relying on Clause 4 thereof, which for facility of reference is reproduced hereunder:- 4. That in case either of the parties intend to transfer or sell, the property, the other two parties shall have the first right to purchase the same. Contesting the appellant s Suit, it was, inter alia, pleaded by the respondents that the appellant s Suit was not maintainable, in that, right of pre-emption could not as such be created by Agreement of parties when creation of such right was controlled by the provisions of the Jammu and Kashmir Right of Prior Purchase Act, 1993 (1936 A.D.). The trial Court of First Additional Munsiff (Forest Magistrate), Jammu dismissed the appellant s Suit deciding issue No.1 against her holding that the appellant s Suit was based on no Cause of action. The appellant s Appeal against the Decree of the trial Court too was dismissed by the Additional District Judge, Jammu additionally holding that Clause 4 appearing in the Settlement Deed, relied upon by the appellant, being hit by the provisions of Section 23 of the Contract Act, the appellant s Suit was not maintainable. The appellant has filed this Civil Second Appeal questioning the dismissal of her Suit. The appellant s learned counsel made only two submissions in support of the appeal viz; (1) The Courts below had not taken into consideration the provisions of Section 19 of the Jammu and Kashmir Hindu Succession Act, 1956 before ruling on the maintainability of the appellant s Suit, and had it been so done, the Suit had to be decreed. Therefore, the dismissal of appellant s Suit suffers from error of law giving rise to a substantial question of law. (2) The parties could create restriction on each others rights in immovable property with a view to preserve the family property and for peace and security of the family and the two Courts had erred in dismissing the appellant s Suit negating the option of the parties to create restrictions on the exercise of their rights in the immovable property. (2) The parties could create restriction on each others rights in immovable property with a view to preserve the family property and for peace and security of the family and the two Courts had erred in dismissing the appellant s Suit negating the option of the parties to create restrictions on the exercise of their rights in the immovable property. Supporting the view taken by the two Courts, the respondents learned counsel, on the other hand, would justify the dismissal of the appellant s Suit additionally urging that the property having not been sold by the respondents, the appellant had no Cause of action to maintain the Suit. I have considered the submissions of the learned counsel for the parties and perused the provisions of the Jammu and Kashmir Hindu Succession Act, 1956. The provisions of Section 19 of the Act refer to the preferential right, of an interest, in any immovable property of an intestate when it devolves upon two or more heirs specified in Clause 1 of the schedule appended to the Act. The Appellant s case in her Suit was not based on any such interest contemplated by Section 19 of the Act, but on the other hand, was founded on her preferential right to purchase the property of the respondents, which in terms of the Settlement Deed, and the averments made in the Plaint, is specifically admitted and acknowledged by her to have vested exclusively and absolutely in the respondents. There is, therefore, no merit in the appellant s learned counsel s first submission that the two Courts had erred in not considering the provisions of Section 19 of the Jammu and Kashmir Hindu Succession Act while considering the appellant s Claim, in that, the provisions of Section 19 were not attracted to the appellant s case as set up in the Plaint. Coming to the appellant s learned counsel s next plea, it is found that the appellant s Suit was based on respondents alleged obligation to offer their property for sale to the appellant before conveying it to someone else. Such obligation is stated to have arisen out of Clause 4 of the Settlement Deed. Coming to the appellant s learned counsel s next plea, it is found that the appellant s Suit was based on respondents alleged obligation to offer their property for sale to the appellant before conveying it to someone else. Such obligation is stated to have arisen out of Clause 4 of the Settlement Deed. It is no longer res integra that an absolute owner of an immovable property cannot be restrained to deal with his property in any manner whatsoever, in view of the provisions of Article 19 and 31 of the Constitution of India as applicable to the State of Jammu and Kashmir except in accordance with the law made by the legislature in this behalf. Restriction on such right by an Agreement between the parties shall, therefore, be void additionally in view of the provisions of Section 23 of the Contract Act. This apart, even in terms of the provisions of Section 10 of the Transfer of Property Act, which is reproduced hereunder for reference, any condition or limitation on owner s parting with or disposing of his interest in the property is void. Transfer of Property Act 10. Condition restraining alienation Where property is transferred subject to condition or limitation absolute restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him: Provided that property may be transferred to or for the benefit of a woman, so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein. The exception appearing in the above Section being not attracted to the appellant s case, her Suit based on Clause 4 of the Settlement Deed, which was void, has, therefore, been rightly dismissed by the two Courts. The Second contention of the appellant s learned counsel too is, therefore, prima facie found bereft of any substance warranting consideration on merits. For all what has been said above, no question still less substantial question of law arises for consideration in the Appeal, which is, accordingly dismissed.