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2012 DIGILAW 428 (RAJ)

Shyamol Roy v. Heera Bhai

2012-02-13

MEENA V.GOMBER

body2012
JUDGMENT 1. - Heard the parties and perused the record. By way of this writ petition filed under Articles 226 and 227 of the Constitution of India, the petitioner has assailed the order dated 5.7.2008 of Additional District Judge No. 4, Jaipur City. Jaipur. in Civil Suit No. 36/2007. whereby respondents' application under Order 7, Rule 11 of the Code of Civil Procedure (hereafter referred to as 'the Code') had been allowed and the petitioner's suit had been dismissed on account of having no cause of action and also on account of it being against the provisions of law. 2. Briefly stated, facts of the case relevant for the purpose of disposal of this writ petition, are that the petitioner had flied a suit for pre-emption against the respondents stating therein that ¼th of house No. 520 situated in Shankar Gujar Gall, hokri Ramchandraji. was purchased by him from its owner by way of registered sale-deed on 13.3.1992 and since then he has been in possession thereof as the owner. The ¾th portion of the said house had been purchased by respondent Nos. 1 to 3 from the then owner also, by way of registered sale-deed on 7.8.1991, and since then they were in possession thereof. However, respondent Nos. 1 to 3 gifted the said ¾th portion of the house, to respondent No. 4. 3. The petitioner's contention was that after purchasing this ¾th portion, respondents No. 1 to 3 had orally agreed to sell it him for a sum of Rs. 5,70,000/- towards which the petitioner paid a sum of Rs. 1100/- as advance. Once the respondents orally agreed to sell their ¾th portion of the house in dispute, and accepted the advance amount, they could not have gifted it to respondent No. 4. By filing his suit, the petitioner had prayed for right of pre-emption and injunction and also sought cancellation of the gift-deed in favour of respondent No. 4. 4. Execution of any oral agreement or receipt of Rs. 1.100/- towards the sale consideration, was denied. It was argued that as per the provisions of Preemption Act, 1966 (hereafter referred to as 'the Act') the right of preemption was not available to the petitioner in case of gift and that no cause of action has arisen to him. 4. Execution of any oral agreement or receipt of Rs. 1.100/- towards the sale consideration, was denied. It was argued that as per the provisions of Preemption Act, 1966 (hereafter referred to as 'the Act') the right of preemption was not available to the petitioner in case of gift and that no cause of action has arisen to him. The defendants (respondents) moved an application under Order 7, Rule 11 of the Code before the Trial Court and prayed for rejection of the plaint on these grounds. 5. This application was contested by the petitioner and the learned Trial Court, vide impugned order, allowed the application on the grounds that no cause of action arose in favour of the petitioner and that the suit was filed against the legal provisions of the Act. Allowing the defendants' application under Order 7, Rule 11 of the Code, learned Trial Court also passed decree of dismissal of suit. Said order has been assailed by the petitioner (plaintiff) by way of this writ petition. 6. During the arguments before this Court, learned Counsel for the respondents raised the issue of maintainability of this petition, stating that learned Trial Court had passed a decree of dismissal of suit for which right to appeal was available to the petitioner and that when appropriate remedy was available to him under the Code, he could not have Invoked the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. 7. Supporting the impugned order, my attention was also drawn by the learned Counsel for the respondents to the definition clause of the Act and it was submitted that admittedly the transfer to respondent No. 4 by respondent Nos. 1 to 3 alleged by the petitioner was neither a 'sale' nor 'transfer' as defined under the Act, as it was a gift and the provisions of the Act are not attracted in case of gift and, therefore, the learned Trial Court has rightly dismissed the Petitioner's suit at the preliminary stage on account of having no cause of action. 8. Heard and considered the arguments and perused the order impugned as also the legal provisions and the case-law cited at Bar. 9. Before proceeding further, it appears just and proper to look into the legal provisions as to what Preemption is, when does this right arise and to whom. 8. Heard and considered the arguments and perused the order impugned as also the legal provisions and the case-law cited at Bar. 9. Before proceeding further, it appears just and proper to look into the legal provisions as to what Preemption is, when does this right arise and to whom. Section 3 defines "Right of Pre-emption", which reads as under : "The" right of preemption" is the right accruing under section 4 of this Act, upon a transfer of any immovable property to acquire such property and to be substituted as the transferee thereof in place of and in preference to the original transferee and "pre-emptor' means a person having a right of preemption." The cases in which right of preemption accrues is given in section 4 of the Act, which reads as under : "Cases in which right of preemption accrues.-Subject to the provisions contained in section 5. the right of preemption shall, upon the transfer of an y immovable property, accrue to the persons mentioned in section 6. It recognizes three classes of the right of preemption, namely : 1. (A) co-sharers or partners In the property. (B) Co-sharers or partners in the joint wall. II. Owners of other immovable property with staircase, entrance or other right or amenity common to such other property. III. Owners of property servient or dominant to the property transferred. Now what is meant by Transfer? The word 'Transfer" is defined in section 2 (viii) of the Act, as under : "Transfer means a sale, or a mortgage where the final decree for foreclosure in respect thereof has been passed." The word "Sale" is defined in section 2 (vii) of the Act as below: "(a) meaning of - It appears that the present Act has adapted the definition of the term 'sale' from section 54 of the Transfer of Property Act, 1882 with suitable modifications. Section 54 of the Transfer of Property Act, 1882 defines 'sale' as under : "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part promised." The important ingredients in the definition of the word 'sale' are three, viz : (1) transfer of ownership in (immovable) property; (2) in exchange of price which may be either the whole price paid or partly paid and partly promised or the whole price is promised to be paid on any future date; and (3) subject-matter of the sale is an immovable property. The sale is a specie of the genus transfer." 10. Thus, the law of pre-emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owner's unfettered right of sale and compels him to sell the property to his co-sharer or to the holder of right of easement, as the case may be. The law of pre-emption creates a right which attaches to the property and on that footing only it can be enforced against the purchaser. Shri Audh Behan Singh v. GaJadhar Jaipuria and others, AIR 1954 SC 417 . The right thus arises only out of a valid, complete and bona fide sale. The right becomes enforceable only when there is a sale, but the right exists antecedently to the sale. 11. The foundation of the right being the avoidance of the inconveniences and disturbances which would arise from the introduction of a stranger into the land. The sale is a condition precedent not to the existence of the right but its enforceability and the plaintiff, in such suits. must affirmatively prove that the transaction is a 'sale'. The policy of the law is to keep out strangers and thus to maintain the privacy and compactness of joint owners and if the transaction in dispute Is capable of two interpretations, the Court should be disinclined to hold it to be a sale so as to force the owner of the property to transfer it to a person who is not of his choice. Ratiram and others v. Marnchand and others, AIR 1959 Pun. 117. The Court, of course, has to ensure that the transaction is a gift in actual sense and not a sham gift in order to avoid the claim of preemption. Ratiram and others v. Marnchand and others, AIR 1959 Pun. 117. The Court, of course, has to ensure that the transaction is a gift in actual sense and not a sham gift in order to avoid the claim of preemption. Learned Counsel for the petitioner has not brought anything on record to show that so called gift was a sham gift. 12. In the background of the above legal position, if the case in hand is looked into, it can very well be stated that the learned Trial Court has not committed any jurisdictional error by passing the order impugned, because the petitioner has not been able to bring anything to show that the gift from respondents Nos. 1 to 3 to respondent No. 4 was sham and in true sense it was 'sale' or 'transfer' as defined under the Act. Learned Trial Court has discussed the issue in detail and the order does not suffer from any error which may warrant interference of this Court. 13. Accordingly, the writ petition is found as devoid of merit, which deserves to be dismissed and is hereby dismissed. Petition Dismissed.Petition dismissed. *******