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2013 DIGILAW 251 (CHH)

HARISHCHANDRA BHAGDIKAR v. SANJAY BHAGDIKAR

2013-08-29

Radhe Shyam Sharma, SATISH K.AGNIHOTRI

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JUDGMENT Satish K. Agnihotri, J. :- 1. The appellant/plaintiff (hereinafter referred to as 'the plaintiff') is aggrieved by the judgment and decree dated 15.09.2008 passed by the 9th Additional District Judge, (F.T.C.) Bilaspur, in Civil Suit No. 28-A/2008, whereby the .suit of the plaintiff was dismissed. In the suit, the plaintiff had prayed for right of preemption to purchase the suit house situated at Tilaknagar, Bilaspur. The plaintiff had also prayed for grant of permanent injunction restraining the respondents/defendants (hereinafter referred to as 'the defendants') from selling the suit house to any person, other than the plaintiff. 2. The facts, in brief, as pleaded by the plaintiff before the Court below are that Late Amrit Rao Bhagdikar had three sons namely Krishna Rao, Dattatraya Rao and Harishchandra i.e. the plaintiff. The suit house was the joint family property. In the year 1962, the suit house was partitioned between the three sons with a condition that in future, if any of the brother wished to sell his share of the house, it could be sold to other brothers only, and not to any other person. Pursuant to the oral partition, a written agreement was also executed amongst the three brothers on 09.11.1962 in which the aforesaid condition was also mentioned. In the year 1991, the eldest brother Krishna Rao intended to sell his share of the suit house which was purchased by the plaintiff in the name of his son namely Dr. Jeevan Bhagdikar by two registered sale deeds. Thus, as per the plaintiff, he became the owner and possession holder of the 2/3rd portion of the suit house. After the death of the third brother namely Dattatraya, his legal heirs i.e. defendant No.1, 2 and 3 published an advertisement in the month of March 2005 for sale of their share of the suit house which was opposed by the plaintiff and expressed his intention to purchase the third share of the suit house on the ground of right of preemption. The said intention was published by the defendant in the newspapers also. The defendant No.2 by a letter dated 05.04.2005 informed the plaintiff that the value of his share of the suit house was Rs. 12,51,000/- and if the plaintiff intended to purchase the same, he should inform regarding the same within seven days. The said intention was published by the defendant in the newspapers also. The defendant No.2 by a letter dated 05.04.2005 informed the plaintiff that the value of his share of the suit house was Rs. 12,51,000/- and if the plaintiff intended to purchase the same, he should inform regarding the same within seven days. The plaintiff informed that he was willing to purchase the said portion of the suit house at Rs. 5,25,000/-. Since no settlement could be arrived at on the question of the price of the suit property, the plaintiff filed a suit for declaration of right of preemption and permanent injunction and also to fix the price of the suit property by the Court. In the suit before the Trial Court, the defendants denied the right of preemption of the plaintiff and took the plea that the registered partition deed did not have the condition of right of preemption. The suit was dismissed by the learned Trial Court holding that the document Ex.P-C1 i.e. the written agreement was a suspicious document and the plaintiff had no right of preemption over the suit property. Thus, this appeal. 3. Shri Dembra, learned counsel with Ms. Asha Patrikar, learned Advocate appearing for the plaintiff would submit that the Court below has erred in coming to the conclusion that Ex.P-C1 i.e. a deed of agreement was a suspicious document in absence of any specific averments in the written statement by the defendants. The evidences adduced by the plaintiff were also not considered in its true perspective. He would further submit that the Court below has erred by holding that Ex. P-C1 does not bear any date whereas it was specifically pleaded by the plaintiff that Ex. P-C1 and Ex. P-C2 were executed on the same date, therefore, it should have been held that the Ex.PC1 was executed on 09.11.1962. The Court below had further erred in holding that section 22 of the Hindu Succession Act, 1956 (for short 'the Act, 1956') would not be applicable in the present case. In support of his contention, Shri Bharat would rely on the decisions of the Supreme Court in Smt. Vijayalakshmi Vs. B. Himantharaja Chetty & Another, AIR 1996 SC 2146 , Shivji Vs. Raghunath (Dead) & Others, (1997) 10 SCC 309 . 4. In support of his contention, Shri Bharat would rely on the decisions of the Supreme Court in Smt. Vijayalakshmi Vs. B. Himantharaja Chetty & Another, AIR 1996 SC 2146 , Shivji Vs. Raghunath (Dead) & Others, (1997) 10 SCC 309 . 4. On the other hand, Shri Upendra Bharat, learned counsel appearing for the respondents would submit that it is not in dispute that the suit house was partitioned by registered deed on 09.11.1962 (Ex.P-C2). Late Dattatraya partitioned his share amongst his sons by execution deed dated 30.10.1971. The share of Krishna Rao was purchased by the plaintiff's son Dr. Jeevan Bhagdikar by registered sale deed dated 20.11.1991 and 23.11.1991. Advertisement, as aforestated, was published by the defendants for sale of their portion of the suit house which was objected by the plaintiff by filing a civil suit. The defendants had specifically pleaded in their written statement that the partition between the Krishna Rao, Dattraya and the plaintiff had already taken place by registered partition deed dated 09.11.1962 giving no right of pre-emption to the co-share holders. Further, Dattatraya Rao had partitioned his share of the suit house amongst the defendants by executing a deed on 30.10.1971 upon which they were having their possession. Shri Bharat would further submit that the right of preemption available under section 22(1) of the Act, 1956 only to the two or more heirs specified in class I of the schedule and anyone of such heir proposes to transfer his interest in the property or business, the other heirs will have a preferential right to acquire the interest proposed. Even the Ex.P-C1 was not filed completely wherein the last page was missing and the said deed did not contain the date of the writing of the deed and signature of the parties. Thus, the document Ex.P-C1 was rightly disbelieved and held to be a suspicious document. The right under section 22(1) of the Act, 1956 is not available to the plaintiff in case of the partition between the co-heirs since there was partition earlier. 5. Further, the partition deed dated 09.11.1962 also did not contain any such clause, thus, the suit of the plaintiff was rightly dismissed. In support of his contention, Shri Bharat would rely on decisions in Bhagirathi Chhatoi Vs. Adikanda Chhatoi & Others, AIR 1988 Orissa 285 and Krishnapada Roy alias Saha & Another Vs. 5. Further, the partition deed dated 09.11.1962 also did not contain any such clause, thus, the suit of the plaintiff was rightly dismissed. In support of his contention, Shri Bharat would rely on decisions in Bhagirathi Chhatoi Vs. Adikanda Chhatoi & Others, AIR 1988 Orissa 285 and Krishnapada Roy alias Saha & Another Vs. Parimal Chandra Saha & Another, AIR 2000 Gauhati 117. 6. We have carefully examined the contentions of the parties and also perused the pleadings, documents appended to the memo of appeal, and the records of the Courts below. 7. The plaintiff filed a civil suit under the title "suit for declaration and permanent injunction", holding the value of the suit property at Rs. 10,00,600/-. In the relief clause, the plaintiff sought a direction that the defendants are bound to sell the share of the suit property assigned to them on partition to the plaintiff only, on the value determined by the Court. Thus, a permanent injunction be granted against the defendants from selling the property to any other person. 8. In the pleadings, the plaintiff claimed right of pre-emption under section 22(2) of the Act, 1956 and also in accordance with the terms and conditions of the agreement deed. The defendants, in their written statement, contended that no condition was attached to the partition deed and the partition cannot be conditional. The plaintiff and father of the defendants have their share in the suit property which after partition among the sons of Late Amrit Rao Bhagdikar was allocated to Dattatraya, father of the defendants. Thus, even if there was a condition of this nature, that cannot be applicable. The plaintiff could have purchased the said share of the suit house if the plaintiff was ready and willing to pay the market price. In the case on hand, the plaintiff had offered the price much less than the market value of the suit property. In the partition deed, there was only a condition that other share holders would be entitled to information of sale of their respective share but no right to purchase the same at any rate. The fact of partition is not disputed. The value of the suit property was Rs. 15 lacs and the plaintiff was neither ready nor willing to purchase the said property on the market value. 9. The fact of partition is not disputed. The value of the suit property was Rs. 15 lacs and the plaintiff was neither ready nor willing to purchase the said property on the market value. 9. We have also examined the agreement deed and the partition deed, i.e. the Exhibit P-C1 and P-C2 respectively. In the agreement deed Ex.P-C1, dated nil, clause (3) provides that if any share holder wants to sell property of his share he will inform first the other share holders for purchase, in case they purchase the said property, the property would not be transferred to any other person. After the share holders declined to purchase the property, they would be free to sell the same to some other person. 10. Clause 3 of the agreement Ex. P-C1, reads as under: ^^3- ;fn dksbZ fgLlsnkj caVokjs ds ckn viuk fgLlk cspuk pkgs ml gkyr esa og fgLlsnkj vius nhxj nksuksa fgLlsnkjksa dks vius cspus ds fopkj dh [kcj nsxk vkSj nwljs fgLlsnkjksa dks ysrs rd mls vU; fdlh dks cspus dk gd ugha jgsxkA vxj nhxj fgLlsnkj [kjhnus ls badkj djrs gSa mlh gkyr esa og viuk fgLlk nwljs dks csp ldsxkA** 11. In other document i.e. the registered partition deed (Ex. P-C2), there is no mention of any clause as allegedly provided in the agreement deed Ex. P-C1. Thus, it cannot be held that the Trial Court was wrong in holding that the plaintiff could not prove authenticity of the agreement deed Ex. P-C1. The plaintiff had not produced the full document as there was no date and the document appears to be non-conclusive. The plaintiff had also failed to establish the fact by other oral evidences. This also proves as there was no such clause in the registered partition deed. The other exhibits are not related to the execution of the partition deed, thus, it is not necessary to deal with other exhibits as not relevant to establish the fact that there was any condition in the registered partition deed to give notice to other share holders before selling the property. However, it was found that proper notice was given to the plaintiff and public notice was also made as is evident from Exhibit P-C7 and C8. 12. Section 22 of the Act, 1956 provides for preferential right to acquire property in certain cases. However, it was found that proper notice was given to the plaintiff and public notice was also made as is evident from Exhibit P-C7 and C8. 12. Section 22 of the Act, 1956 provides for preferential right to acquire property in certain cases. Sub-section (1) of the Act, 1956 provides that an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class I of the Schedule, and anyone of such heir proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred. 13. Sub section (2) of Section 22 of the Act, 1956 deals with consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the Court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident, to the application. 14. Sub section (3) of Section 22 of the Act, 1956 provides that if there are two or more heirs specified in class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred. On bare perusal of the above provisions, it is clear that immovable property must be of an intestate or the property of the deceased without any document. 15. The term 'intestate' is defined under sub section 3(g) of the Act, 1956 that is - a person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect. 16. After partition, which was duly registered in the agreement, it was not found that there was any such clause as pleaded by the plaintiff. 16. After partition, which was duly registered in the agreement, it was not found that there was any such clause as pleaded by the plaintiff. Even if the alleged clause of the agreement that the share holder amongst sons of Amrit Rao Bhagdikar have right to pre-emption on the suit property, that would not be applicable after the share of Late Dattatraya, one son of Late Amrit Rao Bhagdikar, was partitioned again amongst his sons, i.e. the defendants. However, the property cannot be held as intestate. The defendants being the coparceners were entitled to shares in the property of their father who was one of the share holders legally. Thus, this provision will not be applicable in the case on hand. After partition, the parties were holding their respective shares independently, absolutely and unconditionally. 17. The case of Smt. Vijayalakshmi, AIR 1996 SC 2146 (supra), relied on by the plaintiff, is not applicable to the facts of the case as the disposition of the property was to the foster child who was not considered to be a stranger. In the facts of the case, even there was no specific clause under the registered document and other agreement filed by the plaintiff and the genuineness of the same could not be proved. 18. The case of Shivji, (1997) 10 SCC 309 (supra), is also not applicable to the case on hand as there was no right of pre-emption in the legal registered document. 19. In Bhagirathi Chhatoi, AIR 1988 Orissa 285 (supra), the High Court of Orissa observed as under: "4. So far as the second submission is concerned, even though I am inclined to agree with the submission, as a legal proposition, that the right under S. 22(1) is not available to be exercised after partition between the co-heirs since partition clothes the respective parties with authority to hold their shares independently and absolutely as their separate properties and that it could not be the intention of the legislature to put a clog on the power of alienation of independent owners of properties,..." 20. This view was accepted by the High Court of Gauhati in Krishnapada Roy alias Saha & Another, AIR 2000 Gauhati 117 (supra). 21. In view of the above analysis and the reasons stated hereinabove, there is no infirmity or illegality in the impugned judgment and decree passed by the Court below. 22. This view was accepted by the High Court of Gauhati in Krishnapada Roy alias Saha & Another, AIR 2000 Gauhati 117 (supra). 21. In view of the above analysis and the reasons stated hereinabove, there is no infirmity or illegality in the impugned judgment and decree passed by the Court below. 22. Resultantly, the appeal is dismissed. No order asto costs. 23. A decree be drawn accordingly. Appeal Dismissed.