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Vithal Narayan Karandikar Vs. Maruti Narayan Kale - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number Second Appeal No. 155 of 1907
Judge
Reported in(1910)12BOMLR582
AppellantVithal Narayan Karandikar
RespondentMaruti Narayan Kale
DispositionAppeal dismissed
Excerpt:
.....of document-award-term in an award granting pre-emption to the co-owners over the joint family property-property sold through court in execution of decree-the condition of pre-emption attaches to private and voluntary sale-court sides not affected by the provision.;an award which effected partition of certain family property provided among other things that in the case of a sale by any of the co-sharers of his portion of the house of residence he should sell it to his co-sharer for rs. 1800, and that he should not sell it to an outsider until the expiration of two months from the date of a notice in writing saying that they (co-sharers) were not willing to buy it. the share of one of the co-sharers was subsequently sold in execution of a decree against him an purchased by an..........court that the correct reading and interpretation of the words 'if any one should have occasion to sell his share of the house of residence' was that the term of preemption was contemplated to attach to sales made privately and willingly and that therefore the attachment and sale in invitum the judgment-debtor was legal and proper.3. in the lower appellate court the same conclusion was arrived at upon the authority of shaikh ferasut ali v. ashoolosh roy (1871) 15 w.r. 455 where the learned judges say ' the only other privilege which the brothers had left to them under the ikrar was the right to become purchasers by pre-emption of mahabharut's share in the event of mahabharut selling, but mahabharut has not sold his share. it has been sold it is true, but by the action of the court in.....
Judgment:

Basil Scott, Kt., C.J.

1. In this case the plaintiffs sue as heirs of Narayan Govind Karandikar to have it declared that a purchase at a Court sale by the third defendant is not binding upon them. They based their claim upon the fact that by an award under which certain family property was divided between their father and his two cosharers of whom one is the judgment-debtor, it was provided that in case of a sale by any of the co-sharers of his portion of the house of residence he should sell it to his co-sharer for the aforesaid price of Rs. 1,800, that he should not sell it to an outsider until the expiration of two months from the date of a notice in writing saying that they (co-sharers) were not willing to buy it.

2. It was held by the first Court that the correct reading and interpretation of the words 'if any one should have occasion to sell his share of the house of residence' was that the term of preemption was contemplated to attach to sales made privately and willingly and that therefore the attachment and sale in invitum the judgment-debtor was legal and proper.

3. In the lower appellate Court the same conclusion was arrived at upon the authority of Shaikh Ferasut Ali v. Ashoolosh Roy (1871) 15 W.R. 455 where the learned Judges say ' the only other privilege which the brothers had left to them under the ikrar was the right to become purchasers by pre-emption of Mahabharut's share in the event of Mahabharut selling, but Mahabharut has not sold his share. It has been sold it is true, but by the action of the Court in execution of a decree passed against Mahabharut, which is quite a different thing. Moreover, if the plaintiffs Ashootosh and Joykishen wished to purchase their brother's share they could easily have done so by bidding at the sale which took place in execution of the decree.' These observations are directly applicable to the case before us.

4. It is argued, however, on behalf of the appellants that upon the authority of Karim Bakhsh Khan v. Phula Bibi ILR (1886) All. 102 the right of pre-emption is a right running with the land.

5. Whether the right of pre-emption in the present case is a right running with the land or not we do not decide, but if it is, it is not a right which will render the purchase in execution invalid. At most it would give the owner of the right a title to exercise that right as against the purchaser if the purchaser intended to sell voluntarily at some future date. With that question, however, we are not concerned in the present case.

6. We, therefore, dismiss the appeal with costs.


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