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Gauri Shanker Vs. Madan Mohan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Regular First Appeal No. 199
Judge
Reported in1983WLN419
AppellantGauri Shanker
RespondentMadan Mohan and ors.
DispositionAppeal dismissed
Cases ReferredKanhaiyalal v. Gourilal
Excerpt:
rajasthan pre-emption act, 1966 - section 6--right of preemption--no almirahs, no 'alas', no appurtures in second or first storey--separate parti wall in third storey--entire intervening wall portion of house in possession of deceased--held, merely resting of stone slabs on intervening wall would not give right of pre-emption.;the very fact that a separate 'parti' wall was constructed by the plaintiff in the third storey along with the fact that there are no appurtures, 'almirahs' and, 'alas' towards the plaintiff's house, either in the first or the second storey, go to show that the intervening wall cannot be held to be a joint one. this conclusion is supported from a bare perusal of the site plan ex. i, which shows that the entire intervening wall was part of that portion of the house,.....dwarka prasad gupta, j.1. this appeal arises out of a suit for pre-emption of a house property situated in the city of udaipur. raghunath had two sons surajmal and gaurishanker. surajmal was the elder son from his first wife, while gaurishanker was the younger one from his second wife smt. bhanwaribai. surajmal executed an agreement to sell the house in dispute in favour of defendant madanmohan for a sum of rs. 18,000/- on december 14, 1968. as surajmal did not execute a sale deed in pursuance of the aforesaid agreement to sell, madanmohan brought a suit for specific performance of the contract against surajmal, which was decreed by the court of senior civil judge, udaipur. surajmal died during the pendency of that suit and in consequence of the decree for specific performance passed in.....
Judgment:

Dwarka Prasad Gupta, J.

1. This appeal arises out of a suit for pre-emption of a house property situated in the city of Udaipur. Raghunath had two sons Surajmal and Gaurishanker. Surajmal was the elder son from his first wife, while Gaurishanker was the younger one from his second wife Smt. Bhanwaribai. Surajmal executed an agreement to sell the house in dispute in favour of defendant Madanmohan for a sum of Rs. 18,000/- on December 14, 1968. As Surajmal did not execute a sale deed in pursuance of the aforesaid agreement to sell, Madanmohan brought a suit for specific performance of the contract against Surajmal, which was decreed by the court of Senior Civil Judge, Udaipur. Surajmal died during the pendency of that suit and in consequence of the decree for specific performance passed in the suit filed by Madanmohan, a sale-deed was executed by the Senior Civil Judge, Udaipur, in favour of Madanmohan on October 26, 1970. Gaurishanker thereupon filed a suit for pre-emption on May 18, 1971 on the allegation that he was a co-sharer as there was a joint wall between the house of Gaurishanker and the house which was subject matter of sale and the patties of both the houses were made to rest on the joint wall. Madanmohan defendant No. 1 contested the suit on the ground that a partition had taken place between the plaintiff and deceased Surajmal on November 5, 1954 and since both the plaintiff and Surajmal were living separately and were in possession of separate portions of the property, the plaintiff was not a co-sharer of the house sold by deceased Surajmal It was also denied that there was a joint wall between the two houses, but it was asserted by defendant Madanmohan that here were two separate walls. The learned Additional District Judge dismissed the plaintiff's suit for preemption. Hence this appeal has been filed in this Court.

2. The first question which requires determination in this appeal is as to whether the plaintiff is a co-sharer of the property, which was subject matter of sale, and as much he has got a preferential right of purchase in respect of the said property. The plaintiff's case is that the intervening wall between the house in dispute and the plaintiff's house was a joint one between him and his brother Surajmal deceased, who sold the property in dispute to defendant No. 1 and as such he was a partner in the wall and consequently he was a co-sharer in the property sold. The defendant No 1 has pleaded that a partition has taken place between the two brothers during the life-time of Surajmal and that both brothers were in possession of their respective shares since November 5, 1944.

3. It appears from the record that the plaintiff Gaurishanker had earlier filed a suit against Surajmal for possession. In that suit, the plaintiff's case was that Raghunath, father of the plaintiff and Surajmal, was owner of two houses known as 'bada makan' and 'chota makan'. A will was alleged to have been executed by Raghunath on May 16, 1944 giving away 'bada makan' to his sons Surajmal and Gaurishanker in equal sharers, while the 'Chhota makan' was given away by Raghunath to his second wife Smt. Bhanwar Bai with full powers of disposal. It was alleged that Raghunath died in May, 1944 while Bhanwar Bai died in May, 1955. Gaurishanker alleged that Surajmal was put in possession of his share of the house some time after Raghuoath's death, but later on Surajmal also took possession of other portions of the house from time to time. In that suit, Surajmal admitted that he was put in possession of the half share of 'bada makan' just before his father's death. He also stated that Bhanwar Bai executed a will on November 5, 1944 by which she gave her property half and half to Gaunshanker and Surajmal and that he was in possession of half share of 'Chhota raakan' by virtue of the will of Bhanwar Bai. The suit for possession filed by Gaurishanker was dismissed by the trial court. The first appeal was heard by a division bench of this Court, being D.B. Civil Regular First Appeal No. 79 of 1951 Gaurishanker v. Surajmal. This Court by its decision dated August 18, 1954 held as under:

on a careful consideration, therefore of the evidence, we are satisfied that the trial court was right in coming to the conclusion that the document Ex. D-1 was a will, and its execution had been proved. Under that will, the plaintiff and the defendant were given half share each in the property left by Mst. Bhanwar Bai. If the defendant is in possession of more than half share, the plaintiff's remedy is by a suit for partition. The present suit is clearly misconceived.

4. The aforesaid judgment clearly goes to show that the parties were in exclusive possession of separate portions of the property left by Raghunath's wife Bhanwar Bai. The suit for possession filed by Gauri Shanker was dismissed by this Court with the observation that if Surajmal was in possession of more than his half share, then Gaurishanker could bring a suit for partition. It was on the basis of these observations made by the division bench of this Court in the aforesaid judgment that it was asserted on Behalf of the appellant Gaurishanker that the property was still joint and the plaintiff was a co-sharer. It may be observed that this Court in the earlier decision did not come to the conclusion that the parties were in joint possession of the entire property or that they were still holding possession over different apartments as co-sharers thereof. What this Court observed was that if the plaintiff thought that the property left by Smt. Bhanwar Bai was joint property then he should bring a suit for partition and not a suit for possession. However it appears from the decision of this Court dated August 18, 1954 that parties were in possession of separate portions of the house even before the earlier suit was filed in the year 1952. It is also not in dispute that even after the decision of this Court in that case, no suit for partition was ever filed by plaintiff Gauri Shanker, which fact also goes to show that the plaintiff did not consider at any time that he and Surajmal were in joint possession of the property in dispute so as to claim partition thereof. Thus, it appears that Surajmal was in exclusive possession of a portion of the house from even before the earlier suit was filed in the year 1952 and that no suit for partition was brought by Gaurishanker even after the decision of the earlier case by this Court on August 18, 1954 The present suit for preemption was filed on May 18, 1971, after a sale-deed was executed by the Senior Civil Juge, Udaipur on October 26, 1970, in pursuance of the decree for specific performance. It is, therefore, fully established that Surajmal was in separate possession of a portion of the house 'Chhotamakan' in his own right and not as a co-sharer.

5. The next question, which has been raised by the earned Counsel for the appellant is that the intervening wall between the portion under the occupation of the plaintiff Gaurishanker and the portion of the property which was subject-matter of sale was joint and as such the plaintiff had a right of pre-emption. The plaintiff's case in this respect is based on three circumstances, namely, that the patties of both the parties rest in the intervening wall; that one end of the girder of the plaintiff's house are kept on the said intervening wall between the houses of the plaintiff and the property which was subject matter of sale; and that there were two small 'alias' vk ys towards the plaintiff's house in the said intervening wall. The mere fact that patties of the plaintiff's house are placed on the intervening wall can not be a ground for holding that the intervening wall was a joint wall, particularly in face of the admission made by the plaintiff himself that the wall in the second storey, above the alleged joint wall was built by Surajmal deceased. No objection appears to have been raised by the plaintiff in respect of the construction of the second storey wall. Moreover, it is also m evidence that in the 3rd storey the plaintiff has constructed a separate 'parti' wall 3/4' wide adjoining the intervening wall. If the intervening wall would have been joint one, as alleged by the plaintiff, then the plaintiff would not have constructed a separate 'parti' wall 3/4' wide adjoining the wall in dispute, in the third storey. Earned Counsel for the parties took me through the evidence on record. A copy of the site-plan, which bears the signatures of both, Surajmal and Gaurishariker, and which was produced in the earlier suit, has been placed on record of this case as Ex. 1. in that site-plan the portion of the house in possession of Surajmal even at that time has been painted in red colour. The intervening wali has also been shown in red colour and appears to be completely within the portion said to have been in exclusive possession of Surajmal. It is also significant to note that there are almirabs and appuratures in the said intervening wall opening towards the portion of Surajmal which is subject matter of sale, while no appurture or almirahs were shown on the side of the plaintiff. The plaintiff's own case is that the portion shown in the site plan Ex.1 in green colour and lying towards the west was in his possession, while the portion of the house shown in red colour was in Surajmal's possession. The plaintiff also admitted that in the ground floor, there are 'alas' and 'almirahs' on the side of Su ajmal's portion and there were doors for going towards the defendant's portion, which have since been closed. If the intervening wall would have been joint some appurtures, 'alas' or almirahs might have existed in that wall opening towards the plaintiff's house. Not only the doors but also the ventilators opening towards the plaintiff's house were closed by a wall which is straight towards the hover of Gaurishanker without any 'alas' or almirahs and this goes to show that the intervening wall was not a joint one. The plaintiff has asserted in his statement as P.W. 1 that there were two 'alas' in the ground floor in the wall in dispute' but no such plea was taken by him in the plaint. In the plaint the wall was alleged to be joint only on the ground that patties of the house of both the parties have been made to rest on the said wall. The very fact that a separate 'parti' wall was constructed by the plaintiff in the third storey along with the fact that there are no appurtures, 'almirahs' and 'alas' towards the plaintiff's house, either in the first or the second storey, go to show that the intervening wall cannot be held to be a joint one. This conclusion is supported from a bare perusal of the site plan Ex. 1, which shows that the entire intervening wall was part of that portion of the house, which was in possession of Surajmal deceased.

6. Section 6 of the Rajasthan Pre-emption Act, 1966 specifies the persons to whom right of pre-emption accrues in respect of sale of immovable property as under:

(i) co-sharers of or partners in the property transferred.

(ii) Owners of other immovable property with a staircase or an entrance or other right or amenity common to such other property and the property transferred.

(iii) owners of property servant or dominant to the property transferred.

7. The right of pre-emption could accrue to the plaintiff only if he was a co-saharer of the property or had a staircase or an entrance or other right or amenity common to such other property and the property sold or he was in enjoyment of a right of easement. The plaintiff has come with a specific case that he was a co-sharer and that the intervening wall between the houses of the plaintiff and the property sold was joint. As the plaintiff has failed to lead satisfactory evidence to prove both the allegations made in the plaint, it is difficult to uphold his alleged right of pre-emption. Merely the resting of stone slabs on the intervening wall would not give any right of pre-emption to the plaintiff over the disputed property.

8. The plaintiff-appellant filed an application under Order 41 Rule 27 CPC in this Court seeking permission to produce a site plan and some photographs in order to show that one end of the iron girder of the plaintiff's house rests on the disputed wall. Even if the documents sought to be produced by the plaintiff-appellant are taken into consideration, they do not carry the plaintiff's case much further, as the site plan Ex.A and the photographs marked Exs. B C, and D go to show that on the ground floor the wall is flat on the side of the plaintiff, except two alas' 7' deep; while the doors and ventilators have all been closed in such a way that almirahs and open spaces (alas) in the intervening wall were left towards the portion which was in possession of Surajmal. If the intervening wall would have been a joint wall, while closing the doors and ventilators some 'alas' should have ordinarily been left opening towards the portion of the plaintiff. Even the alleged 7' deep 'alas' do not appear to have been left while the appurtures in the intervening wall were closed. It also appears from the documents which are now sought to be produced, that the stone slabs have been placed North South and not from East to West. The only fact which appears from the photographs marked E, F and G appears to be that one end of the two iron girders have been inserted in the intervening wall and on these girders the pattis of the roof have been made to rest. Thus, even if it be accepted that the two iron gird ins of the plaintiff's house at one end have been inserted into the intervening wall it would not support the case of the plaintiff. As a matter of fact, the plaintiff came to the court with a case that the 'pattis' of the house of the plaintiff rests on the intervening wall between the two houses and on that basis it was claimed by the plaintiff Gaurishanker that the said intervening wall is a joint wall. However, the case of the plaintiff of a common wall is negatived by the very fact that a separate 'patti' wall was constructed by the plaintiff himself on the third storey adjoining the intervening wall. If the wall would have been a joint one, the same could have been used by the plain tiff for resting his stone slabs in all the stories. Besides that, ordinarily there should have been some appurtures, 'alas' or almirahs in the intervening wall opening towards the plaintiff's side, because the plaintiff could have claimed half of the width of the wall, which is 18' wide. It is not disputed that there were almirahs and alas in said wall opening towards Surjmal's portion. Thus, no usefuJ purpose would be served by admitting the documents now sought to be produced by the plaintiff, as they would not be necessary for a just decision of the dispute between the parties, within the meaning of Order 41, Rule 27 CPC. The site-plan and the photographs could have been produced by the plaintiff in the trial court and no reason worth the name has been assigned for non-production of the said documents at the earlier stage of the litigation and the delay in their production before the court. Moreover, it should be the requirement of the court for the purposes of arriving at a just conclusion. As I have already observed above, the documents would not be of much assistance to the court and do no throw further light on the rights of the parties. As such they are not required by the court for arriving at a just decision of the dispute between the parties. The facts that the ventilators and the doors in the intervening wall on the first floor were closed, leaving the entire width of the wall towards Surajmal's aide and the construction of the wall in the second storey by Surajmal alone and of a separate 'parti' wall 9' wide adjoining the wall in dispute by the plaintiff in the third storey conclusively go to prove that the disputed wall is not a joint one.

9. In Baijnath v. Janki Prasad AIR 1930 Allahabad 318, it was held that co-ownership implies that each co-owner should have a reasonable user of the thing owned is common, and in that case a co-owner was allowed reconstruct an almirah in a party wall, on tie ground that it was legitimate user of the wall without interfering with the enjoyment of the wail by the other party and without doing anything which would weaken, damage or diminish the use of the wail enjoyed in common by the parties.

10. It was then argued by the earned Counsel for the appellant that at best the wall of the first storey was a joint one and even if the wall in the second storey was constructed exclusively by Surajmal, then the newly constructed wall would acquire the same character as the wall over which it stands. It a party will is raised by a co-owner with the acquiescence of the other, over the old party wail then there can be no doubt that the newly constructed portion must assume the same character as the old party wail But the basic fact which must be proved before applying the aforesaid argument is that the first storey wall is a common wall. In the present case, the plaintiff has not teen able to prove that here was a joint wall even in the ground floor and as such the question that the raising of the wall m the second storey exclusively by Surajmal should be considered to have been made by him on behalf of all the co-sharers and the wall so raised should be considered to be a party wall does not arise. The newly constructed wall may or may not be a wad exclusively belonging to the party constructing it, as it would depend upon the circumstances of each case.

11. An argument was advanced on behalf of the respondent No. I that there was no sale of immovable property by Surajmal within the meaning of Section of the Rajasthan Preemption Act and further that in the alternative if it was a 'sale', which was made in execution of the decree of a Civil Court, the same was a court sale or involuntary sale, as such the right of pre-emption did not accrue on account of the provisions of Section 5 of the Rajasthan Preemption Act. Surajmal had entered into an agreement to sell on December 14, 1968, but as already stated above, on his failure to execute a sale-deed, the purchaser Madanmohan filed a suit for specific performance of the agreement to sale and in pursuance of the decree passed in the aforesaid suit, a sale-deed was executed by the court on Oct.26,1970 It was argued by the learned counsel for the respondent that there being no sale by Surajmal, right of preemption could accrue to the plaintiff It may be observed in this connection that although Surajmal might not have executed a sale-deed but when a sale deed was executed by the court in pursuance of the decree for specific performance, the execution of the document of sale by the court has the same effect as the execution by the party himself, who was directed to execute the sale-deed by the decree of the Civil Court or on whose behalf the sale-deed was executed by the Court. Order 21 Rule 34 makes a provision for execution of a document by the court in pursuance of a decree for specific performance of an agreement to sell, where the judgment-debtor neglects or refuses to obey the decree. Sub-rule (5) of Rule 34 of Order 21 CPC provides the form in which execution of the document is to be made by the court, on the failure of the judgment-debtor to execute the same in pursuance of the decree passed by the court. The court executing the document under Order 21 Rule 34 CPC specifically mentions the fact that the document executed by the court will have the same effect as the execution of the said document by the party ordered to execute the same.

12. In Dinendranath Sannyal and Ors. v. Ramcoomar Ghose and Ors. 8 Ind. App. 65, their Lordships of the Privy Council pointed out the distinction between a private sale in satisfaction of a decree and the sale in execution of a decree and held that the private sale made in execution of a decree would rot tantamount to and has not the same effect as the sale in execution of a decree. This Lordships of the Privy Council observed as under in the aforesaid case:

There is a great distinction between a private sale in satisfaction of a decree and a sale in execution of a decree. In the former the price is fixed by the vendor & purchaser alone in the latter the sale must be made by public auction conducted by a public officer, of which notice must be given as directed by the Act, and at which the public are entitled to bid. Under the former the purchaser derives title through the vendor, and cannot acquire a better title than that of the vendor. Under the latter the purchaser, not with standing he acquires merely the right, title and interest of the judgment-debtor, acquires that title by operation of law adversely to the judgment-debtor, and freed from all alienations or in cumbrances effected by him subsequently to the attachment of the property sold in execution.

13. An argument simlar to one advanced before me was raised before Harries, CJ in Gopi Nath v. Namai Charon Das and Anr. : AIR1951Cal551 and it was pointed out by the learned Chief Justice that in such cases the court merely executes the document of transfer as an a sent of the judgment-debtor and the transfer is in fact and in law a transfer by the judgment-debtor and the mere fact that the conveyance is executed by the court does not make any difference. His Lordships observed as under:

In the first place he contended that Section 26F, Bengal Tenancy Act would not apply to this case at all because the conveyance here was conveyance by the court and not by a co-sharer. It is true that in this case the conveyance or deed of Sale was executed by the court merely because the defendant had refused to carry out k decree for specific performance. The court executed the transfer not as owner of the property, as obviously the court had no title at all. The court merely executed this transfer as an agent as it were of the defendant and the transfer is in fact and in law a transfer by the defendant who was a co-sharer. That being so there is no substance in this contention.

14. A similar view was also expressed by Justice Vaidlingam, of the Kerala High Court, as he then was, in Neelkantan Velu v. Ghee Vargese Kortuthu ILR 1960 Kerala 678. In that case also a conveyance was executed by the court in pursuance of a decree for specific performance of an agreement to sell the suit properties The question which came up for consideration before the Kerala High Court was as to whether the judgment-debtor was not a party to the transaction of sale on the ground that the sale was executed by the court. After referring to the provisions of Order 21 Rule 32 and 34, the learned Judge observed as under in the aforesaid case:

It will be clear from Sub-rule (5) extracted above that the document so executed shall have the same effect as the execution of a document by a party ordered to execute the same.... I have already mentioned that in the document, though executed by the court, the Judge signs in the name of the party & also puts his own signature along with the seal of the court. I am only concerned with the interpretation to be placed on subsection (3) of Section 9 which uses the expression 'a party to the transaction.' It cannot certainly be stated in documents executed by the court in such circumstances, the court is a party to the transaction. None else than the judgment-debtor in such circumstances can be considered to be a party to the transaction.

15. A similar view was also expressed by a learned Judge oft he Gujarat High Court in Kantilal Amratlal and Ors. v. Snehlata Vipinchandra Mehta and Ors. 1979 Gurjarat Law Reporter 490, wherein it was observed as under:

The nature of the decree of specific performance is always to direct the vendor and/or subsequent purchases to execute the deed of conveyance to convey the title in the property in question to the vendee vide Durgaprasad v. Lola Deepchand : [1954]1SCR360 . If in pursuance of this decree a deed of conveyance is executed by the vendor, who may be a judgment-debtor, the transfer of property in pursuance of such a deed of conveyance is undoubtedly a transaction inter-parties, because ex-facie the document is effected between the vendor and the vendee, though, of course, in pursuance of the directions contained in the decree If, however, a judgment-debtor fails to comply with the directions contained in the decree to execute a deed of conveyance the only course open to a decree holder is to approach the Court and obtain an order of execution of the deed of conveyance under Order 21, Rule 34, of the Civil Procedure Code Order 21, Rule 34 of the Civil Procedure Cede prescribes the mode of execution of a decree for execution of a document or endorsement on a negotiable instrument.... On the plain reading of Sub-rule (5) of Rule 34 of Order 21, it is clear that though the document is executed by the Court it is for the party and though in fact it is not executed by the party, it is, as if executed by use party. A legal fiction is, therefore, created that even though it fact the document is not executed by the party, the same is to be treated as if the same is executed by the party. In my opinion whenever, therefore, a Court is called upon to execute the decree for execution of a document on the refusal or neglect of judgment-debtor to execute the same as directed in the decree, the execution of the same by the Court is virtually tantamount to execution by the party in view of the legal fiction contained in Sub-rule (5) of Rule 34.

16 Thus, it is well established that even when a sale-deed is executed by a court in pursuance of a decree for specific performance, for all intents and purposes, it is a transfer inter parties. The decree for specific performance merely declares the right of the decree-holder to have a transfer deed in respect of the property covered by the decree executed in his favour. The decree does not by itself transfer the with in the property, but in order to get title to the property transferred, the decree-holder has to proceed m execution, in accordance with the provisions of Order 21, Rules 32 and 34 of the Civil Procedure Code The very fact that the court executes the sale-deed on behalf of the judgment-debtor, goes in show that the sale is in substance made by the judgment-debtor and only the document in respect thereof is executed by the court on behalf of the judgment-debtor on his failure to do so. As provided in Order 21, Rule 34 CPC itself, such a sale-deed executed by the court in pursuance of a decree for specific performance has the same effect as the execution of document of sale by the judgment-debtor. Thus, it is clear from the law laid down in the aforesaid cases that even in a case where the seller refrains from executing the sale-deed in pursuance of a decree for specific performance of an agreement and a sale-deed has to be executed by the court on behalf of the seller, then such a transaction would amount tot sale and as pointed out by their Lordships of the Privy Council in Dinendranath Sannyal's case 8 Ind. App. 65 such a sale would be analogous to a private sale, though carried out with the intervention of the court. The court is merely an instrument for giving effect to a decree for specific performance and a sale-deed executed by the court in such circumstances cannot be held to be a sale in execution of the decree for the purposes of Section 5 of the Act. No doubt Clause (e) of Section 5(1) of the Act provides that the right of pre-emption does not accrue in respect of a sale in execution of a decree' of a civil or revenue court, but as pointed out by their Lordships of the Privy Council, no sale has taken place in the present case, in execution of a decree of a civil court. There was no public auction nor any bids were invited but only an agreement to sell entered into between the parties was given effect to by the court, in pursuance of the decree for specific performance. Such a sale cannot be held to be a sale in execution of a decree of a Civil Court and, therefore, if the plaintiff appellant would have been able to prove that the right of pre-emption accrued to him under Section 6, then the suit for pre-emption could have been decreed.

17. It was also argued that pre-emption is a weak right and the same can be defeated by all legitimate means. That may be so, and the party having the right of pre-emption may, by its conduct, loose the right of pre-emption. In the suit filed for specific performance by the vendees, the plaintiff was not made & party nor the question of plaintiff's right of preemption was agitated or decided in that suit. In such circumstances, the plaintiff could not have been precluded by any principle of constructive estoppels from enforcing a right of pre-emption, if he would have been able to establish any such right.

18. In Kali Charan Singh and Anr. v. Janak Deo Singh and Ors. AIR 1932 Allahabad 694 a suit for specific performance of an earlier contract was brought and the right of a pre-emptor for preferential claim of purchase was preserved for separate suit. After the sale-deed was executed by the court in pursuance of the decree for specific performance on behalf of the judgment-debtor, the pre-emptor brought a separate suit for pre-emption. In that suit, it was held by Sulaiman, C.J. that a transfer effected by a sale-deed executed in pursuance of a decree for specific performance was a sale and further that the right of preemption could not be defeated by the principle of constructive estoppel.

19. A division bench of this Court in Kanhaiyalal v. Gourilal 1956 RLW 390 also took the same view that the right of pre-emption was not lost, merely because a transfer was made by execution of a sale-deed in pursuance of a decree for specific performance passed on the basis of a private contract for sale. If the view is taken that such a sale made in pursuance of the decree for specific performance is a involuntary sale and if the right of pre-emption may be lost on account of the alleged involuntary nature of such sale, then it would become very easy in each and every case of a proposed sale to defeat the rights of all possible pre-emptors. The parties may enter into an agreement to sell the immovable property concerned and the vendee may file a suit for specific performance and the vendor may obtain a collusive decree without contest or after a sham contest. The judgment-debtor may refuse to execute a sale-deed even after the decree for specific performance is passed, because it is the duty of the court under Order 21 Rule 34 CPC to execute the sale-deed if the judgment-debtor refuses to execute the same in pursuance of the decree for specific performance and thereby the right of a pre-emptor may be unlawfully defeated by collusion among the contracting parties. If the mere execution of a sale-deed by the court on behalf of the judgment-debtor would be enough to render the sale as an involuntary sale and if the same could defeat the right of pre-emption then in all possible cases the right of pre-emption can very easily be defeated by adopting the aforesaid procedure with the collusion of the vendor and the vendee. Thus, although it is neither illegal nor fraudulent for the parties to transfer to avoid and defeat a claim for pre-emption by adopting all lawful and legitimate means & the courts have not looked with disfavor all the attempts made by the vendor and the vendee to avoid the accrual of a right of preemption by any lawful means, because the right pre-emption has always been considered as a weak right; yet it cannot be defeated merely because a sale-deed had to be executed by the court on behalf of the judgment-debtor, in pursuance of a decree for specific performance.

20. However, in the present case, I have already held above that the plaintiff has not been able to establish that a right of pre-emption in accordance with the provisions of Section 6 of the Rajasthan Preemption Act had accrued to him, the suit has tightly been dismissed.

21. It the result, the appeal has no force and the same is dismissed. The parties are left to bear their own costs of this appeal.


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