TMI Blog2007 (2) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... reason of a deed of sale dated 27.4.1982, Desh Raj transferred the suit land in favour of Jagat Ram (Respondent No. 1-Defendant No. 2) and Gurbaksh Kaur, wife of Jagat Ram (Respondent No. 2-Defendant No. 2). Jagat Ram and Gurbaksh Kaur, in turn, by a registered deed of sale dated 11.10.1982 transferred their right and interest therein in favour of the appellant. Respondent No. 8-Chander Bala is the daughter of Respondent No. 9-Desh Raj. Claiming a right of pre-emption in terms of the Act, she filed a suit for pre-emption impleading only the respondent Nos. 1 and 2 therein. A compromise was entered into by and between the parties in the said proceedings. A consent decree was passed on the basis thereof by the learned Subordinate Judge, stating: The case was taken up on 13.6.1983 on which date both the parties, conceded the rights of each other. The Defendant conceded that the plaintiff has a superior right of preemption. The Plaintiff admitted that the suit land was actually sold for ₹ 30,000/- by the vendor the Defendant. The counsel for the Plaintiff paid ₹ 24,000/-to the Defendant in the court and the remaining ₹ 6,000/- has already been deposited in the cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty or urban immovable property or to foreclose the right to redeem any village immovable property or urban immovable property, in respect of which any persons have a right of pre-emption, he may give notice to all such persons of the price at which he is willing to sell such land or property or of the amount due in respect of the mortgage, as the case may be. Such notice shall be given through any Court within the local limits of whose jurisdiction such land or property or any part thereof is situate, and shall be deemed sufficiently given if it be stuck up on the chaupal or other public place of the village, town or place in which the land or property is situate. Section 21 provides for suits for pre-emption. 7. The constitutionality of the provisions of the said Act came up for consideration before a Constitution Bench of this Court in Atam Prakash v. State of Haryana and Ors. [1986]1SCR399 , wherein Chinnappa Reddy, J. held: In the first case, (Bhau Ram case), the right of pre-emption given to co-sharers was held to be a reasonable restriction on the right to hold, acquire or dispose of property conferred by Article 19(1)(f) of the Constitution. What has been said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 'Thirdly' of Section 15(1)(c) and the whole of Section 15(2) are, therefore, declared ultra vires the Constitution. Respondent No. 8, thereafter, could not have claimed a right of preemption as a daughter of respondent No. 9. 9. The fact that Appellant has purchased the suit premises was known to her. Appellant was in possession of the land. The execution of a registered deed of sale shall also be treated as a notice in terms of Section 3 of the Transfer of Property Act, 1882, which is in the following terms: ... a person is said to have notice of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. Explanation I. - Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endant-Respondent No. 9 was considered to be a superior right of pre-emption. Defendant No. 9 out of the total consideration amount of ₹ 30,000/-, deposited only 1/5th thereof, i.e., ₹ 6,000/- in the Court. Respondent Nos. 1 and 2 neither said to have claimed the said amount nor the rest of the amount of ₹ 24,000/- could have been paid in their favour by Defendant No. 9. 13. If the Defendant Nos. 1 and 2 only could not have accepted the said amount as a valid consideration of passing of a decree of pre-emption in favour of the Respondent No. 9; the purported consent decree, in our opinion, was void ab initio. Moreover, in the aforementioned facts and circumstances of this case, the appellant was a necessary party therein. No decree, therefore, could have been passed in his absence. The parties to the said suit and, in particular, Defendant-Respondent Nos. 1 and 2, therefore, by suppression of material facts committed a fraud on the Court in obtaining the said decree. It may be true that collusion between Respondent No. 9 and Defendant Nos. 1 and 2 was required to be specifically pleaded, but in this case collusion between them is apparent on the face of the rec ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
