TMI Blog1996 (5) TMI 445X X X X Extracts X X X X X X X X Extracts X X X X ..... araja Chetty, the contesting respondent herein, were brothers, being the sons of Shri Batchu Ramaiah Chetty. The father and sons effected a partition of their joint family properties, under registered Partition Deed dated June 23, 1928 (Ex. P.3), as detailed in Schedule A attached thereto. There under the father was given properties described fully in Schedule B to the indenture valued at Rs. 20,000. The foster father of the appellant got properties described fully in Schedule C to the indenture and valued at Rs. 12,500. The contesting respondent got the properties described fully in Schedule D to the indenture also valued at Rs. 12,500. Clause 12 thereof provided a stipulation of pre-emption, which being the bone of contention, reads as fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s right to enforce his claim for pre-emption, on payment of Rs. 3,100, the price fixed therein, had ripened. The appellant put. forth the two wills to assert her title as legatee. She also claimed on a variety of grounds that neither the plaintiff-respondent had any right of pre-emption against her nor was such claim tenable in law. 5. Having regard to the multiplicity of pleas raised by both sides, the trial court framed as many as 11 issues but the relevant ones for the present purpose are the following two issues: No. 3 Whether the plaintiff proves his right of pre-emption in respect of disposition of properties by bequest as well? No. 4 Whether defendants prove that the alleged pre-emption is unenforceable against her for reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inion attracted Sub-section (2) of Section 98 of the CPC and therefore the judgment and decree of Trial Court got confirmed. The price rise too got affirmed on agreement. In sum the plaintiff-respondent got maintained the decree on payment of Rs. 36,000 as price of the property. Being aggrieved the appellant is before us. 8. We do not propose to enlarge the canvass to enter into elaborate discussion and analysis as undertaken by members of the High Court Bench in their respective opinion on Issues Nos. 3 and 4 relating to the concept of pre-emption, its historical perspective, related precedents and its validity as of today and other ramifications. All the same a classic judgment of Mahmood, J. in Govida Dayal v. Inayatulla ILR 7 All 775 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st of the properties allotted to the two brothers but their separateness is complete and evidenced, the way these properties are apportioned and earmarked in Scheduled C and D. By allocating specific properties to the two brothers, each of them had become exclusive owner of those allotted. Clause 10 of the Deed and the Schedules A, C D are reproduced hereafter: 10. The parties two and three have been allotted portions in premises 137 and 138 Jeweller Street as per their respective schedules and the plan annexed to this indenture. The portions allotted to party No. 2 are marker yellow and the party No. 3 red. The cost of construction of wall or walls for partitioning the said portions, shall be borne by the parties two and three in equa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst floor and the space directly below it has gone to the share of the plaintiffs brother. All these matters are such that it is not possible to lead a convenient and peaceful life if a stranger is inducted to the property. It appears in view of these circumstances clause of pre-emption was inserted in the partition deed to safeguard the peace, convenience and amity of the family and the insertion of such a clause in the partition deed is not in violation of the provisions of the Transfer of Property Act. In view of what has been discussed above it must be held that the plaintiff has got a right of pre-emption in respect of the suit property even though it is bequeathed by the late Balchu Muniyappa Chetty on his widow and his widow in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h could by no means be termed as a 'stranger' for the purpose of Clause 12 of the Partition Deed. Thus if the bequest in her favour was not made to a total stranger, one need not enter the thicket to find whether the appellant was legally a stranger to the family, when factually she was not, and in that manner not unconnected with the family. 16. Next we come to the question whether the disposition conceived of in the Partition Deed should be a sale attracting pre-emption or could it also be a disposition other than sale. The word 'pre-emption' as is well understood is a term of law. It is a right of substitution conferred on someone either by statute, custom or contract. The right is to step into the shoes of the vendee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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