HARISHCHANDRA BHAGDIKAR Vs. SANJAY BHAGDIKAR AND OTHERS

JUDGEMENT

(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. 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 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.

(2.) 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. P-C1 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, 1996 AIR(SC) 2146Shivji Vs. Raghunath (Dead) & Others, 1997 10 SCC 309.

(3.) 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 plaintiffs 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, Dattatraya 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 any one 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.