IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24%; DAY OF AUGUST 2009. j
BEFORE
THE HONBLE MR JUSTICE K N 3 A
R.s.A. No. 891 0:? 2009 A'
BETWEEN:
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[BY SR1. M
MR PRAVEEN KUMAR JOSH}-A, .
s/o LATE UMESH CHANDRAVJQSHI " E
AGED ABOUT 70 -A
R/AT TARA BAGH, ~ G0wRm{iL1T'1?_'sTRE,ET,
MANGALORE TQ. (D.r:)
A ~ APPELLANT
MR. SU1\1IL'J.OSI*{I " ._ _ .
s/0% LATE UiVI«ESHC.HAN.DRA JOSHI
AGED_ABoUT 5":
C/O. BALAKR;sH_NA~--'NAYAK
}'{'ADRANGI,.YEDAPADAVU,
~ _ v.':DP:Q»,YEDAPADA'v"J#574 267,
~. 1. lVLAN{;§AI;QRE TQ. (D.K)
D 'A-T'.:3R;1$iI':2A§i;;s;N U JOSHI
A V s/0 _LAT_E'UMESHCH_ANDRA JOSHI
"A,GE:D ABOUT 68 YEARS,
R/*'~AT;. B~43/ 172, SUNDERNAGAR,
A. VADVIDYANAGARI MARC},
KALINA, SEANTHCRUZ [EAST],
V' EVIUMBAI
W
3 MRHYDER ALLK
S/O 1\/1R.ABOOBAKKAR.K
PROP. M/ S. RESIDENCY BUILDERS
AND SHAMA RESIDENCY, VAS LANE.
MANGALORE675 O02, {D.K}
(BY SR1. PADMANABHA MAHALE, :1StI§.t::CO,U"IsISEL:,': '-- _
FOR C/R) '2. - -
RSA FILED II/S. 10U._."'QF CIPC I AGAIESIE.
JUDGEMENT & DEGREE DATEDjt'09.04".200':3' PASSED IN
R.A.NO.156/2008 ON THE FILE II--ADD'L. CIVIL
JUDGE, (SR. DN.) ALLOWING THE
APPEAL AND SETIING *ASID_Eg~. JUDGEMENT AND
DEOREE DATED: 18. 1 1.2003 PASSED. IN.I'V_*QS.NO.354/2008
ON THE FILE OF_'THE <:fIVIL'.JIJbGE (JR. DN.},&
JMFC,MANGAI;D13;Ef.' i A '
THIS FOR' ADMISSION THIS
DAY, THE ICQU_R"T'1D5ELIVERED-- FOLLOWING:
I V T; N *1'
The "1:I:1:aintiff in 08. 354/2008 on the
.--file Of-ttlfiiet' II" A(IditiQn_a1 Civil Judge [Sr.Dn.), Mangalore,
is bef0Iet"th._iS Court in this appeal questiening the
1egSlity'aDd'eiOIIfectneSS of the judgement and decree dated
09.04.2009 passed by the by the II Additional Civil Judge
Mangalore, D.K. in RA. No.156/2008, whereby
..__"V't'he'j%LOwer Appellate Court in reversal of the judgment and
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decree of the trial Court has dismissed the suit by setting
aside the judgement of the trial Court.
2] The appellant/ plaintiff filed ~..
the respondents/ defendants forI__
restraining defendant No.1.’ from tal’i’enati.n;g;
schedule property and further4i’to::1’estrain..Vde’fendants –1
to 3 from C16V€lOpiI1gV’A]3’IOfVle.i;f3,:_V:xiiii”£}lOut taking the
written consent from the.ep–1ain.tiff._”»__ it
3) mi fhes’j’.-pi’a;:ri;:ifi5_ in brief was that, the
suit selieduleiiivjyviiivlth other properties
o1iginail3i”belonged’:to~Vone:E3rn~t. Anandi Bai, who executed
a Willdated’-V1V_’1.03:.l985″°bequeathing all her properties
heirs. As”‘per the terms of the said Will, the
si_i__i’t VS(El1e:di_i1e évproperties were bequeathed in favour of the
I81 “l’he said Will further contains a condition
*ijv»-v’«._fCll.a’E the.,V__A’lSt defendant should not alienate the suit
properties bequeathed to him for a period of 10
1§.J.\:1+e.4;ea¥ 5 {*0 $.-
and thereafter, if he isxulhriguthe sell the same, he
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should give first option to the plaintiff and if it is only in
the event of plaintiff declining to purchase the property,
defendant No.1 could sell the property to others
Written consent of the plaintiff. The said
during May 1987. The plaintiff 3filed”the”–«suit
2008, alleging that the 1st defendantfihas entered
agreement with defendants to
into a multi residential. oifvthe flats
constructed thereon the terms of
the Will mthot;~t’g=§§5ing gfistipoptionjto’ as such, the 1st
defendantillllsliotildlfifije from alienating the
property zandalso the same.
it ‘The ‘d.e:fend,ants resisted the suit. They
AV’Vcontended’«th«at’the suit is not maintainable, as there was
no ’cause ofaetion, since no alienation has taken place.
A. .5) Z :The trial Court on assessment of the oral and
rdocumentary evidence decreed the suit and granted
p-e.r-nianent injunction restraining the 13% defendant
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permanently from alienating the schedule property in
violation of the terms of the Wi1I–Ex.P1 without the written
consent of the plaintiff. Further defendants — 1 to 3′;’were
permanently restrained from putting–up any poi;
building in the suit property without ,
complying with the pre–emptiori’ if
Ex.PI.
6} On appeal __by Lower
Appellate Court held that ithelsfilfit the plaintiff was
not maintainablein asfiiuch no cause of
action for the ,p1’a.:n_tif£ ltodfile’ the suit in View of the fact
that there was no” made. The Lower Appeliate
…V.Court«.§didi’~not the judgment of the trial Court,
A”:and”hVeid:_thatfthe clause Contained in the Will is Vague.
Thefefore; Appellate Court set aside the judgement of
g [the trial and dismissed the suit by allowing the
It is against the judgment of the Lower Appeliate
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Court, the unsuccessful plaintiff is before this Court in
this appeal.
7) I have heardkthe Ieamed counselappveaifing -i,
the appellant and also Sri. Padmanabhajv
Senior Counsel appearing for._the”responcieiittfiI _ha’Ve_°.
perused the judgement of the
8) The only question considered by
this Court is to file the suit
for permanent of the pre–~emptiVe
right Ci’eate’dx.: of the Will~Ex.P1.
Aciniittedly,’ «the VVVl”~”:t:ljV*defendant succeeded to the suit
schedule property’ of the Wil1–Ex.P1. It is not the
I-‘:’rca.se the plaintinfyfwthat the 15’ defendant has sold the
of the defendants — 2 8: 3. According to
the A ‘–defe_ndant; he entered into an agreement for
” “”–._deVeVIopinvg:the suit schedule property. The question as to
a pre–emptor has a right to seek equitable relief of
niginjunctien at the hands of the Court has been considered
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by the Apex Court in several decisions. In Kumar
gonsusab 82. others vs. Mohammad Miyan Urf Baban
82. others [ (2008) 10 SCC 153] , it has been clearly held
that unless title to the suit property has
accordance with the provisions of the T.P. Act.,–
enforce pre–emption arises. As; per’ A”
reported decision, there was an agreeéinentldtbetvgfeenfthree
appellants for sale of the”fVpi’=operty-. Thef’d.:re’spend;ents”at
therein in exercise of the of ‘pre–e.rnpti.on,,:§filed the
suit. The Apex Court ulltifnatelfhield’ suit for pre-
emptionv’tVbrVoueghtv ‘Vthe”»b’asis tofflsuch an agreement was
without any ac’ti_o’n,V~’as there was no right of pre-
emption, in the respondents, which could be enforced
= law. As observed by the Apex Court in the said
decis;ion,.tltterefare no equities in favour of the pre-emptor.
TheAA.pex_fCoi1rt has further observed that “it would be
“pre–emptee to defeat the law of the pre~»eInption
aby*V_Vanj;’legitimate means, which is not fraud on the part of
A ‘either the vendor or the vendee and a person is entitled to
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steer clear of the law of preemption by all lawful means”.
It is further observed that “the right of prewemption is a
Weak right and is not looked upon with favour by Courts
and therefore, the Courts cannot go out of their”‘v}ay”‘to
help the pre–ernptor”. In the case on hand a1so:”th,ere.i:’is
transfer of property in accordance”‘w–ith of
Property Act. The 1st defendant A’exectf.te’d.
deed in favour of DefendantVs’~§r2p and the’
plaintiff cannot enforce’ at ysithisfvfistage th’e”‘pr*é§emptive
right, if any. In other wait till the
transfer: piaciew accordance with the
provisions. of .i?*roperty Act.
.. it “In the” the law laid down by the Hon’b1e
in the aforesaid decision, I do not find any
illegality committed by the Lower Appeilate
‘ ‘Courtin idisrriissing the suit as the plaintiff had no cause
élétion to fiie the suit. In this View of the matte
appeal lacks merit. The appeal does not invo1V_e__ any
question of law muchless substantial question of
Accordingly, the appea} is dismissed._. ‘ «
/7’)
KGrR*