JUDGMENT
Deepak Verma, J.
1. Feeling aggrieved by the judgment and decree passed by First Additional District Judge, Sagar, in Civil Suit No. 10-A/2000, decided on 2540-2002, this appeal under Section 96 of the Civil Procedure Code, has been preferred by the unsuccessful plaintiff.
2. Facts, giving rise to the filing of the said appeal, in a nutshell are mentioned hereinbelow:
Plaintiff Ravindra is closely related to defendant No. 1 Ganpati, defendant No. 2 Vinod and defendant No. 3 Santosh, as they all belong to the same family. The genealogical tree, even though not required to be given, but for better appreciation, is mentioned hereinbelow:
Malhar Rao was the original owner and common ancestor of the property. He had 4 sons; Vishnu was the eldest, next was Narayan, then Sadashiv and then the youngest being Dattatray. Narayan, the second son, had died issueless and it appears that he was not even married. Vishnu had one son, i.e., defendant No. 1 Ganpati and Ganpati had one son by the name of Vinod, i.e., defendant No. 2. Sadashiv had died on 27-12-90, leaving behind his son Ravindra, i.e., the present plaintiff. The youngest of the 4 sons of Malhar Rao, Datlatray had died on 7-4-2000 leaving behind defendant No. 3 Santosh.
Malhar Rao had property situated in Laxmipura Ward, Sagar, which was popularly known as Khanwalkar Bade. On 5-2-92 an oral partition had taken place between Ravindra, Ganpati and Dattatray. As per this partition southern portion of the Khanwalkar Bade fell to the exclusive share of plaintiff Ravindra, central portion thereof fell to the exclusive share of Ganpati and Vishnu (defendant Nos. 1 and 2) and remaining northern portion fell to the share of Santosh (defendant No. 3). The said oral partition was then reduced to writing on 20-2-92 and has been marked as Exhibit P-l.
An agreement was further entered into between the aforesaid parties on the same date marked as Exhibit P-2. It appears that toilet, electric and water connections were situated in three different portions, thus it was agreed upon that within a period of one year from the said date all the three co-sharers would make their respective arrangements. It was further agreed that in case any of the co-sharer decides to alienate or dispose of his share, then it shall be his bounded duty to first offer it to the other co-sharer and only on his refusal to purchase the property, he would be at liberty to sell it to someone else.
It is borne out from the record that defendant Nos. 1 to 3 sold their respective shares of the property to defendant Nos. 4 and 5 vide two sale deeds executed in their favour on 16-3-2000 marked as Exhibits D-l and D-2. This gave rise to the plaintiff to bring an action against the defendants claiming the following reliefs, i.e., specific performance of contract, possession of the property sold in favour of defendant Nos. 4 and 5 and for permanent injunction.
3. Plaintiff based his claim primarily on the condition envisaged in Exhibit P-2 whereby it was agreed upon, as and when any of the co-sharer decides to dispose of or alienates his share, then the same would be first offered to the other co-sharer and only on his refusal to do so, it would be permissible to him to sell it to someone else. Plaintiff, accordingly, claimed right of pre-emption.
4. According to plaintiff, in the year 1997, he had reconstructed the portion which had fallen exclusively to his share as the whole house known as Khanwalkar Bade was in a highly dilapidated condition. Two Power of Attorneys were also executed on 2-2-2000. One was executed by Vishnu in favour of defendant No. 2 Vinod his grandson and another was executed by Dattatray in favour of his son defendant No. 3 Santosh. In these Power of Attorneys they were given right to execute sale deeds for and on their behalf. Thus, exercising the power conferred on them, they executed the sale deeds in favour of defendant Nos. 4 and 5 as mentioned hereinabove.
According to plaintiff, he was never offered to purchase the said property otherwise he would have purchased it as the said property sold to defendant Nos. 4 and 5, was most suitable to him, being just adjacent to his property. He was always ready and wiling to purchase the said property but defendant Nos. 1 to 3 have flagrantly violated the terms and conditions of the agreement dated 20-2-92 and illegally sold it to defendant Nos. 4 and 5. Hence, the suit.
5. Defendant Nos. 1, 2 and 3 as one set and defendant Nos. 4 and 5 as another set filed their respective written statements denying the plaint allegations. Defendant Nos. 1 to 3 admitted that earlier there was an oral partition between them which was reduced to writing on 20-2-92. They have also admitted that on the same date an agreement (Exhibit P-2) was also executed between the parties, but have denied specifically that they have violated the terms and conditions of the agreement. They have categorically mentioned that plaintiff was interested to purchase both the remaining shares for a paltry sum of Rs. 1.5 lacs, whereas even at that time the market price of the remaining two portion was not less than Rs. Three lacs. Since plaintiff was not ready and willing to purchase it at the then market value of Rs. Three lacs, defendants were not obliged to sell it to the plaintiff. They have, therefore, justified their action of executing the sale deed in favour of defendant Nos. 4 and 5.
6. Defendant Nos. 4 and 5 have also denied the plaint allegations. According to them, on coming to know that defendant Nos. 1 to 3 were interested to dispose of their share, they had approached the plaintiff who was then available at Sagar. Enquiries were made from him and they were informed that defendant Nos. 1 to 3 have shifted to Mumbai and can be contacted there.
According to them, their addresses and other details were furnished by the plaintiff to them. During the period when they had gone to see the house and happened to meet the plaintiff, he had further informed that defendants are desirous to sell it for a sum of Rs. Three lacs and he, though has a right., of pre-emption but, is not ready and willing to pay the aforesaid price.
Only thereafter defendant No. 4 went to Mumbai in the month of October, 1999. He entered into an agreement with defendant Nos. 1 to 3 for a sum of Rs. Four lacs for both the portions and paid an advance amount of Rs. 25,000/- to each of the co-sharer, balance to be paid at the time of execution of the sale deeds.
They have further averred that at the time of execution of the sale-deeds, the defendants had come from Mumbai and stayed with the plaintiff only. After execution of the sale deeds possession was handed over to defendant Nos. 4 and 5 and thereafter they have reconstructed their portion and have been living in the said house ever since then.
In nutshell all the defendants have also pleaded that plaintiff had failed to discharge the obligations rested on him under the agreement Exhibit P-2 and thus, no relief can be granted to him and the suit deserves to be dismissed. According to them, plaintiff had never offered reasonable market price of the property to defendant Nos. 1 to 3, thus, they were not obliged to sell it to him only. Only on his refusal, it was sold to defendant Nos. 4 and 5.
7. On the strength of the aforesaid pleadings of the parties, learned Trial Court framed issues. Parties went to trial. After appreciation of evidence available on record, learned Trial Court dismissed the suit of the plaintiff. Hence, this appeal.
8. We have, accordingly, heard learned Counsel Shri Alok Aradhe ably assisted by Shri Sidharth Gulati on behalf of the appellant, Shri Prabhat Asati and Shri N.K. Patel with Shri S.L. Patel for the respondents and perused the record.
9. After having heard learned Counsel for the parties and after going through the evidence, we are of the opinion that the appeal has no merit or substance and deserves to be dismissed, for the reasons assigned herein under:
(i) P.W. 1 Ravindra has admitted in his cross- examination in Para 19 that in the month of October, 1999 defendant No. 4, the purchaser Narayan Prasad had gone to Mumbai to meet Vinod. Vinod had then informed him on telephone that they have already entered into an agreement with defendant Nos. 4 and 5 for sale of the property to them and, therefore, no material lying in their portion should be removed by the plaintiff. He further admitted that this phone call was received by him at Birsinghpur where he was stationed then. He has further deposed that since he was interested to buy that property, thus, there was no question of removal of any material from those portions.
(ii) Critical examination of the aforesaid piece of evidence of the plaintiff would show that he had full and complete knowledge of the agreement entered into between defendant Nos. 1 to 3 on the one hand and defendant Nos. 4 and 5 on the other. If, on his own showing, he had the knowledge and notice of the agreement then as an ordinary prudent man he should have acted in promptitude, but he sat quiet over the matter and did not even think of sending any notice to the defendants reminding them of the pious obligation resting on them by virtue of the agreement, executed between them vide Exhibit P-2.
From the conduct, behaviour and attitude of the plaintiff it is clearly made out that he had already decided neither to purchase the property, as he was not ready and willing to pay the then existing market price to the defendants nor to take any action in this regard. It appears that he had offered a sum of Rs. 1.5 lacs for whole of the property whereas defendant Nos. 1 to 3 were not ready and willing to sell it for less than Rs. Three Lacs. Ultimately, it was sold for a sum of Rs. Four lacs. The fact that the property was ultimately sold, around the same period, for a sum of Rs. Four Lacs would go to show that the plaintiff had no bonafide intention to purchase the same otherwise he would not have offered such a meagre and paltry amount for the aforesaid property. The offer of the plaintiff was neither fair nor reasonable, which could have been accepted by the defendants, even though it has not been established that any such offer was made by the plaintiff.
(iii) On the other hand, from the evidence of defendants it has been well established that he was offered to purchase the said property but plaintiff was not ready and willing to pay the market price which was existing then. This is clearly established from the evidence of D.W. 1 Vinod. In his evidence he has deposed that plaintiff Ravindra had offered a sum of Rs. 1.5 lacs for both the portions and he had further said that in case offer of more than Rs. 1.5 lacs is received, then the defendants would be at liberty to execute the sale deed in anyone else’s favour and he would have no objection. Even though he was cross-examined at length but nothing could be elicited that Ravindra had offered any better amount than a sum of Rs. 1.5 lacs. He has further deposed that in the month of October, 1999 he happened to meet defendant No. 4 who had come to Mumbai for negotiation of the aforesaid property and thereafter intimation on phone was given to the plaintiff.
(iv) Similar is the evidence of D.W. 2 Smt. Sadhna, wife of Santosh. She has also deposed that plaintiff Ravindra had categorically informed her that he is not in a position to buy the portions of both the co-sharers for more than Rs. 1.5 lacs and in case anyone offers more than that price then they would be at liberty to sell the same to such person.
(v) D.W. 3 Anand has also deposed with regard to the aforesaid facts, but his evidence has rightly not believed as it appears to be hearsay.
(vi) D.W. 2 (for defendant Nos. 4 and 5) Narayan had deposed that he had approached the plaintiff in the month of September, 1999. At that time he had given him copy of the partition deed executed between them as also the map. He had also given him the Mumbai addresses of defendant Nos. 1 to 3. He also made enquiries as to why the plaintiff had not purchased the property to which plaintiff answered that defendants are expecting a sum of Rs. Three Lacs whereas he was ready and willing to pay to them only a sum of Rs. 1.5 lacs. On getting this information he had proceeded to Mumbai and met defendant Nos. 1 to 3 and entered into an agreement after paying Rs. 25,000/- to each one of them as an advance amount.
Thereafter, the sale deeds were executed in favour of defendant Nos. 4 and 5 by defendant Nos. 1 and 2, but prior thereto plaintiff had neither served any legal notice nor had raised any objection with regard to execution of the sale deeds by them in favour of defendant Nos. 4 and 5.
(vii) Defendant Nos. 4 and 5 had also examined Babulal, the contractor, who was engaged by defendant No. 4 for collection of waste material (Malma) and one Santosh who had accompanied defendant No. 4 to the house of Ravindra to inform him that the property had been purchased by him and, therefore, nothing should be removed therefrom.
8. In the light of the aforesaid evidence available on record it is clearly made out that plaintiff was never ready and willing to purchase the property belonging to defendant Nos. 1 to 3, at the then market price, and he had acquiesced his right to purchase the same. In view of the aforesaid, the learned Trial Court committed no error in denying the reliefs as claimed by the plaintiff and dismissing the suit.
9. The right of pre-emption is a weak right and it can be defeated by estoppel. It is too well settled that the right of pre-emption is lost by estoppel and acquiescence. Estoppel is a rule of equity flowing out of fairness striking on behaviour deficient in good faith. It operates as a check on spurious conduct by preventing the inducer from taking advantage and assailing forfeiture already accomplished. It is invoked and applied to aid the law in administration of justice.
10. From the conduct of the plaintiff and his own admission, it is well established that he had acquiesced his right in the property. Thus, he is estoppel from challenging the sale-deeds executed by defendant Nos. 1 to 3 in favour of defendant Nos. 4 and 5. It is also borne out from the evidence available on record that at no material time plaintiff was ready and willing to purchase the property at the then existing market rate, but offered a price which no man even with an ordinary prudence would have accepted. Thus, in other words there was no proper and fair offer made by plaintiff, which would have been acceptable to the owners. On coming to know of the intention of the plaintiff that he wanted to purchase the property for a sanga and was not ready and willing to pay even Rs. Three Lacs, they were perfectly justified and within their legal rights to execute the sale deeds thereof in favour of defendant Nos. 4 and 5 for a sum of Rs. Four Lacs.
11. It is also too well settled that an admission is a best piece of evidence. Plaintiff admitted that he was fully aware of the negotiations and finally execution of the sale deeds in favour of defendant Nos. 4 and 5 by defendant Nos. 1 to 3, still he did not think it proper to take any action. Thus, equity also does not swing in his favour. He did not inform defendant Nos. 1 to 3 with regard to rights and obligations resting on them by virtue of Agreement Exhibit P-2. Obviously, such a litigant does not deserve any sympathy. He was only trying to humiliate and harass the defendants.
12. In the light of the aforesaid discussion, we are of the opinion that there is no merit and substance in the appeal. It is, accordingly, hereby dismissed. Looking to the facts and features of the case we direct the parties to bear their own respective costs.