C.K. Gangadharan v. Kumaran and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **THURSDAY, THE 10TH DAY OF OCTOBER 2019 / 18TH ASWINA, 1941** ## **RSA.No.218 OF 2010 (A)** **AGAINST THE DECREE & JUDGMENT DATED 13-11-2009 IN AS No.78/2000 OF SUB COURT, OTTAPALAM AGAINST THE DECREE & JUDGMENT DATED 28-02-2000 IN OS No.46/1998 OF MUNSIFF COURT, OTTAPALAM** **APPELLANT IN R.S.A./RESPONDENT No.1 IN A.S./PLAINTIFF IN SUIT:** **C.K.GANGADHARAN, S/o CHURAMATH CHUNDAKATTU KUTTA GUPTHAN, KADAMPAZHIPURAM AMSOM AND DESOM, OTTAPALAM TALUK.** **BY ADVS.SRI.P.B.KRISHNAN** **SRI.N.AJITH SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN SRI.R.SURAJ KUMAR** **RESPONDENTS IN R.S.A/APPELLANT & RESPONDENTS 2 AND 3 IN A.S./DEFENDANTS 2, 1 & 3 IN SUIT:** - **1 KUMARAN, S/o CHOLAPARAMBIL APPUKUTTAN, KADAMPAZHIPURAM AMSOM AND DESOM, OTTAPALAM TALUK.** - **2 C.K.PRABHAKARAN, S/o CHURAMATH CHUNDAKKATTU KUTTA GUPTHAN, KADAMPAZHIPURAM AMSOM AND DESOM, OTTAPALAM TALUK.** - **3 BALAGUPTHAN (DIED, LEGAL HEIRS IMPLEADED) S/o AMBALATH APPUKUTTA GUPTHAN,'ASWATHY', KADAMPAZHIPURAM AMSOM AND DESOM, OTTAPALAM TALUK.** ## **ADDITIONAL RESPONDENTS** - **4 THANKAM BALAGUPTHAN, W/o BALAGUPTHAN, AGED 81, RESIDING AT 'ANJALI', NO.5, MICO LAYOUT, 1ST MAIN, 1ST CROSS, BANNERGHATTA ROAD, BANGALORE-560 076.** - **5 Dr.SMITHA RAJAN, D/o BALAGUPTHAN, AGED 52, RESIDING AT 'ANJALI', No.5, MICO LAYOUT, 1ST MAIN, 1ST CROSS, BANNERGHATTA ROAD, BANGALORE-560 076.** R.S.A.No.218 of 2010 2 **6** **SUJIT GUPTAN, S/o BALAGUPTHAN, AGED 50, RESIDING AT 'ANJALI', NO.5, MICO LAYOUT, 1ST MAIN, 1ST CROSS, BANNERGHATTA ROAD, BANGALORE-560 076.** **(LEGAL REPRESENTATIVES OF DECEASED 3RD RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 4 TO 6 AS PER THE ORDER DATED 10.12.2018 IN IA.3320/2017).** **BY ADV. SRI.V.C.MADHAVANKUTTY BY ADV. SRI.J.R.PREM NAVAZ R1 BY ADV. SRI.K.RAMAKUMAR (SR) R1 BY ADV. SRI.T.RAMPRASAD UNNI R2 BY ADV. SRI.SANTHEEP ANKARATH** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10.10.2019. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.S.A.No.218 of 2010 3 ## **CR** ## **JUDGMENT** What actually amounts to a 'right of pre-emption', what are the ingredients which would constitute 'a right of pre-emption', whether an unregistered agreement would constitute a pre-emption right over an immovable property and whether a pre-emption right can be enforced by way of a simple suit for mandatory injunction, are the questions came up for consideration in this appeal. 2. A suit for mandatory injunction for enforcing pre-emption right based on an unregistered agreement, Ext.A1, decreed by the trial court, but in appeal, it was reversed and the suit was dismissed, against which the plaintiff came up with this appeal. 3. Admittedly, the property originally belonged to the mother of first defendant having an extent of 80 3/4 cents. She sold the said property for a sale consideration of Rs.1,25,000/- to her son, the first defendant. It is thereafter the first defendant along with his mother executed Ext.A1 unregistered agreement 4 R.S.A.No.218 of 2010 in favour of her other son, the plaintiff herein, reserving pre-emption right over the property, but subsequently the first defendant sold a portion of the property, the plaint schedule having an extent of 10 cents, to the second defendant. Thereon, the plaintiff issued a lawyer notice and filed this suit for mandatory injunction directing the defendants 1 and 2 to execute and register a sale deed for the sale consideration of Rs.30,000/-. 4. A right of pre-emption was really unknown to Hindu law. Its origination is from the Mohammedan Law and applied to both Hindus and Muslims based on equity and good conscience. But it was not regulated by statutory law except in Punjab and Agra. In so far as Muslims are concerned, right of pre-emption forms part of their personal law, but among Hindus, the right of pre-emption mainly recognized as a customary right. No doubt, the right of pre-emption can also be created by a contract. 5. Pre-emption is a right of claiming or purchasing property before or in preference to others when it was put for sale. The basic concept of R.S.A.No.218 of 2010 5 pre-emption right is to preserve and give protection to the property of family from being intruded by strangers claiming under any member based on any transfer of immovable property. Inorder to constitute a pre-emption right, it should be satisfied that the pre-emptor should have some relation with respect to the property as a member of family, to which the property belonged and it must find a place in the document under which the property was given to the owner. In other words, the pre-emption right claimed should find a place in the document of conveyance either by gift, partition, settlement or sale and it may be either based on customary right or practice prevailed. A right of preemption can also be created by contract between the parties. In the former case, when it was incorporated either as custom or practice prevailed, there need not be any specific consideration for the pre-emption right created. But in the later case, when the pre-emption right was created by a separate agreement, it would take the character of contractual obligation, for which, necessarily, there should be lawful consideration. The pre-emption right being a partial R.S.A.No.218 of 2010 6 restraint over the right of owner restricting its transfer and alienation, though not creates any immediate right, title or interest over the property, when the property either put for sale or put in sale, it would operate entitling the pre-emptor to get the property in his favour. Necessarily, the restraint should be understood with the entitlement of the pre- emptor to get the property transferred in his name and it will have the value of the property as in the case of a sale. The value should be computed in relation to the value of alienation as it is a restraint on alienation. There need not be any lawful consideration for creating a pre-emption right, if it is based on any custom or practice, provided that it should find a place in the document of title of the owner, but that does not mean that the pre-emption right created is valueless. A restraint on transfer and right of transfer are the two sides of the same coin and will have the same value and it can be created only by way of a registered document, if the value is Rs.100/- or more and clause (b) of Section 17 (1) of the Registration Act, 1908 would come into play, which is R.S.A.No.218 of 2010 7 ## extracted below for reference: “17. **Docuemnts of which registration is compulsory** (1) ---------- (a)---------- (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property” 6. The Constitution Bench of the Apex Court in ## **Atam Prakash v. State of Haryana and Ors. ( AIR 1986** **SC 859 = (1986) 2 SCC 249)** had the occasion to consider the expression 'pre-emption right' while testing the constitutional validity of Section 15 of Punjab Pre-Emption Act, 1913. It is relevant to quote the observations made by the Constitution Bench of the Apex Court in the opening paragraph No.2 thus: “2. The right of pre-emption based on consanguinity has been variously described by learned judges as 'feudal', 'piratical', 'tribal'. weak', easily defeated', etc .( Kalwa v. Vasakha Singh AIR 1983 P & H 480 and Bishan Singh v. Khazan Singh MANU/SC/0119/1958 : ( 1059) 1 SCR 878. Fusing as it does the ties R.S.A.No.218 of 2010 8 of blood and soil, it cannot be doubted that the right is antiquated and feudal in origin and in character. The right is very much like another right of feudal origin and character which subsisted here and there in India until recently, particularly amongst the princely families, namely, the right of succession by primogeniture. It is a well-known characteristic of feudalism that the control of the most important productive resource, land, should continue in the hands of the same social and family group. The right of pre-emption based on consanguinity is a consequence flowing out of this characteristic. It is entirely inconsistent with our constitutional scheme. Since the Forty-Second Amendment, India is a socialist republic in which feudalism can obviously have no place and must go. ..................... ..................... The question has to be examined with reference to Arts. 14, 15 and 19(1)(d) and (g), in the background of the Preamble to the Constitution and Art. 39(c) of the Directive Principles of State Policy. We think that the question has to be primarily answered with reference to Art.14.” 7. Earlier, another Constitution Bench of the Apex Court in **Sant Ram and Ors. v. Labh Singh and another** **( AIR 1965 SC 314 )** considered the constitutional R.S.A.No.218 of 2010 9 validity of pre-emption right based on vicinage following the proposition laid down in **Bhanu Ram v.Baijnath Singh (AIR 1962 SC 1476)** and declared that the same is unconstitutional. 8. In the instant case, the suit is one for simple mandatory injunction. Under what circumstance a mandatory injunction can be granted was elaborately considered by this court in **Madhu Gupta v. K.T.Hassan Koya ( 2019 (5) KHC 42)** and laid down the principle governing grant of decree of mandatory injunction. Inorder to enforce pre-emption right being an obligation attached to a contingent interest arising out of a contract/custom, there should be a suit for enforcement of contractual obligation or the customary right reduced into contractual obligation. A mere suit for mandatory injunction cannot be maintained for enforcing a pre-emption right. 9. An action under Section 40 of the Transfer of Property Act cannot be maintained against a transferee for consideration without notice of existing pre-emption right. Further, Ext.A1 being an unregistered agreement and not supported by R.S.A.No.218 of 2010 10 consideration would only be a void agreement by virtue of Section 25 of the Contract Act and hence the same cannot be enforced. The suit itself is illconceived and mischievous. No other substantial question of law brought to the notice of this court. The appeal fails, dismissed, but without costs. The appeal is dismissed. No costs. ## **Sd/-** **P.SOMARAJAN** SV **JUDGE**