TaxTMI 
TaxTMI 
1996 (5) TMI 445
X X X X Extracts X X X X
X X X X Extracts X X X X
....00. 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 follows: The second (the foster father of the appellant) and third (the contesting respondent herein) are allotted the immovable properties Nos. 137, 138 and 139, Jeweller's Street and No. 25, Veera Pillay Street as described in the Schedules hereunder. Though the party to whom it is allotted is entitled to dispose it of, he shall not do it to any stranger without giving the parties to this indenture an opportunity to buy it by pre-emption at the valuation given in the schedule to this indenture. 3. The foster father of the appellant died somewhere in the year 1948 leaving his property by means of a Will dated 1.12.1948 to his Widow Smt. Lakshmidevamma, who also died in the year 1956 However, before her death, in 1951, she, as foster mother of the appellant executed a Will in favour of the latter bequeathing to her propertie....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nts. K. Bhimiah, J. opined for the dismissal of the appeal affirming the judgment and decree of the trial court on all issues except to vary the price payable to be Rs. 36,000 as determined by the trial court for purposes of jurisdiction and court fee. He thus ordered maintenance of the trial court's judgment and decree on payment of Rs. 36,000 as price. K.S. Puttaswamy, J. however in his opinion took the view that findings on Issues Nos. 3 and 4 be reversed and hence the appeal allowed. This divergence of opinion 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....joint family properties: 12. Schedule C showing properties which came to the foster father of the appellant: 13. Schedule D showing the properties which came to the contesting respondent: 14. Walls were intended to be raised to demarcate and separate the portions relating to two properties as the other two were individually allotted to the respective parties. This fall out of the partition has unfortunately not been taken account either by the Trial Court or the Bench of the High Court. The following finding recorded by the Trial Court therefore does not match happily with the pattern of partition: The entire building consisting of the portion allotted to the share of the plaintiff and to the share of his brother Batchu Muniyappa Chetty forms one house. If a stranger is inducted in any portion of the house, the members residing in the other portion will feel it inconvenient to lead a peaceful life. Every house requires privacy from strangers. Apart from this there are common passage and entrances. In fact, storm water from the roof of one of the parties falls into the portion of the other party. A window belonging to the plaintiff opens into the space belonging to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s, because of her long association with her foster-parents. Her status as such 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 preferentially, on the terms of sale already settled between the vendor and the vendee. The courts below were put across the irrefutable argument that the tenor of the Deed suggested that it was written by a professional, knowing fully well the attributes of pre-emption. The Deed itself says that the parties have to be given an opportunity to buy the property meant for d....