NDLI: Tilak Raj Bakshi Vs. Avinash Chand Sharma (dead) Through Lrs. & Others

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Difference between ‘site’ and building’ Suit Right of pre-emption When not applicable
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Capital of Punjab (development and Regulation) Act, 1952 (27 of 1952)
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Dismissed
Headnote	Suit – Right of pre-emption – When not applicable – Father of the appellant-plaintiff executed will of the suit scheduled property in favour of his three sons, the plaintiff, first defendant and third defendant – Suit for specific performance filed alleging that the first defendant without getting plaintiff’s written concurrence, sold the suit property to the first respondent-second defendant, thus violating Clause (5) of the agreement entered between the three brothers – Trial court decreed the suit – Appellate Court dismissed the second defendant’s appeal – High Court dismissed the suit filed by the plaintiff – On appeal, held: Clause in question does not place absolute restriction on alienation in favour of a stranger – All that it contemplates is an offer being made to the brothers, once the first step of concurrence in writing by the brothers for the sale is obtained – Plaintiff not justified in invoking the principle underlying the right of pre-emption – First defendant indeed made offer to the appellant for selling his share for Rs. 5 lakhs – Plaintiff estopped from setting up the plea of absence of written consent of the brothers as he led the first defendant to assume, that even without written concurrence, the sale is permitted – First defendant acted on that basis, otherwise, he could have certainly obtained the concurrence – Having thus acted in the matter, and the second stage having been reached, when the fault cannot be attributed to the first defendant, the offer, which the plaintiff himself describes as reasonable, was not seized upon by him, the third stage emerged – It became open to the first defendant to sell to a stranger and he sold the property to the second defendant – Further, plaintiff not able to persuade the Court to hold that the assignment in favour of the second defendant is vulnerable on the basis that it involves fragmentation of the site, which according to the plaintiff was prohibited under 1952 Act – Transaction cannot be impugned on the said ground also – Indian Contract Act, 1872 – s.29 – Capital of Punjab (Development and Regulation) Act, 1952 – Specific Relief Act, 1963 – s.20. Capital of Punjab (Development and Regulation) Act, 1952 – ss.2(f), (k), 3-5, 22 – Difference between ‘site’ and building’ – Discussed – Chandigarh (Sale of Sites and Building) Rules, 1960 – r.14 – Chandigarh Estate Rules, 2007 – r.16 – Partition Act, 1893 – ss.2-4. Practice and Procedure – Plea not taken before the Appellate Court, if can be decided by it – Permissibility of – Held: Mere fact that the plea that the clause in question was vague, and hence, unenforceable and void was not taken, will not stand in the way of the Appellate Court looking into the contract and, if on its terms, it finds it to be vague and unenforceable, it can be so held – Indian Evidence Act, 1872 – s.93
Judge	Hon'ble Mr. Justice K.M. Joseph
Neutral Citation	2019 INSC 923
Petitioner	Tilak Raj Bakshi
Respondent	Avinash Chand Sharma (dead) Through Lrs. & Others
SCR	[2019] 10 S.C.R. 251
Judgement Date	2019-08-20
Case Number	1524

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