Tilak Raj Bakshi vs Avinash Chand Sharma(Dead) Through ...

2. The suit scheduled property located in Chandigarh was owned by one Kirpa Ram Bakshi. He had executed a registered will on 04.09.1974 in favour of the plaintiff, the first defendant and another son who was the 3rd defendant in the suit. Thereafter, the disputed house was transferred in favour of the aforesaid three persons by the Estate Officer. The plaintiff filed the present suit from which the appeal arises alleging that on 31.03.1982 there was an agreement entered into between the three brothers namely himself, the first defendant and the younger brother. Clause (5) of the agreement provides as follows:

3. It was alleged that the said clause was violated by his brother, the first defendant and without getting his written concurrence for the same the first defendant sold the suit scheduled property to the second defendant. It was alleged that this will result in fragmenting the site which is prohibited and it was also alleged that the sale was void. The suit came to be filed for declaring the sale deed in favour of the second defendant void and for specific performance directing first defendant to execute sale deed in respect of one-third share to the plaintiff.

5. The trial Court found that the family arrangement was indeed executed. It is a genuine document and not forged or fabricated. The suit filed on 03.02.1998 challenging the sale deed dated 12.11.1997 was filed within time. The second defendant was found not to be a bonafide purchaser. He was aware of giving preference by the first defendant to the appellant. It was further found that the plaintiff was never offered to purchase the share of the first defendant. The trial court found that the plaintiff was entitled to specific relief and declared the sale null and void. The plaintiff was entitled to specific performance as per the terms and conditions of the agreement dated 31.03.1982 to purchase the share of the first defendant.

6. The second defendant appealed against the judgment. The first Appellate Court found that the family arrangement was genuine. It referred to the correspondence between the plaintiff and the wife of the first defendant. He proceeded to find that the only controversy was whether the first defendant has offered to the plaintiff to purchase his one-third share or whether the plaintiff never came 4 forward for the same. The first Appellate Court found that no document was produced to show that the first defendant himself offered. The court further goes on to find letters by the wife of the first defendant which reveals that offer was given to the plaintiff to purchase. As per clause (5) of the family arrangement, the concurrence of the plaintiff was not taken in writing before selling to the second defendant. As far as the offer is concerned the Appellate Court referred to the correspondence. Defendant no.1 was not ready to accept earnest money. The house was located at Chandigarh. The sale could be effected only at Chandigarh. Plaintiff visiting Bhilai, where first defendant lived, would not have been served any purpose. Reference is made to the telephone bills of the plaintiff to prove communication between him and the first defendant regarding sale. The sale in favour of the second defendant was effected through power of attorney. No offer was made for selling to the plaintiff by the first defendant through a power of attorney. It is found that though P19 shows that a deal was struck but because the wife of the first defendant 5 was pressing hard for the plaintiff to come to Bhilai, it did not work. The plaintiff was found ready and willing. The first defendant has violated the family settlement. The second defendant was aware from the wife of the first defendant that she wanted to sell to the plaintiff. The second defendant was a tenant who was aware of the family arrangement. There was no notice issued to the other sharers. The appeal of the second defendant was dismissed. That apart the Appellate Court also allowed the cross appeal filed by the plaintiff and directed the second defendant to hand over possession to the plaintiff. PROCEEDINGS BEFORE THE HIGH COURT

5 After giving the earnest money, we would issue notice for vacating the house or adopt any other method (not readable)…….We will see.

Please inform convenient trains from Delhi and for return journey try to make II sleeper reserve up to Delhi/Ambala. Hope brother’s health is improving and all children are happy at their places and so are grand children. Please reply soon or phone or fax at my office No.0172-703603 “Attn: Tilak Raj Bakshi” With regards, your affectionately-Tilak Raj Bakshi.”

IMPACT OF ABSENCE OF WRITTEN CONCURRENCE BY BROTHERS FOR SALE

EFFECT OF PROHIBITION AGAINST FRAGMENTATION OF PROPERTY IN QUESTION UNDER THE CAPITAL OF PUNJAB (DEVELOPMENT AND REGULATION) ACT, 1952

63. While it may not be true that the issue of fragmentation was not raised in the courts, we would think that the appellant is not able to persuade us to hold that the assignment in favour of the second defendant is vulnerable on the basis that it involves fragmentation. We have noticed the deposition of the plaintiff about partition of the house into three portions. We have noted the fact that one-third share has been duly transferred and mutated in the name of the first respondent/second defendant by the Chandigarh Administration.

65. In the light of the aforesaid facts, we cannot permit the appellant to impugn the transaction on the said ground. 61

66. The upshot of the above discussion is that the contentions of the appellant are liable to be rejected. We do so. The appeals will stand dismissed. The parties will bear their own costs.

AUGUST 20, 2019.