Madras High Court

C.Rabia Begum vs C.S.Khathijuthus Soghara on 9 May, 2025

                                                                                                  C.S.No.254 of 2014



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                            RESERVED ON                      : 17.12.2024

                                            PRONOUNCED ON :                        09.05.2025

                                                         CORAM:

                                  THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN

                                                 C.S No.254 of 2011

                    1.C.Rabia Begum
                    2.C.Abdul Aleem                                                         .. Plaintiffs

                                                             ..Vs..
                    1.C.S.Khathijuthus Soghara
                    2.C.S.Ayesha Siddiquea
                    3.C.S.Mohamed Usman
                    4.C.S.Mohamed Hasan
                    5.C.S.Mohamed Hussain
                    6.C.S.Mohamed Ibrahim
                    7.C.S.Umai Zainab
                    8.C.S.Umai Maimuna
                    9.C.S.Umai Salma
                    10.C.S.Katheeja Begum (deceased)
                    11.C.Ayesha Begum
                    12.C.Bheemraj Mutha Jain
                    13.C.Abdul Wahid
                    14.C.Zareena Begum
                    15.C.Fathima Begum
                    16.C.Abdul Basith
                    (Defendants 13 to 16 were impleaded
                    as legal heirs of the deceased
                    10th defendant as per the order of this
                    Court dated 10.11.2022 made in
                    A.No.2949 of 2022)                                                 .. Defendants

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                                                                                               C.S.No.254 of 2014



                    Prayer: Civil Suit has been filed under Order IV Rule 1 of Original Side
                    Rules read with Order VII Rule 2 CPC, praying to pass the following
                    judgement and decree against the defendants:
                                  a) declaration that the plaintiffs are entitled to enforce their right of
                    pre-emption to buy the shares of the defendants 1 to 11 in the suit "B"
                    schedule property as per the compromise decree in C.S No.570 of 1978
                    dated 30.04.1985.
                                  b) consequently direct the defendants 1 to 12 by a decree for
                    mandatory injunction to jointly execute a sale deed in respect of the suit
                    "B" schedule property in favour of the plaintiffs herein, after receiving the
                    sum of Rs.1,40,22,400/- and on their failure, and on the plaintiffs
                    depositing the sum of Rs.1,40,22,400/-, this Hon'ble Court shall direct the
                    Asst. Registrar of High Court of Madras to execute the sale deed in respect
                    of the suit "B" schedule property in favour of the plaintiffs.
                                  c) for costs.


                                       For Plaintiffs          :    Mrs.Chitra Sampath
                                                                    Senior Counsel
                                                                    Assisted by Mr.T.S.Bhaskaran


                                       For Defendants           :   D1 to D9, D11 to D16- Set exparte
                                                                    D10-deceased




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                                                                                                C.S.No.254 of 2014



                                                      JUDGMENT

This Civil Suit has been filed for declaration, mandatory injunction

and for costs.

2. The case of the Plaintiff, as set out, in the plaint is as follows:-

a) The plaintiffs state that the property of house, ground and premises

situated in No.29, Stringers Street, Lone Square, Chennai-600 108,

morefully described hereunder as suit "A" schedule of this plaint

was a subject matter of a suit filed in C.S.No.570 of 1978 on the file

of this Court, for partition by one C.Mohamed Siddique against his

sister C.Saifa Bi and his predeceased brother's wife C.Zualaikha Bi.

The above suit ended in a compromise decree between the brother,

sister and his predeceased brother's wife C.Zualikha Bi and this

Court was pleased to pass a judgment and decree on 30.04.1985. As

per the above compromise decree, 2/3 share in the suit "A" schedule

property herein was allotted to the brother C.Mohamed Siddique,

and 1/3rd share was allotted to the sister C.Safia Bi. Further, as per

the clause 8 of the Memorandum of Compromise, in the event of

anyone of the parties decide to sell their share in the suit property

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they should approach the other party and offer the same in writing

by registered post. If the other party refuses to accept the offer, the

parties who want to sell the property, can sell the same to the third

parties. Hence, it was clear that a right of pre-emption had been

given to the parties and their heirs under the compromise decree.

The clause 8 of the compromise decree is reproduced hereunder:

"In the event of any one of the parties (ie) the plaintiff

or the first defendant or their "heirs" are anxious to sell Item

No.1 of the A-schedule property, they shall offer the same to

the other party for a fair and reasonable market rate

prevailing at that time and such offer shall be communicated

in writing by registered post and that if the other party is not

willing to accept the said offer, the plaintiff or the first

defendant or their heirs shall be at liberty to sell the same

jointly to third parties".

b) The plaintiffs state that Mr.C.Mohamed Siddique died on

16.05.1985 leaving behind his three wives and children born

through them. The first wife had 15 children, the second wife had 3

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children and the third wife had 7 children. The second wife of the

said C.Mohamed Siddique, namely Sayeeda Asia Begum and her

son and 2 daughters joined together and filed a suit in C.S No.98 of

1991 on the file of Original Side of this Hon'ble Court, seeking for

their 40/288 share in the estate of C.Mohamed Siddique against the

other legal heirs of C.Mohamed Siddique and Safia Bee. During the

pendency of the suit in C.S No.98 of 1991, C.Safia Bee died leaving

behind her three daughters and the legal heirs of her pre-deceased

son namely C.Abdul Shukoor. Further, during the life time of

C.Safia Bee, she settled her undivided 1/3rd share in the Item 1 of

the suit "A" schedule property in C.S No.98 of 1991 in favour of her

three grandsons, born through her pre-deceased son namely C.Abdul

Shukoor and to her three daughters by a registered settlement deed

(hibba/gift) dated 15.10.2001 and as a consequence they had been

impleaded as parties to the suit. The 1st plaintiff is one of the

daughters of C.Safia Bee. The 2nd plaintiff is one of the grandsons

of C.Safia Bee born through her pre-deceased son. The defendants

1 and 2 herein are the daughters born through the 2nd wife of

C.Mohamed Siddique, the defendants 3 to 9 are the children born

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through the 1st wife of C.Mohamed Siddique. The defendants 10

and 11 are the other two daughters of C.Safia Bee. The 12th

defendant is the subsequent purchaser of the undivided share of the

defendants 1 to 11 herein in the suit "A" schedule property. Since

one C.S.Umai Habiba, the daughter of C.Mohamed Siddique born

through his 1st wife, had also entered into agreement of sale with a

third party but she had not alienated her share under registered

document, she was not made as a party to this suit.

c) A preliminary decree was first passed in the suit in C.S.No.98 of

1991 on 03.09.1997, and further a preliminary decree had also been

passed on 09.08.1999 allotting the shares to the respective parties.

Thereafter, applications had been filed seeking for passing of a final

decree and for appointment of an Advocate Commissioner to divide

the suit properties by metes and bounds. This Court was pleased to

appoint an Advocate Commissioner and the Advocate

Commissioner filed a report suggesting the mode of division.

During the pendency of the final decree proceedings, it appears that

the defendants 1 to 11 appears to have entered into various sale

agreements either in writing or orally with some third parties for the

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sale of their respective undivided share in the suit "A" schedule

property. The plaintiffs came to know about the same and had

represented through their counsel in the course of the hearing of the

final decree proceedings in the court, that they have a right to buy

the shares who are willing to sell their share in the suit property. At

that point of time, none of the defendants 1 to 11 had alienated their

shares under registered documents. This Court while passing orders

in the final decree proceedings on 6.4.2010 observed that it was

open to the plaintiffs to enforce their right of pre-emption by way of

separate proceedings.

d) The plaintiffs were informed that the defendants 10 and 11 had

entered into agreements with one M.Rasik Sultan and Amanullah

with regard to their shares. The plaintiffs had therefore issued a legal

notice on 10.04.2010 to the defendants 10 and 11 marking a copy of

the notice to the proposed buyer informing them about the right of

pre-emption in the suit property and also offering to pay the value of

their share as reflected in the agreement of sale. The defendants 10

and 11 issued a reply on 26.04.2010 denying the pre-emption right

of the plaintiffs to purchase the suit property. In order to avoid the

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involvement of the rights of the various third parties in the suit

property, the plaintiffs had given a public notice in a daily

newspaper in "Malai Malar" dated 25.05.2010, cautioning the public

not to enter into any dealing with the suit "A" schedule property, in

view of the right of pre-emption given to the legal heirs of

C.Mohamed Siddique and C.Safia Bee. Since the plaintiffs were not

aware of the decision of the defendants 1 to 9 to sell their shares also

they had given a public notice in the newspaper expressing their

intention to buy the shares of all the co-owners of the suit property.

e) In the final decree proceedings, taking into consideration that some

of the sharers were desirous of disposing of their share, this Court

had allotted the shares of the defendants 1 to 11 measuring an extent

of 4248.5 sq.ft., morefully described hereunder as suit "B" schedule

property, which is in the southern extreme of the suit "A" schedule

property. It appears that after the passing of the final decree on

6.4.2010, the defendants 1 to 11, without complying with the

condition in the decree in O.S No.570 of 1978 referred above had

executed several sale deeds as mentioned hereunder in respect of

their shares in favour of the 12th defendant and not the agreement

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holder mentioned in their legal notice. The plaintiffs had applied for

the copy of the encumbrance certificate in the month of February,

2011 after receiving the the copy of final decree, and to their

surprise they found that the defendants 1 to 11 had sold their shares

allotted to them in the final decree to the 12th defendant under

various sale deeds for the sale consideration as mentioned

hereunder:

                      S.No.                  Vendor                    Date & Doc.No.         Sale value
                                                                                                 Rs.
                                  1 C.S.Khathijuthus Soghara          14.05.10-612/10       8,71,000/-
                                  2 C.S.Ayesha Siddique               14.05.10-613/10       8,71,000/-
                                  3 C.S.Mohamed Usman                 14.05.10-614/10 12,20,000/-
                                  4 C.S.Mohamed Hasan                 24.05.10-647/10 12,19,200/-
                                  5 C.S.Mohamed Hussain               14.07.10-847/10 12,19,200/-
                                  6 C.S.Mohamed Ibrahim               24.05.10-648/10 12,19,200/-
                                  7 C.S.Umai Zainab                   14.05.10-611/10       6,10,000/-
                                  8 C.S.Umai Maimuna                  14.07.10-848/10        6,10,000/-
                                  9 C.S.Umai Salma                    14.07.10-849/10        6,10,000/-
                             10 C.Katheeeja Begum                     08.07.10-822/10       27,86,400/-
                             11 C.Ayesha Begum                        08.07.10-823/10       27,86,400/-









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f) As per clause 8 of the above said compromise decree in C.S

No.570/1978, the plaintiffs herein, who are the legal heirs of C.Safia

Bee and Donees under the settlement executed by C.Safia Bee have

a right of pre-emption to purchase the shares of other legal heirs of

Mohamed Siddique and C.Safia Bee in the event of a sale in favour

of a third party by them. But, the defendants 1 to 11 herein had in

violation of the clause 8 of the compromise decree passed in C.S

No.570 of 1978, had sold the suit "B" schedule property having an

extent of 4248 1/2 sq.ft. to the 12th defendant, who is a third party,

without offering the same to the other legal heirs of Mohamed

Siddique and C.Safia Bee. Hence the sale entered into between the

defendants 1 to 11 in favour of the 12th defendant is not valid and

the same is not binding on these plaintiffs. The plaintiffs on coming

to know about the above sale deeds had issued a legal notice to the

12th defendant on 23.2.2011 calling upon him to convey the rights

purchased by him from the defendants 1 to 11 in regard to the suit

property agreeing to pay the sale consideration mentioned in the sale

deeds executed in his favour. The 12th defendant had not cared to

issue any reply to the said notice to this day.

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g) The plaintiffs have a right of pre-emption to buy the shares of the

defendants 1 to 11 in the suit property for the sum of

Rs.1,40,22,400/- being the sale price reflected in the sale deeds

executed by them in favour of the 12th defendant, based on the

compromise decree dated 30.04.1985 in C.S No.570 of 1978. The

defendants 1 to 11 had failed to adhere to the terms of the

compromise of giving a prior notice of their intention to sell their

shares and had not offered to sell it to the plaintiffs inspite of the

fact that they were put on notice of the plaintiffs intention to buy

expressed through their counsel during the hearing of the final

decree application in C.S No.98 of 1991. Inspite of the offer of the

plaintiffs to buy expressed also through their legal notice dated

10.04.2010 and through the public notice in the newspaper "Malai

Malar" dated 25.5.2010, the conduct of the defendants in selling

their interests to the 12th defendant is in absolute violation of the

terms of the compromise decree referred above and against the law

of pre-emption. The plaintiffs have thus made a demand openly to

the knowledge of the defendants 1 to 11 and had complied with all

the conditions of right to pre-emption embodied in law. The

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plaintiffs have therefore been advised to file the present suit to

enforce their right of pre-emption over the suit property as the

defendants had failed to honour their obligations. Hence the suit.

3. The case of the 12th Defendant, in a nutshell, as set out in his

written statement, is as follows:-

a) All the allegations contained in the plaint are denied except those

that are specifically admitted herein. The plaintiffs have no right of

pre-emption and as such they are not entitled to have a decree of

declaration of the right of pre-emption to buy the shares of the

defendants 1 to 11 in the suit B schedule property as claimed in the

above suit. The plaintiffs claimed their right as per a decree and

judgement passed in earlier suit for partition in C.S No.570 of 1978

on the file of this Court between C.Mohamed Siddique and his sister

Mrs.C.Safia Bee and his predeceased brother's wife C.Zuliekha Bi.

The suit was decreed as per compromise arrived at between the

parties to the above suit and as such the decree would bind only the

parties to the suit namely C.Mohamed Siddique and his sister

C.Safia Bi and it would not bind their respective legal heirs who

were not parties to the suit in C.S No.570 of 1978. The 12th

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defendant states that as per the records and documents furnished to

him, he has learnt that after the demise of C.Mohamed Siddique on

16.05.1985, his three wives and children born through them were

entitled to have their respective shares in his 2/3rd share while his

sister C.Safia Bi was entitled to have 1/3rd share in all the plaint

schedule properties as mentioned in C.S No.570 of 1978. The

second wife of the said Mohamed Siddique namely Mrs.Sayeeda

Asia Begum and her son and two daughters namely C.S.Mohamed

Ismail, C.S.Kathijuthus Soghra and C.S.Ayesha Siddique filed a suit

in C.S No.98 of 1991 on the file of this Court seeking for their

partition of their 40/288 share in the estate of Mohamed Siddique

against the other legal heirs of him and his sister C.Safia Bi. Saifa

Bi during her life time, settled her undivided 1/3rd share in the plaint

schedule properties mentioned in C.S No.98 of 1991 in favour of her

three daughters who are the first plaintiff and the defendants 10 and

11 above named herein and her three grandsons born through her

predeceased son C.Abdul Shukoor by Hiba, which was latter

declared and acknowledged and which was filed in this Court to

bring the beneficiaries on record as her legal representatives which

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was recognized and confirmed by this Court in Application No.4558

of 2002 dated 29.11.2022 inspite of a contest for the same.

b) The 12th defendant states that the plaint filed in the above suit in

C.S No.98 of 1991 contained A schedule property having 8 items of

the properties and B schedule properties are having 2 items wherein

the defendants 10 and 11 and the plaintiffs are having 355 acres of

land out of 1491.09 acres of land in Survey No.778 and 779 and

Survey No.1/B, Aravatla Village near Pernambut of Gudiyatham

Taluk of previous North Arcot District. By final decree passed in

the above said suit in C.S No.98 of 1991, this Court was pleased to

allot totally 355 acres to the share of C.Safia Bi holding 213 acres

belonged to her as per a decree passed and she was allotted 142

acres as her share to be worked out to her branch thereby making a

total of 355 acres and the same were allotted as the joint piece of

land to facilitate its partition easily and it has been stated so in para

16 of the final decree of this Court. Out of 8 items of plaint A

schedule property of the suit in C.S No.98 of 1991, 7 items of the

properties were already sold and the plaintiffs herein were active

participants in those sale transactions and they did not apply the law

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of pre-emption in respect of these 6 items of the properties sold out

and only with regard to item No.1 of schedule A alone viz., property

No.29 Stringers Street, Chennai-600 108, the above named two

plaintiffs alone now claim right of pre-emption as per law bearing

other three original claimants and however, they cannot claim so as

they have estopped in law for doing so since they waived this right

and abandoned it and acquiesced in for sale of the other properties in

the estate as stated above. The law of pre-emption is not consistent

with equity and good conscience. Further, it is a part of lex loci as

there is no law enacted by the State of Tamil Nadu as it has been doe

in some of the Northern Indian States where the right of pre-emption

is used to be exercised with all restraints. This shows that in

northern part of the country, the law of pre-emption is administered

as per Muslim law but so far the State of Tamil Nadu is concerned it

is not at all recognized here as it creates fetters on the free exercise

of right of use and enjoyment of the property as per the constitution

of India.

c) The plaintiffs had previous notice of the intending sale of the

undivided shares of the defendants 1 to 11, but they did not come

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forward to avoid the sale transactions but they have chosen to do so

only when the final decree proceedings were passed on 06.04.2010.

By that time, the defendants 1 to 11 have already entered into

agreement for sale of their undivided share of the property. This

shows that they had no intention to exercise a bygone law of pre-

emption as they did not do so in respect of their other properties

belonging to the estate which were sold as stated above with their

effect cooperation and participation. Further, the plaintiffs are not

adjacent owners of the shares allotted to the defendants 1 to 11 on

the southern side of the building and as such the plaintiffs are not

the owners of adjoining properties (Shafi-I-jar) and as such the right

of pre-emption if at all available shall not be extended to the extreme

southern side of the properties now allotted to the defendants 1 to 11

which they have chosen to sell to the 12th defendant herein and it is

due to the fact that there is no contiguity of the property as the share

now allotted to the plaintiffs is on the extreme northern end of the

property intervened and separated by other plots of land now sold to

other defendants such as first plaintiff, D1, D2, D4, D8, D9, D10,

D11 and D16 of C.S No.98 of 1991 measuring 2692 sq.ft. The

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plaintiff failed to make a demand for enforcing their right of pre-

emption immediately as per law when they came to know about the

agreement and as such their demand is barred by limitation as the

demand is not made immediately. So far Muslim Law is concerned,

they shall not be in loss of time after the news of the completed sale

was received by the plaintiffs. This demand (Talab-I-Mowsibat)

should have been made to all the other sharers of the property

offering to purchase their respective shares and confining it only to

the defendants 10 and 11 is defective and it is not a Talab-I-

Mowsibat as per Muslim law. This unreasonable and unnecessary

delay on the part of the plaintiffs shall be concluded as an election

not to pre-empt and as per Muslim law, this demand shall be made in

the presence of atleast 2 witnesses and nowhere it has been stated

either in the legal notice or in the plaint that such a demand was ever

made by the plaintiffs in the presence of 2 witnesses as per Muslim

law nor such demand was made in the premises sold to the 12th

defendant herein as per Muslim Law.

d) The 12th defendant further states that the law of pre-emption shall

be applicable only to Muslims, who are governed by the Muslim law

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and as he is a Jain by religion, the law of pre-emption cannot be

exercised against him. The right of pre-emption is a very weak

form of right and the vendor and the vendee are entitled to use all

lawful means to avoid the enforceability of his right which is not at

all recognized by any law to that effect enacted by the State of Tamil

Nadu. Further, the pre-emption is available only to the co-owner of

the property and the partition suit was already passed finally and the

status of being a co-owner is lost and the plaintiffs have no right

whatsoever to claim the right of pre-emption. The plaintiffs tried to

grab the portions of the properties sold to him by the defendants 1 to

11 at the price shown in the sale deeds while the 12th defendant has

spent huge amount for getting the properties which were under the

occupation of several old tenants vacated and got vacant possession

thereof and in order to knock out the properties at the value as

shown in the sale deeds they have tried to exercise the right of pre-

emption and that too by the present only two of them while the

demand was originally made by the 27th defendant and defendants

28 to 31 in the suit in C.S No.98 of 1991. It shows the plaintiffs

deceit in applying the right of pre-emption event though by law they

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are not entitled to do so for the reasons as stated above.

e) So far Item No.1 of B schedule property of the final decree is

concerned, C.Safia Bi, during her life time gifted her properties to

her three daughters viz., The defendants 26, 27 and 28 and her three

grandsons through her predeceased son C.Abdul Shukkoor and the

28thdefendant is the 1st plaintiff herein and the grandsons are

C.Abdul Aleem, who is the second plaintiff and his two younger

brothers viz. C.Mohamed Imran and C.Abdul Hadi. This Hiba was

confirmed and the beneficiaries of Hiba were ordered to be brought

on record of C.S No.98 of 1991 as per order passed on 29.11.2002 in

Application No.4558 of 2002 in the above said suit in C.S No.98 of

1991. The three daughters were allotted 2/3rd share and the grands

sons were allotted remaining 1/3rd share. When this status was set at

rest by all parties to the suit, the 28th defendant supported and

encouraged by her husband K.Abdul Aleem and his son K.Abdul

Khadir and the second plaintiff herein, C.Abdul Aleem got C.Safia

Bi who was admitted in the hospital for recovery of her illness

temporarily discharged from the Zubaida Hospital falsely telling the

doctors to take the patient to attend a marriage and against medical

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advice they took her to Arcot by car and obtained her thumb

impression in two deeds of gift in favour of K.Abdul Khadir only the

son of D28 and the second plaintiff herein by Deeds of Settlement

registered as document No.427 of 2008 and 428 of 2008 dated

10.03.2008 in respect of Forest land of the Hill mentioned in the

second item of Schedule B of the final decree measuring 213 acres

of land out of her total 355 acres of land and after the registration,

the patient was brought and readmitted in the same Zubaida Hospital

on the next day. D26 and D27 have taken criminal action against

these culprits which is still pending on the file of the criminal side of

this Court. There is no cause of action to the above suit. The value

for the suit is purposely under valued as they are fully aware of the

real value of the suit land as per the agreement of sale filed in this

Court and hence the suit is liable to be dismissed in limini.

4.On the pleadings of the parties and hearing the learned counsel on

either side, the following issues were framed for determination:-

(1) Whether the plaintiffs have a right of pre-emption in the suit property as per the decree and judgment passed in the suit in C.S No.570 of 1978?

(2) Whether the plaintiff's right to pre-emption is estopped on account of waiver, acquiescence and abandonment?

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(3) Whether the suit is barred by limitation?

(4) Whether the suit is properly valued?

(5) Whether the plaintiffs are entitled to the relief of mandatory injunction directing the defendants to jointly execute a sale deed in respect of the suit property in favour of the plaintiffs? (6) To what other reliefs, the plaintiffs are entitled?

5. Though summons were served on the defendants 1 to 9, 11, 13 to

16, they have not chosen to appear before this Court, inspite of several

opportunities and hence, the defendants 13, 15 and 16 were set exparte on

06.06.2023 and the defendants 1 to 9, 11 and 14 were all set exparte on

05.02.2024. Pending the suit, the 10th defendant died and hence, his legal

heirs were impleaded as defendants 13 to 16. Though the 12th defendant

filed his written statement, he failed to appear before this court at the time

of trial and hence, he was set exparte on 05.02.2024.

6. On the side of the Plaintiffs, the 2nd plaintiff was examined as

PW1 and Ex.P1 to Ex.P21 were marked.

7. Heard the learned counsel for the plaintiffs and also perused the

materials available on record.

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8. The 2nd plaintiff/PW1 has filed Proof Affidavit reiterating the

plaint averments, besides marking twenty one documents, namely, Ex.P1

to Ex.P21.

9. The learned counsel for the plaintiffs contended that the suit 'A'

schedule property was a subject matter of a suit filed in C.S No.570 of

1978 on the file of this Court, for partition by one C.Mohamed Siddique

against his sister C.Safia Bi and his predeceased brother's wife C.Zulaikha

Bi. The said suit was ended in compromise. The compromise decree in C.S

No.570 of 1978 dated 30.04.1985 is marked as Ex.P1. As per clause 8 of

Ex.P1 compromise decree in C.S No.570 of 1978, the plaintiffs who are

the legal heirs of C.Safia Bi and Donees under the settlement executed by

Safia Bee, have a right of pre-emption to purchase the shares of other legal

heirs of Mohamed Siddique in the event of a sale in favour of a third party

by them. The defendants 1 to 11 who are the legal heirs of Mohamed

Siddique had violated the terms of the compromise decree in C.S.No.570

of 1978 (Ex.P1) by selling the suit 'B' schedule property having an extent

of 4247-1/2 sq.ft. to the 12th defendant, who is the third party. To prove

the same, certified copy of the sale deeds, Ex.P8 to Ex.P18 were marked.

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The sale of suit 'B' schedule by the defendants 1 to 11 in favour of 12th

defendant was without offering the same to the other legal heirs of

Mohamed Siddique and Safia Bi. Hence the sale deeds entered into

between the defendants 1 to 11 and the 12th defendant are not valid and

the same are not binding on the plaintiffs. The plaintiffs, on coming to

know about the above sale deeds issued a legal notice (Ex.P19) to the 12th

defendant on 23.02.2011 calling upon him to convey the rights purchased

by him from the defendants 1 to 11 in regard to the suit property. Further,

the plaintiffs also conveyed that they agreed to the very same sale

consideration as mentioned in the sale deeds executed in favour of the 12th

defendant. But, the 12th defendant failed to respond to the same.

10. The learned counsel further submitted that the plaintiffs have a

right of pre-emption to buy the shares of the defendants 1 to 11 in the suit

property for a sum of Rs.1,40,22,400/- being the sale price reflected in the

sale deeds executed by the defendants 1 to 11 in favour of 12th defendant.

Based on the compromise decree dated 30.04.1985 in C.S No.570 of 1978,

the defendants 1 to 11 had failed to adhere to the terms of the compromise

of giving a prior notice of their intention to sell their shares and had not

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offered to sell it to the plaintiffs, inspite of the fact that they were put on

notice regarding the plaintiffs' intention to buy and expressed through their

counsel during the hearing of the final decree application in C.S No.98 of

1991. The said fact was recorded by the Hon'ble Judge in the final Decree

which is marked as Ex.P4. Inspite of the plaintiffs' offer to buy, expressed

the same through their legal notice dated 10.04.2010 (Ex.P5) and also

effected public notice in the newspaper "Malai Malar" (Ex.P7) dated

25.05.2010, the conduct of the defendants 1 to 11 in selling their interests

to the 12th defendant is in absolute violation of the terms of the

compromise decree referred above and against the law of pre-emption.

Thus, the plaintiffs have made a demand openly to the knowledge of the

defendants 1 to 11 and had complied with all the conditions or right to pre-

emption embodied in law. Further, the oral and documentary evidence let

in by the plaintiffs were not controverted by the defendants. Particularly,

PW1 was not cross examined on the side of the defendants. Therefore, the

plaintiffs have duly proved the claim for pre-emption and the plaintiffs are

entitled to enforce their right of pre-emption over the suit property as the

defendants had failed to honour their obligation.

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11. The learned counsel for the plaintiffs in support of his

contention relied on the judgments reported in i) (1954) Supreme Court

cases 836 and ii) 1961 SCC Online SC 133. In para 16, 22 & 23 of the

judgment reported in 1954 Supreme Court Cases 836, it was held that the

right of pre-emption of Mohammedean is enforceable and it can be

enforced as against the Hindu buyer. Further, in the judgment reported in

1961 SCC Online SC 133, the right of pre-emption can be exercised after

the completion of registration. As per the Mohammedan law, the right of

pre-emption can be exercised after execution of sale deed. In the present

case, the defendants 1 to 11 had conveyed their lands in favour of the 12th

defendant under registered sale deeds. Therefore, the plaintiffs have come

forward with the present suit to exercise their right of pre-emption and

hence, he prays to pass a judgment and decree as prayed for.

12. On perusal of the written statement, it is the contention of the

12th defendant that during pendency of the final decree proceedings, it was

brought to the notice of the Hon'ble Court that the defendants 1 to 11

wanted to sell their respective share of land and superstructure to the

intending purchasers who also filed their affidavit of willingness to

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purchase the undivided shares. At that time, the plaintiffs herein have not

objected by bringing the right of pre-emption and other parties to the suit

being the legal heirs of C.Mohamed Siddique and Mrs.C.Safia Bi did not

support this claim of pre-emption and when the Hon'ble Court was pleased

to frame and pass final decree in the above suit then only it was brought to

the Hon'ble Court of their right of pre-emption to purchase the undivided

shares of the defendants 1 to 11 and this fact was clearly stated so in the

final decree drafted and passed by this Hon'ble Court on 06.04.2010.

Further, it is pleaded that the right of pre-emption is lapse due to waiver

abandonment and acquiescence in selling other items of property. Further,

it is submitted that it is a part of lex loci as there is no law enacted by the

State of Tamil Nadu as it has been doe in some of the Northern Indian

States where the right of pre-emption is used to be exercised with all

restraints. This shows that in Northern part of the country, the law of pre-

emption is administered as per Muslim law but so far the State of Tamil

Nadu is concerned, it is not at all recognized.

13. In view of the above said submissions made by the learned

counsel for the plaintiffs and upon perusal of the written statement filed by

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the 12th defendant, the right of pre-emption is only a preferential right and

not an absolute right and there is no bar to the other co-sharers to transfer

the property and the said right is only a weak right.

14. In the above case, the issue of exercising the preferential right

to purchase the share of the other co-sharers was brought to the notice of

this Hon'ble Court during the final decree proceedings itself and it has

been made clear that the right of pre-emption can be exercised only it is

available. In this case, the properties have already been sold and the same

had not been challenged.

15. Apart from the above, the third party rights have been created

and they have been put in possession of the properties. There is no law

compelling the other co-sharer to sell the land. The right claimed in the

above suit is only a preferential right and the same can be exercised only in

the case of willingness by parties. There are other co-sharers who are not

made as a party in these proceedings.

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16. The right of enforcing the pre-emptive right was raised in the

final decree proceedings and the same was rebutted by the defendants 26

and 27 stating that they are not willing to sell their shares. Therefore, the

intention to sell to third parties already made known to the plaintiffs. The

right of pre-emption is a weak and preferential one and there is no law

compelling the other party to sell their land. Hence, this Court is of the

view that the relief sought in the plaint cannot be granted.

17. In the result, this Civil Suit is dismissed. No costs.

09.05.2025 Index:Yes/No Web:Yes/No Speaking/Non Speaking uma

1. List of Witnesses examined on the side of the Plaintiffs:-

PW1 C.Abdul Aleem

2. List of Exhibits marked on the side of the Plaintiffs:-

Ex.P1 30.04.1985 Certified copy of the judgement in C.S No.570 of

Ex.P2 17.10.2005 Certified copy of the report of the advocate commissioner filed in C.S No.98 of 1991.

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Ex.P3 06.04.2010 Certified copy of judgement passed in C.S No.98 of

Ex.P4 06.04.2010 Certified copy of final decree passed in C.S No.98 of 1991

Ex.P5 10.04.2010 Office copy of the legal notice issued by the plaintiffs to the 10th and 11th defendants.

Ex.P6 26.04.2010 Original reply given by the defendants 10 and 11

Ex.P7 25.05.2010 Original paper publication given by the plaintiffs

Ex.P8 14.05.2010 Certified copy of sale deed executed by the 1st defendant in favour of 12th defendant.

Ex.P9 14.05.2010 Certified copy of sale deed executed by the 2nd defendant in favour of 12th defendant.

Ex.P10 14.05.2010 Certified copy of sale deed executed by the 3rd defendant in favour of 12th defendant.

Ex.P11 24.05.2010 Certified copy of sale deed executed by the 4th defendant in favour of 12th defendant.

Ex.P12 14.07.2010 Certified copy of sale deed executed by 5th defendant in favour of 12th defendant.

Ex.P13 24.05.2010 Certified copy of sale deed executed by the 6th defendant in favour of 12th defendant.

Ex.P14 14.05.2010 Certified copy of sale deed executed by the 7th defendant in favour of 12th defendant.

Ex.P15 14.07.2010 Certified copy of sale deed executed by the 8th defendant in favour of 12th defendant.

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Ex.P16 14.07.2010 Certified copy of sale deed executed by the 9th defendant in favour of 12th defendant.

Ex.P17 08.07.2010 Certified copy of sale deed executed by the 10th defendant in favour of 12th defendant.

Ex.P18 08.07.2010 Certified copy of sale deed executed by the 11th defendant in favour of 12th defendant.

Ex.P19 23.02.2011 Office copy of legal notice issued by the plaintiff to the 12th defendant.