SMT. VIJAYALAKSHMI versus B. HIMANTHARAJA CHETTY AND ANR.

Citation: [1996] SUPP. 2 S.C.R. 382 · Decided: 07-05-1996 · Supreme Court of India · Bench: M.M. PUNCHHI · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
SMT. VUAYALAKSHMI 
v. 
B. HIMANTHARAJA CHETTY AND ANR. 
MAY 7, 1996 
[M.M. PUNCHHI AND S.C. SEN, JJ.] 
Pre-emption-Right of-Conferred under partition deed-l'wtition of 
property between two brotlw:< and their father-Partition deed entitled a party 
to dispose of property allotted to him but not to any 'stranger' without giving 
C the parties opp01tunity to buy it by pre-emption-One brother bequeathed his 
property to his wife who in tum bequeathed it to his foster child-Other brother 
filed suit against foster child claiming property in enforcement of his right of 
pre-emption-Held : foster child had long association with her foster 
parents-Hence, she was not 'stranger' to family-Other brother not entitled 
D to enforce his light of pre-emption against foster child. 
E 
F 
Words and Phrases : ''pre-emption" and "stranger
1'-Meaning of 
The appellant's foster father and the respondent were brothers. The 
brothers and their father effected a partition of their joint family proper-
ties under a registered Partition Deed. The Partition Deed entitled a party 
to dispose of the property allotted to him but not to any stranger without 
giving the parties to the Partition Deed an opportunity to buy it by pre-
emption. The foster father of the appellant bequeathed his property by Will 
to his wife and after his death his widow bequeathed it by Will to the 
appellant as her foster mother. 
The respondent instituted a suit against the appellant claiming the 
property, in enforcement of his right of pre-emption. The Trial Court 
decreed the suit. On appeal the Division Bench of the High Court differed 
in its opinion. This divergence of opinion attracted Section 98(2) of the 
G Code of Civil Procedure, 1908 and, therefore, the judgment and decree of 
the Trial Court got confirmed. Being aggrieved the appellant preferred the 
present appeal. 
Allowing the appeal, this Court 
H 
HELD : 1.1. The word 'pre-emption' is a term of law. It is a right of 
382 
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VIJAYALAKSHMI v. B.H. CHETTY 
383 
substitution conferred on someone either by a Statute, custom or contract. A 
The right is to step into the shoes of the vendee preferentially, on the terms 
of sale already settled between the vendor and vendee. [390-D] 
Atam Prakash v. State of Ha1yana, [1986] 2 SCC 294 and Govinda 
Dayal v. Inayatulla, !LR 7 All 775, referred to. 
1.2. The word 'stranger' used in the Partition Deed has to be under-
stood not in terms of blood or marriage relationship with the family but as 
a person unconnected \Yith it, unkncn-\11 in character and antecedents to the 
executants of the Deed. The \Vord 'stranger' in the text has to be interpreted 
as that person \\'ho has no connection whatsoever with the fan1ilies of the 
original executants i.e. the father and hvo sons. The appellant was not an 
utter stranger to the fan1ily n1cmhcrs though she may not have been related 
to thc1n through blood or n1arriage or othenvise by legal adoption. In any 
case, she had become connected \\ith the family\\'hich relationship required 
B 
c 
to he respected \Vith son1e sanctity, legitimately due to hun1an bonds, be-
D 
l:Uuse of her long association "'ith her foster-parents. Her status as such 
could by 1u1 n1cans be tern1ed as a ':-;;trangcr' for the purpose of the Partition 
l)eed. Thus if the bequest in her favour \Vas not made to a total stranger, 
one need not enter the thicket to find \Vhether the appellant "'as legally a 
stranger to the family, \Vhen factually she \\'as not, and in that manner not 
unconnected with :he family. [389-G-H, 390-A-B] 
E 
2.l. The \Vords "hy pre-emption in the Partition Deed 'rere conscious-
ly employed to denote that the opportunity to buy the property by pre-emp-
tion "'ould only arise "'hen there is a sale and on no other disposition. It 
could then be said that but for these \\'ords "by pre-en1ption", any other F 
disposition could have come \rithin the grip of the Clause ton'ards buying 
property, but without bringing in the word "pre-emption". [390-G] 
2.2. Therefore, the terms of the Partition Deed, the contractual right 
of pre-emption conferred on the parties to buy property before it is 
disposed of to a stranger \\'as based on the precondition that the proposed G 
or actual disposal would be only by way of sale and no other, and that too 
if 1nade to a stranger. None of these conditions are satisfied in the facts 
and circun1stances of the case as neither is the disposition a sale nor is 
the transferee a stranger. 

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