TILAK RAJ BAKSHI versus AVINASH CHAND SHARMA (DEAD) THROUGH LRS. & OTHERS

Citation: [2019] 10 S.C.R. 251 · Decided: 20-08-2019 · Supreme Court of India · Bench: ASHOK BHUSHAN · Disposal: Dismissed

Cited by 1 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

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TILAK RAJ BAKSHI
v.
AVINASH CHAND SHARMA (DEAD) THROUGH LRS. &
OTHERS
(Civil Appeal Nos. 1524-1525 of 2019)
AUGUST 20, 2019
[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
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
   [2019] 10 S.C.R. 251
251
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SUPREME COURT REPORTS
[2019] 10 S.C.R.
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.
Dismissing the appeals, the Court
HELD : 1.1 WHETHER THERE WAS A FAMILY
SETTLEMENT?
No material has been placed by the second defendant to
establish that the alleged family settlement is a forged document.
There is no case that it is not a family settlement. The settlement
is arrived at between the plaintiff, his brother-the first defendant
and another brother-third defendant. Therefore, it is proceeded
on the basis that there is a family settlement. [Para 17]
[265-G-H]
1.2 WHETHER THE FAMILY SETTLEMENT WAS
VAGUE?
The mere fact that a plea is not taken, that the clause in
question is vague, and hence, unenforceable and void 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. Clause (5) in question provides that the property
in question cannot be sold without concurrence of the three
brothers in writing. If it is sold on the agreement of three brothers,
the first preference is to be given to both other brothers. When
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it is stated that the property cannot be sold without concurrence
of the three brothers in writing, there cannot be any doubt about
its meaning. It means what it says which is that should a brother
want to sell the property, the other two brothers must agree in
writing. This clause cannot be described as vague. This is diff

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