Case Note & Summary
The appellant, original plaintiff, filed a second appeal against the judgment and decree dated 31.08.1994 in Regular Civil Appeal No. 2/1993 passed by the Additional District Judge, Buldhana, which confirmed the judgment and decree dated 22.09.1992 in Regular Civil Suit No. 133/1987 by the Civil Judge, Senior Division, Buldhana. The plaintiff had filed the suit for declaration that the agreement of sale between defendant no.2 Sakharam Bhokardankar and defendant no.1 Sakharam Sonune was void, and for possession of the property. The plaintiff's case was that he and defendant nos. 2 to 4 were brothers and members of a joint Hindu family. After partition in August 1978, there was an agreement among them that if any brother wanted to sell his share, preference would be given to the other brothers, and only if they refused could the share be sold to a stranger. Defendant no.2 entered into an agreement to sell his 1/4th share to defendant no.1 without offering it to the plaintiff. The trial court and first appellate court dismissed the suit, holding that the plaintiff had waived his right of pre-emption by writing a letter (document 'A') consenting to the sale. The substantial question of law was whether the letter constituted waiver. The High Court held that the letter clearly indicated the plaintiff's consent to the sale, thereby waiving his right of pre-emption. The appeal was dismissed with no order as to costs.
Headnote
A) Pre-emption - Waiver - Consent Letter - Agreement among co-sharers to give preference in sale - Plaintiff's letter consenting to sale to stranger amounts to waiver of right of pre-emption - The court held that the letter clearly indicated plaintiff's consent to the sale, thereby waiving his right to pre-empt (Paras 1-3).
Issue of Consideration
Whether the letter marked as document 'A' constitutes waiver of the plaintiff's right of pre-emption under the agreement among brothers.
Final Decision
The appeal is dismissed. The judgment and decree of the lower courts are confirmed. No order as to costs.
Law Points
- Pre-emption
- Waiver
- Consent
- Agreement among co-sharers
- Interpretation of documents
