IN RE: PUTHIYA PURAYIL AMMAD KUNNI MOIDEEN Vs. STATE
HIGH COURT OF MADRAS
In Re: Puthiya Purayil Ammad Kunni Moideen
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Ramaswami, J. -
(1.) BOTH the lower Courts found 'that the othidar in this case was entitled to a right of pre -emption by paying a reasonable price to the mortgagor selling the properties and that the price need not be the price which is offered by a stranger.
(2.) IN support of his contention that this raises a point of law and that the price which the mortgagor ought to receive is the price which is offered by a stranger, the learned Advocate for the appellant relied upon five decisions. The first decision is - 'Cheria Krishnan v. Vishnu',, 5 Mad 198 (A), decided by Kernan and Kindersley JJ. In this decision it was held that
"an otti mortgagee, if he avails himself of his right of pre -emption, must pay whatever sum is bona fide offered to the jenmi for his equity of redemption; but the ottiholder is entitled to be fully informed as the circumstances and amount of the offer before electing to buy; public notice of, and the option of bidding at, a court -sale of the jenmi's right do not constitute a valid offer of pre -emption so as to deprive the othi holder of his right of pre -emption, if he does not purchase the Jenmi's right."
This is based on the principle that the othi holder should not be driven to give any fancy price at an auction and that he is entitled to the advantage which his position gives him. In other words, the price contemplated under this decision is reasonable price and not competitive price.
The next decision is - 'Vasudevan v. Kesha -van',, 7 Mad 309 (B). In this decision a Jenmi (mortgagor) having conveyed certain land upon tenure (mortgage, of which the right of pre -emption and the option of making further advances are incidents) created a further charge on the land, without giving the veppuholder the option of making the advance required. In execution of a decree against the Jenmi a judgment creditor brought to sale the right of the jenmi in the land subject to the further charge. In a suit brought by the veppuholder to set aside the auction sale on the ground that his right of pre -emption was injured thereby, it was held that the suit would not lie. There is no observation in the judgment of Turner C. J. throwing any light whether the veppuholder is entitled to pay a reasonable price or competitive price.
(3.) THE third decision is - 'Amotti Haji v. Kunhayan Kutti',, 15 Mad 480 (C), decided by Muttuswami Aiyar and Best JJ. In this decision an ottidar in Malabar was held to lose his rights of pre -emption if he refuses to bid at a court -sale of the land comprised in his otti, held in execution of a decree against the Karnavan and senior anandravan of the tarwad, in which the Jenmi right Is vested, after having been specially invited to attend and exercise that right, and makes no offer to take the property for a long time after the court -sale. The decision turned upon the simple point that the right of the othidar for pre -emption is a case of election and the court -sale created necessity for the appellant's election to buy or not to buy and after once electing not to buy he cannot be permitted to change his mind and assert his right for preemption. There is no decision regarding the othidar having to pay either a reasonable price or a competitive price.;
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