VIKRAMARAJAN P Vs. ASOK KUMAR

JUDGEMENT

(1.) Suit for pre-emption of plaint B schedule property in O.S.No.1285/2010 was dismissed by the learned Second Additional Sub Judge, Thiruvananthapuram. Consequential reliefs in respect of plaint B schedule, claiming declaration of Ext.A4 settlement deed and Ext.A5 sale deed and permanent injunction as regards plaint A schedule property were also dismissed. Being aggrieved by the dismissal, the plaintiff has filed this appeal.

(2.) Plaintiff is the owner of plaint A schedule 1.35 cents and a part of the common building therein which is D schedule to Ext.A1 Will dated 21.5.1990 executed by his mother. Plaint B schedule is the E schedule situated to the immediate east of D schedule measuring 1.35 cents and the remaining part of the building was allotted to the first defendant who is plaintiff's brother under the same Will. The D schedule was gifted by first defendant in favour of his daughter/second defendant as per Ext.A4 settlement deed dated 22.11.2004. It is from the second defendant, the contesting third defendant purchased plaint B schedule under Ext.A5 settlement deed dated 22.1.2005.

(3.) There is a clause in Ext.A1 Will which restrained the holders of D and E schedule from selling the properties to third parties. It was provided that if sale of these items was needed, it shall be limited only to the respective holders alone and in any event, sale to any third party was necessary, it could be effected only with the mutual consent of both schedule holders.