LAKSHMANA PILLAI Vs. KRISHNASWAMY

JUDGEMENT

(1.) SECOND defendant is the appellant. The suit was for enforcement of a right of pre-emption.

(2.) THE facts can be summarised as follows:- First defendant's mother Chempakam Ammal executed Ext. A-1 settlement deed settling properties inclusive of the plaint schedule on her five sons and a grandson. THE plaint schedule is D schedule in Ext. A-1 allotted to the 4th party in the settlement deed. THE first defendant, Gopala Pillai, the 4th party and Chempakam Ammal executed Ext. A-2 mutual exchange deed under which the D schedule wi 's obtained by the 1st defendant who is the 3rd party in Ext. A-1. THE plaintiff was allotted C schedule therein. Chempakam Ammal reserved right of enjoyment on all the items in Ext. Al except C schedule. According to' the first respondent as per clause to in Ext. A1, alienation of property allotted under Ext. A-1 could be only to the allottees therein. First defendant entered into an agreement with the appellant to sell the property pursuant to which he instituted Ext. A4 suit for specific performance and the suit was decreed. THE first respondent alleged that he is entitled to have the plaint schedule property offered to him and that the first defendant was not entitled to execute sale deed in favour of the appellant who is a stranger. First defendant died pending suit.

(3.) IT is contended that the suit is premature inasmuch as at the institution of the suit, no sale deed was executed with respect to the plain schedule property. As already seen plaint schedule is the schedule in ext. A-1 and as per Ext. A2 mutual exchange deed the D schedule was obtained by the first defendant. The first defendant entered into an agreement with the appellant to sell the D schedule. On the allegation that the first defendant did not execute the sale deed as per the agreement appellant instituted Ext. A-4 suit. He got Ext. A-5 decree. Later in execution of Ext. A-5 decree a sale deed was executed by the execution court. IT is stated that the sale deed was executed on 23-1-1981. The suit was instituted on 22-7-1980. According to the appellant, as the right to enforce the pre-emption right could arise only on the execution of the sale deed, the suit was premature.