PADMANABHA PILLAI MADHAVAN NAIR Vs. CHINNA KUNJI

JUDGEMENT

(1.) The fifth defendant is the appellant in this appeal against second appeal and the plaintiffs the contesting respondents.

(2.) The suit property is a portion of a non residential building, which belonged to the tarwad of plaintiffs 1 and 2 and defendants 1 and 3. Under Ex. P1 of 15th October 1949 there was a partition; and the partition deed contained a covenant that, if any sharer were to sell his share, it must be offered to the other sharers for a fair price and only after they refused in writing to purchase could it be sold to a stranger. The fourth defendant, a stranger to the tarwad, instituted a suit on promissory notes executed by defendants 1 and 2 obtained a decree charged on the suit property and in execution thereof purchased the property too. The sale was confirmed; and thereafter, the fourth defendant assigned his right to the fifth defendant (the appellant).

(3.) The plaintiffs filed the suit which has given rise to the appeal for preemption in terms of Ex. P1. The lower courts found that the covenant for pre emption was valid but was not available against defendants 4 and 5, who were purchasers at court auction. And the suit was dismissed. One of the plaintiffs and the legal representatives of the other plaintiff came up in second appeal to this Court; and Madhavan Nair J. allowed the second appeal on two grounds -- that there was no waiver or acquiescence of the right of pre emption on the part of the plaintiffs and that the right of pre emption was available even against purchasers in court auction. It is against the said decision in second appeal that this appeal has been preferred. (the decision of Madhavan Nair J. in second appeal is reported as Chinna Kunji v. Krishnan: 1966 KLT 727 ).