KARICHORI RAMAN NAIR Vs. KODOTH KRISHNAN NAIR

JUDGEMENT

(1.) APPELLANT was the second defendant in a suit for enforcement of a right of pre-emption, which has been decreed by the learned Subordinate Judge, Kasargod reversing its dismissal by the learned Munsiff, Kasargod.

(2.) PLAINTIFF is the brother of the first defendant. By an agreement (muchalika) Ext. X-1 dated 2-10-1964 they and their two brothers and two sisters appointed P. W. 3, an Advocate who is also their relation, as arbitrator to partition the properties which they bad inherited from their rather. On 2-8-1965 P. W. 3 passed his award Ext. A-1 dividing the properties among the sharers and allotting the suit property, among other items, to the first defendant. The parties have accepted the partition and have taken their shares in terms of Exhibit A-1. Exhibit A-1 which has been registered but has not been filed in Court as required by the Arbitration Act, provides in paragraph 8 for a right of pre-emption in the following terms :

(3.) THE trial Court on a former occasion decreed the suit in the plaintiff's favour, directing the second defendant to transfer the property by a sufficient instrument. In the appeal, A. S. No. 19 of 1968, taken by the second defendant the lower appellate Court held that the suit which as framed involved a decision upon the existence, effect and validity of the award Ext. A-1 was not maintainable as it had not been filed in Court and made by the subject of a decision. It however allowed an application made by tbe plaintiff to amend the plaint so as to incorporate a paragraph basing the suit on a pre-emption agreement alleged to have been reached by the parties in the course of the arbitration proceedings, before the award. In view of this amendment, the Court set aside the decision and remanded the suit for fresh trial.