KUMARAN NAIR Vs. MOHAMMED HANEEFA

JUDGEMENT

(1.) Ext. A1 will executed by Krishna Pillai bequeathing his properties individually to his eleven children on 16-1-1966 took effect after his death. Though the different items were given to the legatees absolutely with full right of alienation, there is a provision at the fag end that the legatees could sell the properties only to one or more among the other legatees and not to Strangers and any document executed in violation could be got set aside by others.

(2.) Plaint Schedule.5 1/2 cents and the shop building in it was allotted to the first defendant. Plaintiff is another son of Krishna Pillai. Properties were bequeathed to him also. First defendant is a low paid employee in the Government Press. His residential building in another property got destroyed in flood. He was in urgent need of raising funds to reconstruct it. Only solution was to sell the suit property. He approached all the other ten legatees including the plaintiff requesting them to purchase the property. They refused saying they have no funds. Registered notices were issued to all evidenced by Ext. B1 series. Plaintiff alone did not get the notice, reason being his name was written by mistake as Sukumaran Nair instead of Kumaran Nair. Another brother by name Sukumaran Nair got two notices. Since nobody came forward to purchase, first defendant sold the property to the second defendant on 3-10-1979 for Rs. 10,000/-. Second defendant was already in occupation of the building. That may be one of the reasons why others did not purchase. None else except the plaintiff has now any complaint. Non receipt of notice is the sole ground which actuated the suit. The suit is said to be at the instigation of the other legatees and one of their tenants who supplied funds.

(3.) Prayer in the suit is to get a sale deed executed for Rs. 10,000/-, in exercise of the right conferred under Ext. A1 which is claimed to be a right of preemption. Defendants contended that there is no right of preemption in Ext. A1 and what is involved is only an absolute restraint: on alienation which is void being repugnant to the absolute estate created under the will. Second defendant also claimed to be a bona fide purchaser for value without notice of the provision. That contention was found against by the Trial Court. His claim under S.106 of the Land Reforms Act was also rightly negatived. Trial Court decreed the suit on the finding that what is involved is a preemption clause. But the appellate court disagreed and said that it is not a preemption clause but a restraint on alienation which is void. Appeal was allowed and the suit dismissed. Hence the plaintiff came up in appeal. But the appellate court also agreed with the Trial Court on the findings that plaintiff had no notice, that the second defendant is not a bona fide purchaser and that he is not entitled to the benefits of S.106 of the Land Reforms Act.