S SUNDARAM Vs. R DAMODARASWAMI

JUDGEMENT

(1.) The plaintiffs are the appellants. They filed the suit for declaration of their pre-emption right and for recovery of possession of the plaint properties. The averments in the plaint are as follows - The plaintiffs are brothers and the second defendant is their sister. One Valliammal is the mother of the plaintiffs and the second defendant. The family owned considerable properties and a written partition took place on 17-2-1960. The sharers agreed therein that even after the partition, the sharers should not sell their shares to outsiders and a condition was laid in the partition deed that in the event of any alienation by any of the sharers, preference should be given to the other sharers to purchase the same.

(2.) The mother of the plaintiffs and the second defendant, viz, Valliammal was allotted certain properties in the partition deed and she has gifted her share of the properties to her only daughter, the second defendant herein, under a deed dt. 14-9-1972. Now, it transpires that the second defendant had sold one of the items settled under the gift deed to the first defendant under a sale deed dated 22-11-1975 for a consideration of Rs. 53,000, without the knowledge of the plaintiffs. No offer was made by the second defendant to the plaintiffs or to any other sharer calling upon them to purchase the same. The purchaser-first defendant was also aware of the right of pre-emption and therefore he is not a bona fide purchaser. The plaintiffs have therefore filed the suit for declaration of their right of pre-emption and to direct the first defendant to deliver the plaint property to the plaintiffs on receiving Rs. 33,000.

(3.) The first defendant - purchaser filed a written statement as follows :- The gift by the second defendant's mother in favour of the second defendant was absolute and unconditional. The gift deed dated 14-9-1972 in favour of the second defendant was attested by the plaintiffs themselves. This defendant was not aware of the right of pre-emption and he is a bona fide purchaser for value. He has since made lot of improvements and therefore the sale deed in his favour must be upheld.