M GOPAL MUDALIAR Vs. THANGAMMAL

JUDGEMENT

(1.) THE above second appeal has been filed by the 1st defendant, who was unsuccessful throughout. THE suit O.S.No.269 of 1976 has been filed by the 1st respondent herein, who is the widow of one Duraisamy Mudaliar, for declaration of the plaintiff's title to the suit property and for vacant possession of the same. THE plaintiff claims that the suit properties originally belonged to her husband Duraisamy Mudaliar, have been allotted to his share in the family partition deed dated 9.12.1954, marked as Ex.A.1; that he had been in possession and enjoyment of the same eversince the partition; that the plaintiff and her husband having sold the same for themselves and on behalf of their minor children in favour of the 2nd defendant by name Panchakshara Mudaliar, under a sale deed dated 21.3.1959, marked as Ex.A.2 and subsequently the 2nd defendant along with his wife and minor children, in their turn, sold the same in favour of the plaintiff, under a sale deed dated 12.9.1973, marked as Ex.A.3. THE 3rd defendant has been a tenant of the suit property. Though after the purchase by the plaintiff he was informed of his duty to pay the rent to the plaintiff and he has agreed also to pay the same to the plaintiff, later, he not only failed to pay the rent to the plaintiff, but started disputing the title of the plaintiff, in collusion with the other defendants. It is also stated that subsequent to her purchase the plaintiff was asked to sell the property to the 1st defendant M.Gopal Mudaliar, the appellant in the above appeal, and when the plaintiff declined to accede to such a request, it appears that the 1st defendant got the 2nd defendant execute a cancellation deed, dated 16.10.1973, marked as Ex.B.1, purporting to cancel the sale deed dated 12.9.1973 and had another sale deed, dated 20.1.1975, executed by the 2nd defendant in favour of the 1st defendant, which has been marked as Ex.B.10. It is in such circumstances, the suit came to be filed by the 1st respondent/plaintiff for the relief referred to above.

(2.) THE 1st defendant has filed a written statement and contended that the suit is not maintainable since the plaintiff has no title or possession of the suit property; that her claim of title under the sale deed dated 1 2. 9.1973 is not true, valid or supported by consideration; that the same has been subsequently cancelled and that he has purchased the property for valid consideration and, as bona fide purchaser for value, his title has to be upheld and that he being the absolute owner with exclusive possession of the property and entitled to a preferential right of purchase as per the terms of the partition deed in the family under Ex.A.1, he alone has got valid title and right to possession. THE 2nd defendant also filed a written statement contending that the suit was not maintainable in law; that the plaintiff has no title or possession to the suit property and the sale deed in her favour was executed without any consideration. THE 3rd defendant merely contended that he is the tenant of the property and denied title of the plaintiff and, at any rate, not liable to be evicted except in accordance with the provisions of the Tamil Nadu Buildings (Lease and Rent Control Act, 1960.

(3.) MR.M.S.Subramanian, learned counsel appearing for the appellants contended that as per the stipulations contained in the partition deed, Ex.A.1 between four brothers, the sale of the right, title or interest of any one of the sharer can only be to the other sharer brother and could not be even in favour of the wife of such sharer brother and, therefore, the plaintiff cannot claim any right or title under Ex.A.3 purchase made by her. It was also contended, for the appellants, that the appellant having purchased as a co-sharer entitled to a right of pre-emption as granted and confirmed under a contractual stipulation between the parties engrafted in Ex.A.1 partition deed itself, he must have been held to have acquired title to the share held originally by Duaraisamy Mudaliar also and that the interpretation placed by the courts below on the scope and purport of the condition granting the preferential right of purchase to the sharers among themselves is contrary to law. The learned counsel while placing reliance upon the decision reported in Ram Baran Prasad v. Ram Mohit Hazara , AIR 1967 SC 744 contended that a partition among the original sharers containing a clause, giving preferential right of purchase to the sharer among themselves is enforceable by and against the parties thereto as also their legal heirs and legal representatives, including assignees and transferees, and that such provision does not offend the rule against perpetuities. A perusal of the decision of the Apex Court go to show that their Lordships have held that the preemption clause considered by them was not merely a personal covenant between the contracting parties, but was a covenant binding on assignees or successors-in-interest of original contracting parties and having regard to the passing of the Transfer of Property Act and, particularly, the provisions contained in Ss. 14, 40 and 54 of the said Act the rule against perpetuity which applies to equitable estates in English law cannot be applied to a covenant of preemption. Pursuing the said line of approach, drawing inspiration from the said decision, it is contended by the learned counsel for the appellant that a contractual obligation has been cast on the parties to the document mutually among themselves and the recitals or stipulations in this regard contained in the partition deed Ex.A.1 have to be so construed as to exclude for enforcement of the right given to the sharers, even their heirs or, at any rate, the family members and instead it should be confined to only the parties to the transaction the original sharers, parties to the transaction evidenced by Ex.A.1.