T GNANASELVAM Vs. K RAJAMMA AND DEVAKI AMMA

JUDGEMENT

(1.) THE second defendant in the suit is the appellant in the Second Appeal. THE first respondent herein filed suit O.S. No. 522/80 before the Additional District Munsif, Kuzhithurai, for declaration of her right of pre-emption against the second respondent herein and the appellant.

(2.) HER case as set out in the plaint was as follows: The respondents were sisters and children of one Kumara Pillai Raman Pillai. They had another sister by name Krishnamma and brother by name Bhaskaran Nair. The suit property belonged to their father Raman Pillai. There was a residential building in the suit property constructed by the father, where the family resided. The father executed a settlement deed in the year 1951 under the original of ExA-1, conveying the suit property in favour of all the children including the respondents herein. As per the terms of the settlement deed, the suit property was divided into four plots, east-west and the easternmost was allotted in favour of the second respondent. The next western plot and the residential building were allotted in her favour, the next adjacent western plot in favour of Bhaskaran Nair and the Westernmost plot in favour of Krishnamma. There was a provision in the deed that the donees should not alienate their respective plots to strangers and if at all they intended to do so, the other allottees were given the right to purchase. As the transaction was a family settlement, the clause was valid in law and binding on all the donees under the settlement deed. Moreover, the donees who had accepted the gift were bound to receive and give effect to the said intention of the donors. Any alienation made by any of them in violation of the said provision was invalid in law and the same was liable to be set aside at the option of the others who were also entitled to exercise the right of pre-emption. Bhaskarapillai, one of the brothers of the first respondent, and the second respondent intended to sell his share and the first respondent purchased the same in 1974 in the name of her husband. Their sister Krishnamma likewise sold away a portion of her share in favour of Bhaskara Pillai and the remaining extent in favour of the first respondent. The said alienations were made in conformity with the directions in the settlement deed. The first respondent learnt that the second respondent had in violation of the said provisions in the gift deed executed a sale of her portion in 1980 in favour of the appellant. The said sale included another property also and the total sale consideration was Rs. 7000/-. The proportionate sale consideration for the second respondent's share in the suit property came to Rs. 4500/-. The said calculation was made taking into account the total extent sold for Rs. 7000/-. The amount of sale consideration was also inclusive of mortgage amount. The portion sold away by the second respondent contained a well left for the use of the residential building. Hence, the building situate in the plot of the first respondent could not be conveniently enjoyed without the well in the plot alienated by the second respondent. The first respondent was ready and willing to purchase the plot of the second respondent if only she had made the offer. But, the second respondent had not even informed the first respondent and executed the sale deed in favour of the appellant. The first respondent came to know about the sale only on 15.9.1980. The sale by the second respondent in favour of the appellant, an utter stranger to the family, was a voidable one as it was concluded against the express provisions of restraint on alienation provided in the settlement deed. The appellant had in law the right to get the sale deed set aside and substitute herself in the place of the appellant on payment of the proportionate sale consideration of Rs. 4500/- less the mortgage amount. As the appellant was not prepared to execute the sale deed in favour of the first respondent, the suit had to be filed.

(3.) THE first respondent filed appeal A.S. No. 78/83 before the Subordinate Judge, Kuzhithurai. THE learned Subordinate Judge by his judgment and decree dated 24.2.1984 reversed the decision of the trial Court holding as follows: Ex. A-1 was a settlement deed at least regarding the extent in the suit survey number. Ex. A-1 was a registered instrument and a casual check of the prior encumbrance by the appellant would have revealed the existence of a clause for pre-emption and hence the first respondent was entitled to the right of pre-emption against the appellant, who was the owner of the property pursuant to his purchase from the second respondent. THE clause in Ex. A-1 restraining partial alienation had been waived by the parties in entering into Ex. B.1 partition; THE extent conveyed was 20.875 cents in the suit survey number and according to the first respondent, proportionate consideration on calculation came to Rs. 4500/- which she was prepared to pay, Ex. A-2 sale was valid only regarding an extent of 9 cents and regarding the remaining extent, the appellant's vendor has no title. THE appellant was therefore entitled to a decree for pre-emption on deposit of Rs. 4500/- and consequently allowed the appeal and decreed the suit as prayed for with costs.