VISVANATHAN CHETTY Vs. SETHIRAJULU CHETTY

JUDGEMENT

(1.) This (C.S. No. 20 of 1921) is a suit by the plaintiff for the enforcement of pre-emption alleged to be conferred on him by two deeds of mortgage dated 27 November, 1915 for Rs. 2,500 and 25 April, 1914 for Rs. 3,000 executed by the 1 defendant in favour of the plaintiff who was then a minor and represented by his father and natural guardian, Kumaraswami Chetti. The 2nd and 3 defendants are impleaded as alienees of the mortgaged property with notice. The case for the plaintiff is that the 1 defendant executed the two deeds of mortgage in favour of the plaintiff, then a minor, that the first deed of mortgage contained the following covenant : "that the mortgagor will, not, during the continuance of the security, in any way or manner deal with the scheduled property or any portion thereof either by way of sale, mortgage, charge, lease or otherwise without obtaining the previous consent in writing of the mortgagee permitting and authorising the morgtagor to do so and that the mortgagee shall have the right of pre-emption in respect of the scheduled property." The second deed of mortgage stated that all the terms and conditions of the first mortgage should, mutatis mutandis, be treated as applicable to the said deed. The plaintiff states that by reason of these two clauses he is entitled to a right of pre-emption in respect of the property, "that the plaintiff has recently come to know that on the 9 April, 1918 the 1 defendant sold to P.S.N. Muruganathan Chetti the property mentioned in the schedule hereto for a consideration of Rs. 3,025 in cash and the purchaser covenanted to pay to the plaintiff the amount due on the deeds of mortgage and the further charge above referred to and that the said P.S.N. Muruganathan Chetti by a deed of sale dated the 3 July, 1919 sold the said house and ground together with another property to the 2nd and 3 defendants herein. The 2nd and 3rd defendants sent a notice dated the 3 May, 1920 through their Vakils, Messrs Madhavan and Rangaiya, to the plaintiff in which they informed him of the fact of the purchase and offered to redeem the mortgage and the further charge. On the 5 July, 1920 the plaintiff through his vakils sent a reply to the said letter in which he inter alia pointed out to the 2nd and 3rd defendants that he had a right of pre-emption in respect of the said property, that the transfers of the said property by the 1 defendant to P.S.N. Muruganathan Chetti and by the said Muruganathan Chetti in favour of 2nd and 3 defendants had been effected without the plaintiff's knowledge or consent and that the plaintiff was entitled to enforce his right of pre- emption against 2nd and 3 defendants. The plaintiff tendered with the said letter a sum of Rs. 3,025 and called upon the 2nd and 3 defendants to execute a conveyance in favour of the plaintiff but 2nd and 3 defendants refused to receive the said sum and failed and neglected to execute the conveyance." The plaintiff therefore prays that the defendants or such of them as the Court may find liable be directed to execute a conveyance in favour of the plaintiff of the property described in the schedule on payment of Rs. 3,025 or such other sum as the Court may find payable by the plaintiff.

(2.) The first defendant filed a written statement in which he pleads that the sale by him to Muruganathan Chetti was subject to the covenants in the two deeds of mortgage and that the sale to the 2nd and 3 defendants by Muruganathan Chetti was a sham and colorable transaction. He says that there is no cause of action against him and that he is an unnecessary party to the suit.

(3.) The 2nd and 3 defendants raise various pleas. They state that the agreement contained in the two deeds of mortgage is void and unenforceable as being a clog on the equity of redemption, Chat it is also not enforceable because of plaintiff's minority at the date of the mortgages and that opportunity was given by the 1 defendant to the plaintiff's guardian to purchase the property but that the offer was refused, that the claim is barred by limitation, that, in any event, the option to purchase not being exercised before the period for redemption expired, it ceased to have any legal effect and is not enforceable. He says he is willing to redeem the property and that the tender of Rs. 3025 was not a valid tender.