2010 Supreme(SC) 539

Supreme Court of India
THE HONOURABLE MR. JUSTICE G.S. SINGHVI & THE HONOURABLE MR. JUSTICE ASOK KUMAR GANGULY
K. Naina Mohamed (Dead) through L.Rs.
Versus
A.M. Vasudevan Chettiar (Dead) through L.Rs. & Others
CIVIL APPEAL NO. 8365 OF 2002
Decided on : 07-07-2010

Headnote:(a) Code of Civil Procedure, 1908 – Section 100 r/w Order XXII – Issue the of abatement of suit for not bringing on record the fact of death of Rukmani Ammal and her son A.B.M. Ramanathan Chettiar raised for the first time before Supreme Court – Not permissible. (Para 13)

       (b) Code of Civil Procedure, 1908 – Section 2(11) – Purchaser of a property becomes deemed representative of deceased seller – Suit does not abate. (Para 15)

       AIR 1982 SC 948; AIR 1983 SC 123 – Relied upon

       AIR 1943 Calcutta 570 – Cited with approval

       AIR 1962 SC 89; AIR 1983 SC 676; (1997) 11 SCC 570; (2001) 5 SCC 570; AIR 1930 Lahore 651 – Distinguished

       (c) Indian Succession Act, 1925 – Section 114 – Clause 11 of the Will prohibiting alienation of property to strangers – Male heirs of the two female owners not questioning conditional conferment upon them of title of the properties – Therefore, the appellant-purchaser of `B’ property in violation of clause 11 cannot contend that restriction contained in clause 11 of the Will should be treated as void because it violates the rule against perpetuity. (Para 20)

       AIR 1967 SC 744; (1997) 10 SCC 309; AIR 1932 PC 158; AIR 1958 SC 838; AIR 1979 SC 1066 – Relied upon

       1875 M. 75 – Referred

       ILR 7 Allahabad 775 – Cited with approval

       (d) Indian Succession Act, 1925 – Section 114 – Testator giving life interest to her sisters debarring them from alienating the property – Not giving absolute right –Male heirs of these sisters given absolute rights but barred from alienating to strangers – Perfectly valid – Not violating rule against perpetuity. (Para 25)

       Facts of the case:

       The suit property belonged to one Smt. Ramakkal Ammal. She executed registered Will in respect of her properties and created life interest in favour of her two sisters, namely, Savithiri Ammal and Rukmani Ammal with a stipulation that after their death their male heirs will acquire absolute right in `A’ and `B’ properties respectively subject to the rider that they shall not sell the property to strangers.

       After about two years of death of Savithiri Ammal, one of her three sons, namely, A.M. Krishnamurthy filed a suit for partition of his share in `A’ property. He impleaded Rukmani Ammal as one of the defendants. The suit was disposed of in terms of the compromise arrived at between the parties, which envisaged that the plaintiff therein and his brothers will divide `A’ property among themselves and `B’ property will be the absolute property of Smt. Rukmani Ammal and her descendants.

       Soon after disposal of O.S., Rukmani Ammal and her son, A.B.M. Ramanathan Chettiar executed registered sale deed in favour of the appellant in respect of the suit property. Respondent Nos.1 and 2 challenged the same in O.S.. They pleaded that in view of the restriction embodied in clause 11 of the Will, Ramakkal Ammal and her son could not have sold the property to a stranger. They prayed that the sale deed be declared void and defendants in the suit be directed to execute sale deed in their favour.

       The trial Court negatived the appellant’s challenge to the Will and held that clause 11 is valid and binding on the legatees and it does not violate the rule against perpetuity. The trial Court further held that K. Naina Mohamed had purchased the property with notice of the clause relating to pre-emption and as such he is bound by the same.

       Rukmani Ammal and her son did not challenge the judgment and decree of the trial Court but the appellant did so by filing an appeal. The lower appellate Court agreed with the trial Court that the appellant before it was not entitled to challenge the Will but opined that the restriction contained in clause 11 of the Will was void and not binding on Rukmani Ammal and her son.

       Respondent Nos.1 and 2 challenged the appellate decree in Second Appeal before the High Court.

       The Single Judge held that the restriction contained therein does not violate the rule against perpetuity. He rejected the appellants’ plea that right of pre-emption was not available to respondent Nos.1 and 2 against Rukmani Ammal and restored the decree passed by the trial Court.

       Finding of the Court:

       Purchaser of a property becomes deemed representative of deceased seller. Suit does not abate.

       Giving absolute rights to male heirs but prohibiting them from alienating to strangers is perfectly valid and not against rule against perpetuity.

       Result:

       Appeal dismissed.