The court clarified that a will's condition restraining alienation does not apply to the legal representatives of the testator and that a right of preemption under the Hindu Succession Act is only applicable to a proposed transfer, not a concluded one.

JUDGMENT :

Sanjay K. Agrawal, J.

1. Invoking the appellate jurisdiction of this Court under Section 96 of the Code of Civil Procedure, 1908, the two appellants herein (defendants No.1 & 2) have filed this appeal calling in question legality, validity and correctness of judgment & decree dated 29-1-2024 passed by the 10^th Additional District Judge, Bilaspur in Civil Suit No.133A/2021, by which the trial Court has decreed the suit filed by respondent No.1 herein/plaintiff granting declaration of title declaring that the plaintiff is title holder and also possession holder of Sheet No.12 (presently Sheet No.31), area 412.6 sq.ft., and sale deed dated 5-7-2021 (Ex.P-12) executed by defendant No.1 in favour of defendant No.2 is null and void and the defendants are restrained from interfering with the peaceful possession of the plaintiff.

(For the sake of convenience, parties hereinafter will be referred as per their status shown and ranking given in the suit before the trial Court.)

2. Following genealogical tree will demonstrate the relationship among the parties:-

Plaint Averments

3. The suit land bearing Abadi Land Sheet No.12 (new number 31), 59.13/249240, total 826 sq.ft., was owned by Late Shri Nathulal Gupta and the said land is referred as suit land in the plaint. Nathulal Gupta died on 22-12-2003 leaving behind his son Mulchand Gupta and daughter Geeta Bai Gupta/plaintiff. He bequeathed his suit property by Will dated 17-6-2003 (Ex.P-8) equally to his son & daughter as shown in the map attached with the Will. Execution and attestation of Will is admitted by the plaintiff and the defendants and there is no dispute between them about execution and attestation of Will. The Will Ex.P-8 contains a stipulation that (1) Mulchand (now deceased) – son of Nathulal Gupta, (2) Geeta Bai Gupta – daughter of Nathulal Gupta i.e. the plaintiff, (3) Omprakash Gupta (now deceased) – husband of Geeta Bai Gupta i.e. son-in-law of Nathulal Gupta, (4) Pradeep – son of Geeta Bai Gupta, and (5) Gopal – son of Geeta Bai Gupta, all five persons, will have no right to alienate the suit property in future. Mulchand Gupta died issue-less on 8-5-2014 (Ex.P-9) and thereafter, his wife Mohani Bai Gupta – defendant No.1, shifted to her parental house at Pendra-Bilaspur and thereafter, dispute arose with regard to the property held by him leading to filing of suit by the plaintiff (Geeta Bai Gupta) for declaration of title with regard to the portion held by her brother Mulchand Gupta i.e. 412.6 sq.ft. since Mulchand Gupta & defendant No.1 both were issue-less and therefore in his lifetime, Mulchand Gupta had given his share of land in the suit property to the sons of the plaintiff namely, Pradeep & Gopal and thus, the plaintiff is in exclusive possession of the suit land and wife of Mulchand had left to Pendra delivering the possession of the suit property to the plaintiff. After death of Mulchand Gupta, defendant No.1 has no right over the suit property in terms of Will dated 17-6-2003 (Ex.P-8), however, before the date of filing plaint, 412.6 sq.ft. of land was sold to defendant No.2 by sale deed dated 5-7-2021 (Ex.P-12) executed by defendant No.1 for which defendant No.1 has no title over the suit property, therefore, the plaintiff be declared title holder and possession holder of the portion of the land held by her brother Mulchand Gupta and sale deed dated 5-7-2021 (Ex.P- 12) be declared null and void and the defendants be restrained from interfering with the possession of the suit property.

Written Statement

4. Defendants No.1 & 2 have jointly filed written statement stating inter alia that the suit property was held by Mulchand Gupta, husband of defendant No.1, which was given by her father-in-law Nathulal Gupta vide Ex.