Extinguishment of right by waiver.

The plaintiffs are the appellants. They filed the suit for declaration of their pre-emption right and for recovery of possession of the plaint properties. The averments in the plaint are as follows - The plaintiffs are brothers and the second defendant is their sister. One Valliammal is the mother of the plaintiffs and the second defendant. The family owned considerable properties and a written partition took place on 17-2-1960. The sharers agreed therein that even after the partition, the sharers should not sell their shares to outsiders and a condition was laid in the partition deed that in the event of any alienation by any of the sharers, preference should be given to the other sharers to purchase the same.

2. The mother of the plaintiffs and the second defendant, viz, Valliammal was allotted certain properties in the partition deed and she has gifted her share of the properties to her only daughter, the second defendant herein, under a deed dt. 14-9-1972. Now, it transpires that the second defendant had sold one of the items settled under the gift deed to the first defendant under a sale deed dated 22-11-1975 for a consideration of Rs. 53,000, without the knowledge of the plaintiffs. No offer was made by the second defendant to the plaintiffs or to any other sharer calling upon them to purchase the same. The purchaser-first defendant was also aware of the right of pre-emption and therefore he is not a bona fide purchaser. The plaintiffs have therefore filed the suit for declaration of their right of pre-emption and to direct the first defendant to deliver the plaint property to the plaintiffs on receiving Rs. 33,000.

3. The first defendant - purchaser filed a written statement as follows :- The gift by the second defendant's mother in favour of the second defendant was absolute and unconditional. The gift deed dated 14-9-1972 in favour of the second defendant was attested by the plaintiffs themselves. This defendant was not aware of the right of pre-emption and he is a bona fide purchaser for value. He has since made lot of improvements and therefore the sale deed in his favour must be upheld.

4. The second defendant-vendor filed a written statement contending that she was not a party to the partition deed and there was no condition in the gift deed about the alleged right of pre-emption. The sale in favour of the first defendant is true and valid and there was no fraud. Assuming that there was a right of pre-emption at one time, the plaintiffs have waived their right by their own conduct.

5. The learned Subordinate Judge framed issues, recorded evidence and found that the plaintiffs have no right of pre-emption and that they have lost their right by estoppel. Consequently, the suit was dismissed with costs. The aggrieved plaintiffs have come on appeal.

6. Ex. A. 1 dt. 17-2-1960 is the registered copy of the partition deed in the family of the plaintiffs. Twelve sharers of the family entered into this partition deed and each of them was allotted certain items, about which there is no dispute. The relevant portion of the document is with reference to the right of pre-emption. It is recited in Ex. A. 1, that though the sharers are given absolute right in respect of their shares, since the family was an ancient and reputed one in that locality, they decided that the properties should not go to strangers, and that if there was any need for alienation, the sharers must give the first preference to the members of the family. It is mentioned therein that the intending seller should inform the other sharers in writing and ascertain their wishes. There is no dispute about this pre-emption clause, which is plain on the face of the document, Ex. A. 1.

7. About twelve years after this partition deed, Valliammal (one of the sharers) gifted her share of the properties to her only daughter, the second defendant herein, under the document, Ex. A. 2, dt. 14-9-1972 (same as Ex.B. 1). Under this gift deed, Valliammal gave absolute rig