The main legal point established in the judgment is the validity of the preemption clause in the partition deed and the impact of fraudulent actions on the limitation of the suit.

P. Shanniugam, J.

1. Plaintiff is the appellant. The suit was filed for a decree of possession of the plaint, schedule property by way of preemption and for redemption of the mortgage. On dismissal of the suit, the above appeal is filed.

2. The facts of the case are stated hereunder. The parties are described as per their rankings before the Subcourt. For better appreciation, the genealogy of the parties is given below :

3. The suit property, an extent of 20 cents of land and building bearing M.C. No.515 comprised in Old Survey Number 1679/2740 belonged to the family of the plaintiff and defendants 2 to 4. Defendants 2, 3 and 4 are brothers. Their father, Late Sivadanu Chettiar and the plaintiff Ramasubbu Chettiar are brothers. The plaintiff, and his three brothers namely Sivadanu Chettiar, Easwaramurthy Chettiar and Krishnappa Chettiar have entered into a family partition, Ex.A.l deed dated 25.3.1953. As per this partition deed, the plaintiff was allotted the 'B' schedule properties, defendants 2 to 4 were allotted the 'D' schedule properties. The suit property is Item 54 in the 'D' schedule property. The said 'B' and 'D' items made up of 20 cents of land, building and gate portion within 20 cents. The plaintiff has been allotted a share in between the portions allotted to defendants 2 to 4. The plaint schedule property consists of portions of gate and portion of the building which lie on both sides of the plaintiffs share. In other words, the share of defendants 2 to 4 is not a single, separate plot or building. Therefore, the partition deed provided that if it was found necessary to sell either of these 'B' or 'D' schedule properties allotted to the plaintiff or defendants 2 to 4 to third parties, they must offer the same to the respective parties or their heirs. It is further found in the partition deed that Item 1 of the 'B' schedule and Item 54 of the 'D' schedule are now in the hands of the tenants and already proceedings were initiated under the Rent Control Act and the first party in the partition deed namely Easwaramurthy Chettiar had to continue the proceedings.

4. According to the plaintiff, he was already and willing to purchase Item 54 of the 'D' schedule property as per the condition stipulated in the partition deed. However, without the knowledge of the plaintiff, defendants 2 to 4 had entered into an agreement to sell the plaint schedule property to the first defendant in collusion with an ulterior motive to deprive the plaintiffs right of preemption. He learnt that the second defendant had executed a fraudulent and invalid sale deed in favour of the first defendant in secrecy with a view to defeat the right of the plaintiff. The plaintiff came to know of the alleged agreement and the void sale deed only on 4.10.1980 when the Commissioner visited the property as per the ex parte decree obtained in O.S. No.43 of 1978. Immediately thereafter, the plaintiff filed an application to set aside the ex parte decree on 4.10.1980 and the said decree was set aside and the said order was confirmed by the Honourable Supreme Court. It is further averred that the schedule property in the said suit had been described in such a manner so as to deprive the plaintiff his due share as per the partition deed. The plaintiff further came to know that the sale consideration was Rs.90,000 made up of the mortgage amount of Rs.21,000. The plaintiff states that he is prepared and is ready and willing to pay the amount and purchase the share of defendants 2 to 4 and is also prepared to clear off the mortgage outstanding. Hence the above suit.

5. The first defendant, purchaser of the suit property, in his amended written statement, denied all the allegations. According to him, the suit property is distinct from the property allotted under the 'B' schedule; the clause of preemption in the partition deed is void, invalid and opposed to public policy; the said clause is repugnant to the principles of the Transfer of Property Act a