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IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
Yogavalli (deceased) & Others - Appellant
Versus
Elumalai & Others - Respondent
S.A. No. 1312 of 2008
Decided On : 18-03-2021
Succession Act, 1925 – Section 114 – Code of Civil Procedure, 1908 – Section 100 – Suit for declaration and permanent injunction – Case of the plaintiff, in brief, is that the property described in the plaint "A" schedule is the absolute property of the plaintiff's mother, who after bequeathing the plaint "B" schedule property in favour of her daughter-in-law in 1963, released her right in respect of the remaining part of the plaint "A" schedule property in favour of the plaintiff and the defendants wife by way of a registered deed of release and prior to the abovesaid release deed, Jayalakshmi settled the entire plaint "A" schedule property in favour of the plaintiff and the defendants wife by way of a settlement deed rescinding the settlement in favour of her daughter-in-law and in O.S., on the file of the Subordinate Court, it was held that Rajeswari cannot be questioned by the latter and the plaintiff and her sister Navamani, the settlees under the settlement deed, were inducted into the possession of the their respective shares excluding the portion in the occupation of Rajeswari and they came to own and possess the "C" and "D" schedule properties, as a result of the release deed executed by Jayalakshmi in favour of the plaintiff and her sister Navamani and in the settlement deed, it was specifically stated by Jayalakshmi that the settlees in case of alienating their shares should offer their shares to other settlee and the settlees should not dispose of their shares in any other manner. – The plaintiff's sister Navamani died leaving behind the defendants as her legal heirs and the first defendant is endeavouring to alienate the properties got by Navamani ammal as above stated without even following the procedures laid down under the settlement deed and therefore, according to the plaintiff, since she has got a right to purchase the property mentioned in the "D" schedule by way of the preemption and as the first defendant is endeavouring to alienate the same to the third parties, according to the plaintiff, she has been necessitated to lay the suit for appropriate reliefs.
Finding of court: When the right of preemption available to the plaintiff qua the plaint "D" schedule property by virtue of Ex.A1 settlement deed, not being a permanent clog or violative of the rule against perpetuity, in the light of the decisions of the apex Court referred to supra, the reasonings of the first appellate Court for non suiting the plaintiff are liable to be set aside and it has to be held that the condition of the first offer of sale to the other settlee as stipulated in Ex.A1 settlement is binding upon the settlees as well as their legal heirs and the right of preemption will not get abrogated after the death of one parties to the settlement deed and by virtue of right of preemption, the other party is not prevented from alienating her share forever and the right of preemption is not a permanent clog against the alienation and also not in violation of the rule against perpetuity and the right of preemption is a right in rem and accordingly, the substantial questions of law formulated in the second appeal are answered in favour of the plaintiff and against the defendants. – Judgment and Decree passed in A.S. on the file of the Additional District Judge, Fast Track Court, are reversed and resultantly, the Judgment and Decree passed in O.S. on the file of the District Munsif Court, are confirmed.
Result: Second Appeal Allowed
JUDGMENT :
(Prayer: Second Appeal has been filed under Section 100 of CPC against the Judgment and Decree dated 31.07.2007 passed in A.S.No.54 of 2006 on the file of the Additional District Judge, Fast Track Court No.2, Ranipet, reversing the Judgment and Decree dated 28.02.2005 passed in O.S.No.391 of 1987 on the file of the District Munsif Court, Arakkonam.)
1. Challenge in this second appeal is made to the Judgment and Decree dated 31.07.2007 passed in A.S.No.54 of 2006 on the file of the Additional District Judge, Fast Track Court No.2, Ranipet, reversing the Judgment and Decree dated 28.02.2005 passed in O.S.No.391 of 1987 on the file of the District Munsif Court, Arakkonam.
2. For the sake of convenience, the parties are referred to as per their rankings in the trial Court.
3. The plaintiff in O.S.No.391 of 1987 is the appellant in the second appeal.
4. Suit for declaration and permanent injunction.
5. The case of the plaintiff, in brief, is that the property described in the plaint "A" schedule is the absolute property of the plaintiff's mother Jayalakshmi ammal, who after bequeathing the plaint "B" schedule property in favour of her daughter-in-law by name Rajeswari ammal in 1963, released her right in respect of the remaining part of the plaint "A" schedule property in favour of the plaintiff and the defendants wife by name Navamani by way of a registered deed of release dated 19.11.1976 and prior to the abovesaid release deed, Jayalakshmi settled the entire plaint "A" schedule property in favour of the plaintiff and the defendants wife Navamani by way of a settlement deed dated 19.01.972 rescinding the settlement in favour of her daughter-in-law and in O.S.No.16 of 1965, on the file of the Subordinate Court, Vellore, it was held that Rajeswari cannot be questioned by the latter and the plaintiff and her sister Navamani, the settlees under the settlement deed dated 19.01.1972, were inducted into the possession of the their respective shares excluding the portion in the occupation of Rajeswari and they came to own and possess the "C" and "D" schedule properties, as a result of the release deed dated 19.11.1976 executed by Jayalakshmi in favour of the plaintiff and her sister Navamani and in the settlement deed dated 19.01.1972, it was specifically stated by Jayalakshmi that the settlees in case of alienating their shares should offer their shares to other settlee and the settlees should not dispose of their shares in any other manner. The plaintiff's sister Navamani died leaving behind the defendants as her legal heirs and the first defendant is endeavouring to alienate the properties got by Navamani ammal as above stated without even following the procedures laid down under the settlement deed and therefore, according to the plaintiff, since she has got a right to purchase the property mentioned in the "D" schedule by way of the preemption and as the first defendant is endeavouring to alienate the same to the third parties, according to the plaintiff, she has been necessitated to lay the suit for appropriate reliefs.
6. The defendants resisted the plaintiff's suit contending that the plaintiff's suit is not maintainable either in law or on facts and admitted that as per the registered release deed dated 19.11.1976 in favour of the plaintiff and Navamani, they had acquired right in the property mentioned therein and according to them, the settlement deed dated 19.01.1972 is not acted upon and further, put forth the case that the abovesaid settlement deed was cancelled by Jayalakshmi ammal by way of a deed dated 15.10.1975 and the plaint "D" schedule property had been already disposed of and therefore, there is no cause of action for the suit and the plaintiff is not entitled to secure the reliefs prayed for and as per the release deed dated 19.11.1976, both the plaintiff and Navamani acquired absolute right to the properties released in their favour and accordingly, the defendants sold the property to one Gopal by way of the
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