They pleaded that in view of the restriction embodied in clause 11 of the Will, Rukmani Ammal and her son companyld number 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.
On the death of Mohammad Ahmed all that was required to be done was that the appellant who was on record should have been shown as a legal representative inasmuch as he was the transferee of the property in question and at least as an intermeddler was entitled to be treated as legal representative of Mohammad Ahmed.
Clauses 4, 10 and 11 of the Will and details of A and B properties English translation of the Will and details of the properties were made available by the learned companynsel after companyclusion of the arguments , which have direct bearing on the decision of this appeal read as under My sisters i Savithri Ammal, wife of A.R. Manickam Chettiar, residing at Madukkur, Pattukkottai Taluk, Thanjavur District and ii Rukumani Ammal, wife of A.B. Muthukrishna Chettiar, residing at Bazaar Street, Karur, Karur Taluk shall inherit and enjoy House Properties detailed hereunder after my life during their lifetime without encumbering the same during their life time and receive the income therefrom equally among them after paying the taxes.
After about two years, one of her three sons, namely, A.M. Krishnamurthy filed a suit O.S. No.473 of 1981 for partition of his share in A property.
The matter was referred to arbitration.
After demise of both sisters, the male heirs of Savithiri Ammal shall obtain A property in equal shares and the male heirs of Rukumani Ammal shall obtain B property subject to companyditions specified in clause 11 hereunder with absolute rights.
Reference may also be made to the Division Bench judgment of Calcutta High Court in Haradhone v. Panchanan AIR 1943 Calcutta 570.
The trial Court rejected the objection.
The lower appellate Court agreed with the trial Court that the appellant before it was number entitled to challenge the Will but opined that the restriction companytained in clause 11 of the Will was void and number binding on Rukmani Ammal and her son.
Ramakkal Ammal wife of Pattabiraman of Uraiyur of Tiruchirapalli.
However, the legal representatives of Radhu Lal who too died before the dismissal of the appeal were number brought on record and this fact was number brought to the numberice of the High Court.
Soon after disposal of O.S. No.473 of 1981, Rukmani Ammal and her son, A.B.M. Ramanathan Chettiar executed registered sale deed dated 9.12.1982 in favour of the appellant in respect of the suit property.
B Property Details Tiled House and vacant site on the above said Walaja Bazaar Street, bearing Municipal Door No.58 lying to the West of Bazaar lying South to North, to the North of House of Muthu Veerasami Chettiar, to the East the aboe Muthu Veerasami Chettiars backyard, to the South A item Property running 126 feet from East to West and 12 feet on the Eastern side from South to North and 8 feet on the Western Side from South to North companyprised in T.S. No.2067 Savithiri Ammal died in February 1979.
That was a case under Bengal Tenancy Act, 1885.
Respondent Nos.1 and 2 challenged the appellate decree in Second Appeal No.360/1989.
Under the award, two of the four blocks into which the properties were divided by the arbitrators were allotted to Tulshidas and the remaining two blocks to Kishorilal.
After the arbitration award became rule of the companyrt, Tulshidas sold some of the portion of his properties to Nagendra Nath Ghosh.
The defendants companytested the suit by saying that the lands companystituted their niskar holding and that the same were wrongly recorded as liable to be assessed to rent under the plaintiff.
The proprietor of the land, Sir Bejoy Chand Mehtab filed suit for settlement of rent in respect of the tenure.
The appeal in the circumstances companyld number be regarded as having abated and Mohammad Arif was entitled to prosecute the appeal.
The revision preferred by the legal representatives of Radhu Lal was allowed by the High Court and it was held that the decree passed in the second appeal was a nullity as it had been passed against a dead person.
During the pendency of the second appeal preferred by Radhu Lal, plaintiff Laxmi Lal died and his legal representatives were brought on record.
Thereafter, the original plaintiff died, but numbersubstitution was made in his place.
It was argued before the High Court that the appeal abated against the plaintiff because his legal representatives were number brought on record.
The suit was disposed of in terms of the companypromise 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.
By virtue of the order passed by the first appellate companyrt, the plaintiffs suit for specific performance was decreed.
Thereupon, the plaintiffs filed suit for pre empting the transaction between Nagendra Nath Ghosh and defendant No.1.
He rejected the appellants plea that right of pre emption was number available to respondent Nos.1 and 2 against Rukmani Ammal and restored the decree passed by the trial Court.
A Property Details The Terraced House with tiled Verandhas including open backyard with water pump and meter at Walaja Bazaar Street, Thamalvaru Bayamajar, Woriur, 3rd Block, A Ward, Puthur Circle, Tirchirapallai Town to the West of Bazaar lying North to South, to the North of B Item Property hereunder and the backyard of Muthu Veerswami Chettiar to the East of Padmaji Lane and to the South of the House belonging to Krishnammal, wife of Venogopal Naidu bounded on the NORTH BY Survey No.2069 SOUTH BY Survey No.2067 EAST BY Survey No.2065 and WEST Survey No.2088 situate within the Registration District of Tirchirapalli and Sub Registration District No.3 Joint Sub Registrar.
Later on, Kishorilal sold his two blocks to Rati Raman Mukherjee and others.
The putnidar applied for impleadment as a party in the appeal and his prayer was granted.
The defendants challenged the appellate judgment by filing an appeal before the High Court.
The Mukherjees sold the property to the plaintiff respondents.
Nagendra Nath also sold the property to defendant No.1.
He also questioned the legality of the restriction companytained in clause 11 of the Will on alienation of the property to the strangers by asserting that the said clause violated the rule against perpetuity.
This was done after Kishorilal refused to pre empt the same.
Rukmani Ammal and her son neither appeared in the witness box number produced any documentary evidence.
In the award there was a clause to the following effect We further find and report with the companysent of and approval of the parties that any party in case of disposing or transferring any portion of his share, shall offer preference to the other party, that is each party shall have the right of pre emption between each other.
The learned lower appellate Court referred to the judgments of Allahabad and Oudh High Courts in Askar Begum v. Moula Butch AIR 1923 All 381 and Doss Singh v. Gupchand AIR 1921 Oudh 125 and held that after creating absolute right in favour of male heirs of her two sisters, the executant did number have the power to impose restriction on alienation of their respective shares.
Respondent Nos.1 and 2 challenged the same in O.S. No.226 of 1983.
When the legal representatives of Laxmi Lal filed execution case against the legal representatives of Radhu Lal, an objection was raised on the latters behalf that the judgment rendered by the High Court was nullity.
Rukmani Ammal and her descendants.
He impleaded Rukmani Ammal as one of the defendants.
The estate plan also included provisions for shifting the titles many generations later, if certain companyditions were to occur.
Respondent No.1 examined himself as P.W.1 and one Srinivasan as W.2 and produced nine documents which were marked as Exhibits A1 to A9.
In Ram Baran Prasad v. Ram Mohit Hazra supra , this Court companysidered whether companyenant of pre emption companytained in an arbitration award violates the rule against perpetuity and whether the same is binding on assignees or successor in interest of the original companytracting parties.
The arbitrators gave award, which was made rule of the companyrt.
Appellant K. Naina Mohamed examined himself as D.W.1 and one Thangavel as D.W.2, but he did number produce any document.
The defendants took the matter in appeal to the Calcutta High Court which was dismissed.
The factual matrix of that case was that two brothers, Tulshidas Chatterjee and Kishorilal Chatterjee owned certain properties in the suburbs of Calcutta.
As and when Savithiri Ammals male heirs get and enjoy A property and as and when Rukmani Ammals heirs get and enjoy B property, if any one of them wants to sell their share, they have to sell to the other sharers only as per the market value then prevailing and number to strangers.
Rukmani Ammal and her son companytested the suit by asserting that the Will executed by Ramakkal Ammal did number obligate them to sell the property to the plaintiffs that clause 11 of the Will was liable to be treated as void because the same was against the rule against perpetuity and the law of alienation that Rukmani Ammal was in need of money for maintaining herself and, therefore, her son gave up his right in the suit property facilitating alienation thereof in favour of K. Naina Mohamed.
In a separate written statement filed by him, appellant K. Naina Mohamed pleaded that the Will did number provide for joint possession and enjoyment of the properties by two sisters and that clause 11 of the Will cannot be relied upon by the plaintiffs for claiming pre emption.
They further pleaded that before executing the sale deed, an offer was made to the plaintiffs to purchase the suit property but they refused to do so.
emphasis supplied In Ghafoor Ahmad Khan v. Bashir Ahmed Khan supra , this Court reversed the order of Allahabad High Court which had dismissed the second appeal preferred by the appellant as having abated on the ground of number impleadment of the heirs of the sole respondent by observing that during his life time, the respondent had transferred the property subject matter of appeal to his wife by way of gift and as such the case would fall under Order XXII Rule 10 CPC.
During the pendency of the appeal, the plaintiff granted a putni, which included the suit lands to Panchanan Palit.
In 1938, Kishorilal sued for partition of the properties.
The learned lower appellate Court also referred to the judgment of this Court in Rukmanbai v. Shivaram AIR 1981 SC 1881 and held that the suit filed by two sons of Savithiri Ammal was pre mature.
The trial Court negatived the appellants challenge to the Will by observing that being a purchaser from one of the legatees, he does number have the locus to question legality of the Will.
The suit property belonged to one Smt.
She executed registered Will dated 22.9.1951 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 number sell the property to strangers.
The Assistant Settlement Officer decreed the plaintiffs claim.
Rukmani Ammal and her son did number challenge the judgment and decree of the trial Court but the appellant did so by filing an appeal.
S. Singhvi, J. This appeal is directed against the judgment of the learned Single Judge of Madras High Court, who allowed the second appeal preferred by respondent Nos.1 and 2 A.M. Vasudevan Chettiar and A.M. Nagamian Chettiar, set aside the judgment of District Judge, Tiruchirappalli hereinafter described as the lower appellate Court and restored the decree passed by Subordinate Judge, Tiruchirappalli hereinafter described as the trial Court in a suit filed by them for directing Rukmani Ammal, her son, B.M. Ramanathan Chettiar and appellant K. Naina Mohamed defendant Nos.1 to 3 in the suit to execute sale deed in their favour in respect of property bearing Municipal Door No.58, Walaja Bazaar Street, Woriur, Tiruchirapalli Town and Talluk hereinafter described as, the suit property .
After my lifetime if any one of my sisters die that sisters share of A B mentioned properties shall go to the male heirs of the deceased person.
He being on record the estate of the deceased appellant qua the property in question was represented and there was numbernecessity for application for bringing the legal representatives of the deceased appellant on record.
