Civil Appeal No. 8365 Of 2002. Case: K. Naina Mohamed (Dead) through L.Rs. Vs A.M. Vasudevan Chettiar (Dead) through L.Rs. and others. Supreme Court (India)
| Case Number | Civil Appeal No. 8365 Of 2002 |
| Judges | G.S. Singhvi, J. |
| Issue | Bengal Tenancy Act, 1885; Land Acquisition Act; Perpetuities and Accumulations Act, 1964; Indian Succession Act, 1925 - Section 114; Code of Civil Procedure - Section 2(11), Order XXII Rule 10 |
| Citation | 2010 AllSCR 2015 |
| Judgement Date | July 07, 2010 |
| Court | Supreme Court (India) |
Judgment:
G.S. Singhvi, J.
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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, A.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').
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The suit property belonged to one Smt. Ramakkal Ammal wife of Pattabiraman of Uraiyur of Tiruchirapalli. 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 not sell the property to strangers. 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 counsel after conclusion of the arguments), which have direct bearing on the decision of this appeal read as under:
(4) 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.
(10) After my lifetime if any one of my sisters die that sister's share of `A' & `B' mentioned properties shall go to the male heirs of the deceased person. 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 conditions specified in clause 11 hereunder with absolute rights.
(11) As and when Savithiri Ammal's male heirs get and enjoy `A' property and as and when Rukmani Ammal's 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 not to strangers.
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.
`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 Chettiar's 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 comprised in T.S. No.2067
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Savithiri Ammal died in February 1979. 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. He impleaded Rukmani Ammal as one of the defendants. The suit was disposed of in terms of the compromise 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. Rukmani Ammal and her descendants.
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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. Respondent Nos.1 and 2 challenged the same in O.S. No.226 of 1983. They pleaded that in view of the restriction embodied in clause 11 of the Will, Ramakkal Ammal and her son could not 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.
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Rukmani Ammal and her son contested the suit by asserting that the Will executed by Ramakkal Ammal did not 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. 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.
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In a separate written statement filed by him, appellant - K. Naina Mohamed pleaded that the Will did not 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. He also questioned the legality of the restriction contained 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.
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Respondent No.1 examined himself as P.W.1 and one Srinivasan as P.W.2 and produced nine documents which were marked as Exhibits A1 to A9. Rukmani Ammal and her son neither appeared in the witness box nor produced any documentary evidence. Appellant K. Naina Mohamed examined himself as D.W.1 and one Thangavel as D.W.2, but he did not produce any document.
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The trial Court negatived the appellant's challenge to the Will by observing that being a purchaser from one of the legatees, he does not have the locus to question legality of the Will. The trial Court held that clause 11 is valid and binding on the legatees and it does not violate the rule against perpetuity. The trial Court further held that K. Naina Mohamed had purchased the property with notice of the clause relating to pre-emption and as such he is bound by the same.
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Rukmani Ammal and her son did not challenge the judgment and decree of the trial Court but the appellant did so by filing an appeal. The lower appellate Court agreed with the trial Court that the appellant before it was not entitled to challenge the Will but opined that the restriction contained in clause 11 of the Will was void and not binding on Rukmani Ammal and her son. 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 not have the power to impose restriction on alienation of their respective shares. 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.
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Respondent Nos.1 and 2 challenged the appellate decree in Second Appeal No.360/1989. While admitting the appeal, the High Court framed the following substantial question of law:
Whether the first appellate court is correct in holding that the restriction, namely the pre-emption clause in the Will is not valid?
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The learned Single Judge analysed the pleadings and evidence of the parties, referred to clauses 10 and 11 of the Will and held that the restriction contained therein does not violate the rule against perpetuity. He rejected the appellants' plea that right of pre-emption was not available to respondent Nos.1 and 2 against Rukmani Ammal and restored the decree passed by the trial Court.
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Shri S. Balakrishnan, learned senior counsel appearing for the appellant made three fold arguments. Learned senior counsel pointed out that Rukmani Ammal and her son, A.B.M. Ramanathan Chettiar died during the pendency of the second appeal before the High Court and argued that the same stood automatically abated because legal representatives of the deceased were not brought on record. Shri Balakrishnan relied upon the judgments of this Court in State of Punjab v. Nathu Ram AIR 1962 SC 89, Deokuer and another v. Sheoprasad Singh and others AIR 1966 SC 359, Madan Naik v. Hansubala Devi AIR 1983 SC 676, Amar Singh v. Lal Singh (1997) 11 SCC 570, Amba Bai v. Gopal (2001) 5 SCC 570 and Umrao v. Kapuria AIR 1930 Lahore 651 and argued that the High Court committed serious error by granting relief to respondent Nos.1 and 2 without insisting on the impleadment of the legal representatives of Rukmani Ammal and her son, A.B.M. Ramanathan Chettiar. Learned senior counsel further argued that the restriction contained in clause 11 on alienation of the property was to operate only within the respective branches and it was not obligatory for the male heirs of one branch to sell the property to the male heirs of the other branch. An alternative argument made by learned senior counsel is that the restriction contained in clause 11 of...
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