R.S.A. No.259 of 2004

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** ## **WEDNESDAY, THE 25TH DAY OF JANUARY 2012/5TH MAGHA 1933** ## **RSA.NO. 259 OF 2004 ( )** **---------------------------------AS.97/1995 OF SUB COURT,KOTTARAKKARA OS.149/1993 OF MUNSIFF COURT, PUNALUR** ## **APPELLANT(S)/APPELLANT/L.R.A.APPEAL(2ND DEFENDANT):** **----------------------------------------------------------------------------------------** **1. RUKIYA BEEVI, POOVATHUMMOOTTIL VEEDU, PATHADY, EROOR VILLAGE.** **2. HAZEENA OF DO. DO.** **3. SHAMEENA, OF DO. DO.** ## **BY ADVS.SRI.VPK.PANICKER** **SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SMT.SREELEKHA PUTHALATH SRI.A.R.DILEEP SRI.ABRAHAM GEORGE JACOB SRI.S.GOWTHAM** ## **RESPONDENT(S)/RESPONDENTSPLAINTIFFS/IST DEFENDANT:** **-----------------------------------------------------------------------------------------** **1. KASSIM, KAITHAKKATTIL PUTHEN VEEDU, PATHADY, EROOR VILLAGE.** **2. MYMOON BEEVI, OF DO. DO.** **3. SHAMSUDEEN, SHAFI MANZIL, VELAKKAI, KOYYAM P.O., CANNANORE DISTRICT.** **R3 BY SRI.P.K.VIJAYAMOHANAN R1&2 BY SRI.ALEXANDER GEORGE** ## **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== R.S.A. No.259 of 2004 ==================================== Dated this the 25[th] day of January, 2012** ## **J U D G M E N T** The following substantial questions of law are framed for a decision. i) Did not the courts below err in law in holding that plaintiffs are entitled to preemptive right in respect of plaint C schedule property devolved on the 1[st] defendant as per Ext.A1, gift in view of the Mahomedan Law prohibiting conditions which derogates from the completeness of the grant? ii) Did not the courts below err in law in holding that plaintiffs are entitled to pre-emptive right in the absence of plea and proof regarding demand as envisaged under Section 236 of the Mahomedan Law? ## **R.S.A. No.259 of 2004** -: 2 :- 2. The second appeal arises from the judgment and decree of learned Munsiff, Punalur in O.S. No.149 of 1993 declaring right of pre-emption pleaded by respondents 1 and 2- plaintiffs pursuant to the recital in Ext.A1, settlement deed and granting decree for prohibitory injunction. The second defendant who, notwithstanding the alleged clause for pre-emption in Ext.A1, purchased the property challenged the judgment and decree of the trial court in A.S. No.97 of 1995 of the sub Court, Kottarakkara but did not succeed. On his death, his legal representatives have preferred this Second Appeal where the above substantial questions of law are framed for a decision. 3. Dispute concerns plaint C schedule which is three cents of land. The said three cents along with plaint A and B schedules - 8 and 5 cents each, respectively originally belonged to Aliyar Rawther, paternal uncle of the first respondent. He executed Ext.A1, settlement deed on 19.03.1974 as per which plaint A schedule – 8 cents was allotted to the share of Subair and Khadeeja while plaint B schedule – 5 cents went to respondents 1 and 2. Plaint C schedule – 3 cents was allotted to the third respondent-first defendant. First defendant executed Ext.A2, assignment deed dated 19.03.1993 in favour of deceased ## **R.S.A. No.259 of 2004** ## -: 3 :- second defendant transferring his right, title and possession of plaint C schedule. Respondents 1 and 2 claimed that they learned about Ext.A2, on 02.04.1993 and thereon issued Ext.A4, notice dated 03.04.1993 to the third respondent and deceased second defendant informing them about the clause for pre-emption in Ext.A1, settlement deed and demanded conveyance of plaint C schedule to respondents 1 and 2. That notice was replied by Ext.A6, notice dated 19.05.1993 disputing claim of respondents 1 and 2. Hence the suit. 4. Third respondent-first defendant remained ex parte in the suit. Deceased second defendant contested the suit claiming that the clause for pre-emption is not enforceable and at any rate, he had no notice of the said clause in Ext.A1, settlement deed. He tried to protect the assignment in his favour by Ext.A2, sale deed claiming that he is a bona fide purchaser for consideration. 5. Trial court upheld the plea of respondents 1 and 2 based on the clause for pre-emption in Ext.A1, settlement deed and accordingly granted a decree in favour of respondents 1 and 2. They were directed to deposit the purchase price of Rs.10,500/- in the trial court within the time stipulated and ## **R.S.A. No.259 of 2004** ## -: 4 :- thereon deceased second defendant was to execute the assignment deed in respect of plaint C schedule in their favour and deliver possession of the property. That judgment and decree are confirmed by the learned Sub Judge, Kottarakkara in A.S. No.97 of 1995. Rejecting the plea of deceased second defendant that he is a bona fide purchaser entitled to the protection of Section 42 of the Transfer of Property Act (for short, 'the TP Act”) learned Sub Judge held that in the nature of the stipulation provided in Ext.A1, deceased second defendant cannot be said to be a bona fide purchaser as if he was ignorant of the relevant clause in Ext.A1. 6. It is contended by learned counsel that right of preemption is a weak right to be construed strictly. According to the learned counsel, Ext.A1, settlement deed shows that there is an absolute transfer of right, title, interest and possession of Aliyar Rawther in plaint C schedule in favour of the third respondent and hence any subsequent direction made in Ext.A1, settlement deed regarding pre-emption cannot derogate from the absolute transfer made in favour of the third respondent and hence is not enforceable. It is pointed out that the settlement is not conditional on the clause for pre-emption. It is also contended ## **R.S.A. No.259 of 2004** ## -: 5 :- that under the relevant provisions of the Mahomedan Law as well, when an absolute gift is made followed by a direction which derogates from the absolute gift, the direction or condition is invalid but the gift would take place. Learned counsel has placed reliance on the decision in **Nawazish Ali Khan v. Ali Raza** **Khan** (AIR 1948 PC 134) which is followed in **Kochu Ahmmed Pillai v. Pathumal** (2003 [1] KLT 826). It is also the contention of learned counsel that when a demand for preemption is made by a person entitled to thereof as per the provisions of Mahomedan Law, such demand should be made immediately on receiving information of the same and that he should have with the least delay affirmed his intention (to purchase the property) and made a formal demand either in the presence of the buyer or seller or on the premises which are subject to sale and in the presence of at least two witnesses. It is contended that there is no such plea or evidence in this case except the averment in paragraph 7 of the plaint that demanding execution of sale deed respondents 1 and 2 issued notice to the third respondent-first defendant and second defendant. 7. Learned counsel for respondents 1 and 2 contended that the clause for pre-emption in Ext.A1 should prevail and that ## **R.S.A. No.259 of 2004** ## -: 6 :- the settler made such a provision as regards plaint C schedule is concerned, as the said property is lying in between plaint A and B schedules obviously for proper enjoyment of plaint A to C schedules. It is contended that respondents 1 and 2 later purchased plaint B schedule and hence for convenient enjoyment of plaint A and B schedule properties, plaint C schedule is also required. It is pointed out that in the plaint there is reference to respondents 1 and 2 making the oral demand. 8. The first question I have to decide is whether the clause regarding pre-emption in Ext.A1, settlement deed is enforceable? In Ext.A1, it is recited that plaint A to C schedules are settled in favour of the donees mentioned therein including the third respondent (as regards the C schedule is concerned). By the said settlement deed itself the settler divested himself of all his right, title, interest and possession and the donees were empowered to enjoy the property with absolute right over it. Further, there is a direction that in case the donees wanted to sell their respective shares, unless other donees refused to purchase the item proposed to be sold for reasonable price, such donees shall not sell the property to any other person. It is that clause which is sought to be enforced by respondents 1 and 2. ## **R.S.A. No.259 of 2004** -: 7 :- 9. In **Nawazish Ali Khan v. Ali Raza Khan (supra)** it is held: “....where a gift of the corpus seeks to impose a condition inconsistent with such absolute dominion the condition is rejected as repugnant...” Relying on the said decision this Court in **Kochu Ahmmed Pillai v. Pathumal** (supra) held that the unequivocal statement in the gift deed gave absolute right to the donee and that the further condition that after the death of the donee, plaintiff will get the property cannot be enforced under the Mahomedan Law (there of course it was held that there is no life interest known to the Mahomedan Law). 10. Learned counsel has also invited my attention to Sec.164 of Mahomedan Law where it is stated with respect to gift with a condition that “when a gift is made subject to a condition which derogates from the completeness of the grant, the condition is void and the gift will take effect as if no conditions were attached to it.” Illustration 'C' to the said provision states that when A makes a gift of a house to B on condition that he ## **R.S.A. No.259 of 2004** ## -: 8 :- shall not sell it, or that he shall sell it to a particular individual, or that B shall give some part of it in iwaz or exchange, the condition is void and B takes an absolute interest in the house (Baillie, 547, Sec.165). 11. The principle regarding grant of a gift under the TP Act also is the same. Once there is an absolute transfer of right, title and interest of the donor, any condition which derogates from that absolute transfer can only be treated as void and the gift will take place as if there was no such condition. In this case I read from Ext.A1, settlement deed that Aliyar Rawther has made an absolute transfer of his right, title, interest and possession of plaint C schedule to the third respondent who is authorised to enjoy the property absolutely and that constitutes a valid settlement. Any further direction in Ext.A1 which derogates from that transfer of absolute right of the third respondent can only be treated as void and the settlement will take effect as if no such condition was imposed. This aspect of the matter was not taken into account by the courts below while enforcing the clause for pre-emption. 12. Another argument which learned counsel advanced is based on Sec.236 of the Mahomedan Law which I have **R.S.A. No.259 of 2004** ## -: 9 :- referred to above. Learned counsel has invited my attention to the decision in **State of Assam v. Jikadar Ali** (AIR 1972 SC 2162) where an argument was raised before the Supreme Court based on non-compliance of Sec.236 of the Mahomedan Law. The Supreme Court in paragraph 10 observed that the said question could have been raised at least in the High Court as it involves mixed questions of fact and law. 13. True, that the Supreme Court has so observed. But being a blend of fact and law, in the absence of any plea to that effect in the written statement I am not inclined to entertain that contention. 14. The first appellate court has considered the question whether deceased second defendant is entitled to the protection under Sec.42 of the TP Act. In fact, in view of Sec.2 of the TP Act nothing in Chapter II (which takes in Secs.5 to 53A) shall be deemed to affect any rule of Mahomedan Law. 15. In the view I have taken with respect to the absolute transfer made under Ext.A1 and the subsequent direction in derogation of that right whereby power of the third respondent to alienate the property is curtailed by the clause for pre-emption which itself is a weak right, I am inclined to hold that the decision ## **R.S.A. No.259 of 2004** ## -: 10 :- rendered by the courts below are erroneous. 16. The substantial questions of law raised are answered as above. Resultantly, the Second Appeal succeeds. Judgment and decree of learned Munsiff, Punlur in O.S. No.149 of 1993 as confirmed by the learned Sub Judge in A.S. No.97 of 1995 are set aside. O.S. No.149 of 1993 will stand dismissed. Parties are directed to suffer their costs throughout. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv