REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION   

CIVIL APPEAL NO. 8365 OF 2002   

K. Naina Mohamed (Dead) ……..Appellants through L.Rs.

Versus

A.M. Vasudevan Chettiar (Dead) ……….Respondents through L.Rs. and others

J U D G M E N T

G.S. Singhvi,  J.   

1. 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’).

2. 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  

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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  

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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”

3. 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.   

4.  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,  

Rukmani 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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5. 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.

6. 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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7. 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.

8. 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.   

9. 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  

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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.   

10. 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?”

11. 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  

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Nos.1 and 2 against Rukmani Ammal and restored the decree passed by the  

trial Court.

12. 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  

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heirs of the other branch. An alternative argument made by learned senior  

counsel  is  that  the  restriction  contained  in  clause  11  of  the  Will  against  

alienation of the property is ex facie violative of the rule against perpetuity  

and the trial Court and the High Court committed serious error by relying  

upon  the  same  for  the  purpose  of  nullifying  the  sale  deed  executed  by  

Rukmani  Ammal  and  her  son  A.B.M.  Ramanathan  Chettiar.    The  last  

argument of the learned senior counsel is that in view of the compromise  

arrived at between the parties in OS No.473 of 1981, Rukmani Ammal and  

her son became absolute owner of ‘B’ property and their rights cannot be  

regulated or restricted by the conditions enshrined in the Will.

13. Shri  R.  Sundaravaradhan,  learned  senior  counsel  appearing  for  the  

respondents supported the impugned judgment and argued that the appellant  

is  not  entitled  to  seek  a  declaration  that  the  second  appeal  filed  by  

respondent Nos.1 and 2 stood abated on account of non-impleadment of the  

legal representatives of Rukmani Ammal and her son, who died during the  

pendency thereof.  Learned senior counsel submitted that rules contained in  

Order XXII of the Code of Civil Procedure are required to be interpreted  

liberally so as to avoid abatement of the pending matters.  He then argued  

that  the  second  appeal  did  not  abate  on  account  of  death  of   Rukmani  

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Ammal and her son, A.B.M. Ramanathan Chettiar because in terms of the  

Will executed by Smt. Ramakkal Ammal, Rukmani Ammal got life interest  

only and her son, who became absolute owner neither challenged the decree  

passed by the trial Court nor contested the second appeal.  Learned counsel  

then referred to the definition of term ‘legal representatives’ contained in  

Section 2(11) of the Code of Civil Procedure and argued that the appellant,  

who  had  purchased  the  suit  property  will  be  deemed  to  be  legal  

representative  of  the  deceased  because  he  represented  their  estate.   In  

support of this argument, Shri Sundaravaradhan relied upon the judgments  

of this Court in Mohd. Arif v. Allah Rabbul Alamin AIR 1982 SC 948 and  

Ghafoor  Ahmad  Khan  v.  Bashir  Ahmed  Khan  AIR  1983  SC  123.  

Learned senior counsel submitted that the restriction contained in clause 11  

of the Will was not absolute inasmuch as it was open to the male heirs of  

Savithiri  Ammal and Rukmani Ammal to transfer the property within the  

family.   Learned counsel  placed  strong reliance  on the  judgments  of  the  

Privy Council in Mohammad Raza and others v. Mt. Abbas Bandi Bibi  

AIR 1932 PC 158 and of this Court in Ram Baran Prasad v. Ram Mohit  

Hazra AIR 1967 SC 744 and Zila Singh v. Hazari AIR 1979 SC 1066 and  

emphasized that the object of the restriction on alienation of the properties to  

strangers was to protect the interest of the family and there was no violation  

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of the rule against perpetuity.  

14. We  have  considered  the  respective  submissions  and  perused  the  

records.  We shall first deal with the question whether the second appeal  

filed by respondent Nos.1 and 2 stood abated due to their alleged failure to  

bring on record the legal representatives of Rukmani Ammal and her son  

A.B.M.  Ramanathan  Chettiar,  who  died  on  23.6.1989  and  21.6.1995  

respectively i.e. much before the disposal of the second appeal.  A reading of  

the  judgment  under  challenge  shows that  neither  the  factum of  death  of  

Rukmani Ammal and her son was brought to the notice of the learned Judge  

who decided the appeal nor any argument was made before him that the  

second  appeal  will  be  deemed  to  have  abated  on  account  of  non  

impleadment of the legal representatives of the deceased.  The reason for  

this appears to be that Rukmani Ammal and her son A.B.M. Ramanathan  

Chettiar, who had also signed the sale deed as one of the vendors did not  

challenge the judgment and decree of the trial Court and only the appellant  

had questioned the same by filing an appeal.  A.B.M. Ramanathan Chettiar  

did not even contest the second appeal preferred by respondent Nos.1 and 2.  

Before this Court, the issue of abatement has been raised but the memo of  

appeal is conspicuously silent whether such a plea was raised and argued  

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before the High Court.  Therefore, we do not think that the appellant can be  

allowed to raise this plea for frustrating the right of respondent Nos.1 and 2  

to  question  alienation  of  the  suit  property  in  violation  of  the  restriction  

contained in clause 11 of the Will.  Here, it is necessary to mention that by  

virtue  of  the  Will  executed  by  her  sister,  Rukmani  Ammal  got  only life  

interest in the property of the testator and her male heir, A.B.M. Ramanathan  

Chettiar got absolute right after her death.  Therefore, during her life time,  

Rukmani Ammal could not have sold the property by herself.  This is the  

precise reason why she joined her son in executing the sale deed in favour of  

the appellant.  If an objection had been taken before the High Court that  

legal representatives of A.B.M. Ramanathan Chettiar have not been brought  

on record, an order could have been passed under Rule 4 of Order XXII  

which reads as under:

“The  Court  whenever  it  thinks  fit,  may exempt  the  plaintiff  from the necessity of substituting the legal representatives of  any such defendant who has failed to file a written statement or  who, having filed it, has failed to appear and contest the suit at  the hearing; and judgment may, in such case,  be pronounced  against  the  said  defendant  notwithstanding  the  death of  such  defendant and shall have the same force and effect as if it has  been pronounced before death took place.”   

15. The definition of the term ‘legal representative’ contained in Section  

2(11)  of  the  Code  of  Civil  Procedure  also  supports  the  argument  of  the  

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learned counsel for the respondents that the second appeal cannot be treated  

as having abated because the appellant who had purchased the property was  

representing the estate of the deceased.  In  Mohd. Arif v. Allah Rabbul  

Alamin (supra), this Court considered a somewhat similar issue and held as  

under:

“It  is true that the appellant did not prefer any appeal  to the  District Court against the original decree but in the first appeal  he was a party respondent. But that apart, in the second appeal  itself Mohammad Arif had joined as co-appellant along with his  vendor,  Mohammad  Ahmed.  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. He being  on record the estate of the deceased appellant qua the property  in  question  was  represented  and  there  was  no  necessity  for  application  for  bringing  the  legal  representatives  of  the  deceased appellant on record. The appeal in the circumstances  could not be regarded as having abated and Mohammad Arif  was entitled to prosecute the appeal.”

(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  

non-impleadment  of  the  heirs  of  the  sole  respondent  by  observing  that  

during his  life  time,  the  respondent  had transferred  the  property  (subject  

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matter of appeal) to his wife by way of gift and as such the case would fall  

under Order XXII Rule 10 CPC.  

Reference  may  also  be  made  to  the  Division  Bench  judgment  of  

Calcutta High Court in Haradhone v. Panchanan AIR 1943 Calcutta 570.  

That was a case under Bengal Tenancy Act, 1885.  The proprietor of the  

land, Sir Bejoy Chand Mehtab filed suit for settlement of rent in respect of  

the  tenure.   The  defendants  contested  the  suit  by  saying  that  the  lands  

constituted their niskar holding and that the same were wrongly recorded as  

liable to be assessed to rent under the plaintiff.  The Assistant Settlement  

Officer decreed the plaintiff’s claim.  He held that the tenancy was not a  

niskar one and it was liable to be assessed to rent.  Learned special Judge,  

who heard the appeal  preferred by the defendants’ confirmed the finding  

recorded by the Assistant Settlement Officer on the issue of nature of the  

property but set aside the decree so far as it settled the amount of rent and  

remanded  the  case  to  the  Assistant  Settlement  Officer.   Learned  special  

Judge also held that the defendants were no longer in possession of the suit  

land.  The defendants challenged the appellate judgment by filing an appeal  

before the High Court.   During the pendency of  the appeal,  the plaintiff  

granted  a  putni,  which  included  the  suit  lands  to  Panchanan  Palit.   The  

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putnidar applied for impleadment as a party in the appeal and his prayer was  

granted.  Thereafter, the original plaintiff died, but no substitution was made  

in his place.  It was argued before the High Court that the appeal abated  

against the plaintiff because his legal representatives were not brought on  

record.  The Division Bench of the High Court held that after giving up the  

estate in a permanent putni lease, the proprietor of the estate ceased to be the  

landlord of all subordinate tenures and he did not have the right to institute a  

proceeding under Section 105 of the Act.  The High Court then referred to  

Order XXII Rules 2 and 10 and held as under:

“The position of the parties after the creation of the putni in this  case therefore became as follows:  (1) The putni having been  created pendente lite the defendants-appellants were entitled to  prosecute their appeal  as against  the plaintiff  Maharaja alone  ignoring the transfer pendente lite; the transferee pendente lite  would  have  have  been  bound  by  the  ultimate  result  of  the  litigation.  (2)  The defendants-appellants were entitled also to  bring on record  the  transferee  pendente  lite  under  Order  22,  R.10,  Civil  P.C.,  in  the  place  of  the  Maharaja  plaintiff- respondent; (3)  Had the proceedings been instituted after the  creation  of  the  putni,  the  Maharaja  plaintiff  would  not  have  been competent to institute the proceeding under S. 105 of the  Act.  This shows that the interest of the plaintiff involved in the  suit came to or devolved upon the holder of the putni within the  meaning of O. 22, rule 10, C.P.C, (4)  The relief awarded by the  decree appealed from was that the tenancy was not a rent free  one but  was  liable  to  assessment  of  rent;  and this  being the  nature of the relief involved in the appeal, it was the immediate  landlord having permanent interest who was vitally concerned  with  it,  and  not  the  superior  landlord  who  had  permanently  leased out his interest.  In our opinion, therefore, the right to  appeal survived the deceased plaintiff and it did survive against  

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the putnidar respondent alone within the meaning of order 22,  rule 2, C.P.C.  We, therefore, hold that the appeal is competent  without the legal representative of the deceased Maharaja being  brought on the record.”

(emphasis supplied)          

The  judgments  on  which  reliance  has  been  placed  by  Shri  

Balakrishnan are clearly distinguishable.  In State of Punjab v. Nathu Ram  

(supra),  this  Court  held  that  where  the  appeal  preferred  by  the  State  

Government  against  an  award  passed  by  the  arbitrator  under  the  Land  

Acquisition Act in favour of two brothers stood abated against one brother  

on account of non-impleadment of his legal representatives, the same did not  

survive against the other brother because the award was joint and indivisible.  

After  taking note of  the  provisions  contained in Order  XXII  Rule 4 and  

Order I Rule 9, the Court observed:

“(6) The question whether a Court can deal with such matters  or not, will depend on the facts of each case and therefore no  exhaustive  statement  can  be  made  about  the  circumstances  when this is possible or is not possible.  It may, however, be  stated that ordinarily the considerations which weigh with the  Court  in  deciding upon this  question  are  whether  the  appeal  between  the  appellants  and  the  respondents  other  than  the  deceased can be said to be properly constituted or can be said to  have all the necessary parties for the decision of the controversy  before the Court.  The test to determine this has been described  in diverse  forms.  Courts  will  not  proceed with an appeal  (a)  when the success of the appeal may lead to the Court’s coming  to a decision which be in conflict with the decision between the  appellant  and  the  deceased  respondent  and  therefore  which  would  lead  to  the  Court’s  passing  a  decree  which  will  be  

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contradictory to the decree which had become final with respect  to  the  same  subject-matter  between  the  appellant  and  the  deceased  respondent;  (b)  when  the  appellant  could  not  have  brought  the  action  for  the  necessary  relief  against  those  respondents alone who are still before the Court and (c) when  the  decree  against  the  surviving  respondents,  if  the  appeal  succeeds,  be  ineffective,  that  is  to  say,  it  could  not  be  successfully executed.”

In  Madan Naik v.  Hansubala Devi (supra),  this  Court was called  

upon to consider the correctness of an order passed by the learned Single  

Judge of Patna High Court who set aside dismissal of an application made  

by the appellant in the matter of abatement of the appeal and remitted the  

matter  to the lower appellate  Court  for disposal  of  the appeal  on merits.  

While approving the order of the learned Single Judge, this Court referred to  

Order XXII Rules 4 and 11 CPC and observed:

“Order 22 Rule 11 of the Code of Civil Procedure read with  Order 22 Rule 4 makes it obligatory to seek substitution of the  heirs  and  legal  representatives  of  deceased  respondent  if  the  right to sue survives. Such substitution has to be sought within  the time prescribed by law of limitation. If no such substitution  is sought the appeal will abate. Sub-rule (2) of Rule 9 of Order  22  enables  the  party  who  is  under  an  obligation  to  seek  substitution to apply for an order to set aside the abatement and  if  it  is  proved that he was prevented by any sufficient  cause  from continuing the suit  which would include an appeal,  the  court shall set aside the abatement. Now where an application  for setting aside an abatement is made, but the court having not  been satisfied that the party seeking setting aside of abatement  was prevented by sufficient cause from continuing the appeal,  the court may decline to set aside the abatement. Then the net  

17

result  would  be  that  the  appeal  would  stand  disposed  of  as  having abated. It may be mentioned that no specific order for  abatement of a proceeding under one or the other provision of  Order 22 is envisaged; the abatement takes place on its own  force by passage of time. In fact, a specific order is necessary  under Order 22 Rule 9 CPC for setting aside the abatement.”

In  Amba Bai v. Gopal (supra),  this Court considered whether non  

impleadment  of  the  legal  representatives  of  the  defendant  in  a  suit  for  

specific performance was sufficient to deny them right to contest the matter  

at the stage of execution.  The facts of that case were that the suit filed by  

Laxmi Lal for specific performance against one Radhu Lal was dismissed by  

the trial Court but was decreed by the appellate Court.  During the pendency  

of the second appeal preferred by Radhu Lal, plaintiff Laxmi Lal died and  

his  legal  representatives  were  brought  on  record.   However,  the  legal  

representatives of Radhu Lal who too died before the dismissal of the appeal  

were not brought on record and this fact was not brought to the notice of the  

High Court.  When the legal representatives of Laxmi Lal filed execution  

case against the legal representatives of Radhu Lal, an objection was raised  

on the latter’s  behalf that  the  judgment  rendered by the High Court  was  

nullity.  The trial Court rejected the objection.  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  

18

passed against a dead person.  The High Court accepted the theory of merger  

and ruled that the execution proceedings were liable to be dismissed.  This  

Court reversed the order of the High Court and held:

“In the instant case, there is no question of the application of  the doctrine of merger. As the second appellant Radhu Lal died  during the pendency of the appeal, and in the absence of his  legal  heirs  having  taken  any  steps  to  prosecute  the  second  appeal, the decree passed by the first appellate court must be  deemed to have become final. By virtue of the order passed by  the  first  appellate  court,  the  plaintiff’s  suit  for  specific  performance was decreed. Failure on the part of the legal heirs  of Radhu Lal to get themselves impleaded in the second appeal  and  pursue  the  matter  further  shall  not  adversely  affect  the  plaintiff  decree-holder  as it  would be against  the mandate  of  Rule 9 Order 22 of the Code of Civil Procedure. The impugned  order is, therefore, not sustainable in law and the same is set  aside  and  the  appeal  is  allowed.  The  executing  court  may  proceed with the execution proceedings.”

In Amar Singh v. Lal Singh (supra), this Court held that where more  

than one person was entitled to property covered under the Will, the relief is  

joint  and  inseparable  and  if  the  appeal  stood  abated  against  the  first  

respondent, the same shall stand abated against the remaining respondents as  

well.   In  Umrao v. Kapuria (supra), the learned Single Judge of Lahore  

High Court held that where legal representatives of the successful plaintiff  

were not brought on record, the whole appeal stood abated.

19

16. In none of the aforementioned cases,  a question similar  to the one  

raised in this appeal was examined and decided.  Therefore, the proposition  

laid down therein cannot be made basis for declaring that the second appeal  

preferred by respondent Nos.1 and 2 stood automatically abated due to non-

impleadment of the legal representatives of Rukmani Ammal and her son,  

A.B.M.  Ramanathan  Chettiar,  despite  the  fact  that  the  appellant,  who  

represented the estate of the deceased in his capacity as a purchaser had not  

only challenged the judgment of the trial Court by filing an appeal but also  

contested the second appeal.

17. The next issue which needs consideration is whether the restriction  

enshrined  in  clause  11  of  the  Will  executed  by  Ramakkal  Amal  can  be  

declared as void on the ground that it violates the rule against perpetuity.  

This rule has its origin in the Duke of Norfolk’s case of 1682.  That case  

concerned Henry, 22nd Earl of Arundel, who had tried to create a shifting  

executory limitation so that one of his titles would pass to his eldest son  

(who was mentally deficient) and then to his second son, and another title  

would pass to his second son, but then to his fourth son.  The estate plan also  

included provisions for shifting the titles many generations later, if certain  

conditions were to occur.  When the second son, Henry, succeeded to one  

20

title, he did not want to pass the other to his younger brother, Charles.  The  

latter  sued to enforce his interest.   The House of Lords held that  such a  

shifting condition could not exist indefinitely and that tying up property too  

long beyond the lives of people living at the time was wrong.  In England,  

the rule against perpetuity was codified in the form of the Perpetuities and  

Accumulations  Act,  1964  and  in  the  latest  report  of  the  British  Law  

Commission,  a  new  legislation  has  been  recommended.  

(http://www.lawcom.gov.uk)

18.   In India, the rule against perpetuity has been incorporated in Section  

114 of the Indian Succession Act, 1925 which reads thus:

“114.  Rule against perpetuity.– No bequest is valid whereby  the vesting of the thing bequeathed may be delayed beyond the  life-time of one or more persons living at the testator’s death  and the minority of some person who shall be in existence at  the expiration of that period, and to whom, if he attains full age,  the thing bequeathed is to belong.”

However, as will be seen hereinafter, the principle enshrined in the  

aforesaid section does not have any bearing on this case.

19. In  Ram Baran  Prasad  v.  Ram Mohit  Hazra (supra),  this  Court  

considered  whether  covenant  of  pre-emption  contained  in  an  arbitration  

21

award violates the rule against perpetuity and whether the same is binding  

on assignees or successor-in-interest of the original contracting parties.  The  

factual matrix of that case was that two brothers, Tulshidas Chatterjee and  

Kishorilal Chatterjee owned certain properties in the suburbs of Calcutta.  In  

1938, Kishorilal sued for partition of the properties.  The matter was referred  

to arbitration.  The arbitrators gave award, which was made rule of the court.  

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.  In the award there was a clause to the following effect:

“We further find and report with the consent 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.”

After the arbitration award became rule of the court, Tulshidas sold some of  

the portion of his properties to Nagendra Nath Ghosh.  This was done after  

Kishorilal refused to pre-empt the same.  Later on, Kishorilal sold his two  

blocks  to  Rati  Raman  Mukherjee  and  others.   The  Mukherjees  sold  the  

property to the plaintiff-respondents.  Nagendra Nath also sold the property  

to defendant No.1.  Thereupon, the plaintiffs filed suit for pre-empting the  

transaction between Nagendra Nath Ghosh and defendant No.1.  The trial  

Court held that the covenant of pre-emption was not hit by the rule against  

22

perpetuities and was enforceable against the assignees of the original parties  

to the contract.  Accordingly, a decree was granted to the plaintiffs.  The  

defendants took the matter in appeal to the Calcutta High Court which was  

dismissed.   Before  this  Court,  it  was  argued  that  the  covenant  for  pre-

emption was merely a personal covenant between the contracting parties and  

was not binding against successors-in-interest or the assignees of the original  

parties to the contract.  While rejecting the argument, the Court referred to  

various clauses of the award and observed:

“It is obvious that in these clauses expression “parties” cannot  be  restricted  to  the  original  parties  to  the  contract  but  must  include the legal representatives and assignees of the original  parties and there is no reason why the same expression should  be given a restricted meaning in the pre-emption clause.”

The Court then considered whether covenant of pre-emption offends  

the  rule  against  perpetuities  and  is,  therefore,  void  and  not  enforceable.  

After noticing the definition of “perpetuity” given by Lewis, the Court held  

that the rule against perpetuity concerns rights of property only and does not  

affect the making of contracts which do not create interest in property.  The  

Court then referred to Sections 14 and 54 of the Transfer of Property Act  

and observed as under:

“The rule against perpetuity which applies to equitable estates  in English law cannot be applied to a covenant of pre-emption  

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because Section 40 of the statute does not make the covenant  enforceable against the assignee on the footing that it creates an  interest in the land.”

The  Court  further  held  that  the  covenant  of  pre-emption  was  not  

violative of the rule against perpetuity and could not be declared as void.   

The same view was reiterated in Shivji v. Raghunath (1997) 10 SCC  

309.   In  that  case,  the  Court  found that  the  restriction  contained against  

alienation of the property was not absolute and held that the same was not  

violative  of  the  rule  against  perpetuity.   After  noticing  the  ratio  of  the  

judgment in  Ram Baran Prasad v. Ram Mohit Hazra (supra), the Court  

held:                    

“………when  a  contract  has  been  executed  in  which  no  interest in praesenti has been created, the rule of perpetuity has  no application.  As a result, the agreement is in the nature of a  pre-emptive right created in favour of the co-owner.  Therefore,  it  is enforceable as and when an attempt is made by the co- owner to alienate the land to third parties.”

20. Reverting to the case in hand, we find that by executing Will dated  

22.9.1951, Smt. Ramakkal Ammal created life interest in favour of her two  

sisters with a stipulation that after their death, their male heirs will acquire  

absolute right in ‘A’ and ‘B’ properties respectively subject to the condition  

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that if either of them want to sell the property then they shall have to sell it  

to other sharers only as per the prevailing market value and not to strangers.  

The  restriction  contained  in  clause  11  was  not  absolute  inasmuch  as  

alienation was permitted among male heirs of the two sisters.  The object of  

incorporating this restriction was to ensure that the property does not go out  

of the families of the two sisters.  The male heirs of Savithri Ammal and  

Rukmani Ammal did not question the conditional conferment upon them of  

title of the properties.  Therefore, the appellant who purchased ‘B’ property  

in  violation  of  the  aforesaid  condition  cannot  be  heard  to  say  that  the  

restriction  contained  in  clause  11  of  the  Will  should  be  treated  as  void  

because it violates the rule against perpetuity.  

21. In re. MACLEAY 1875 M. 75, a similar question was considered and  

answered in negative.  The facts of that case were Margarette Mayers, by her  

will, after a gift to her brother Henry on condition that he settled it on his  

wife  and  children,  and  the  gift  of  a  like  sum  to  his  sisters,  made  the  

following devise:-

“I give to my dear brother John the whole of the property given  to me by my dear aunt Clara Perkins, consisting of the manor of  Bletchingley,  in the county of  Surrey,  and the Pendell  Court  Mansion, with the land belonging to it, on the condition that he  never sells it out of the family.”

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The testatrix then gave legacies to her nephews and nieces named in the  

Will,  and after  a  legacy to  a  servant,  gave the  residue  of  her  estate  and  

effects to her “dear brothers” and “dear sisters.”  John Perkins Mayers, the  

devisee under the Will contracted with Sir George Macleay for the sale to  

him  of  the  property  comprised  in  the  devise,  with  a  proviso  that  the  

intending  purchaser  should  be  at  liberty  to  apply  for  registration  of  the  

hereditaments in the Office of Land Registry, and that in the event of its  

being found impossible to obtain such registration, the contract should be  

void.  In the course of investigation of the title, a doubt arose whether in  

view of the condition enshrined in the Will,  a marketable title  existed in  

favour of the vendor.  The Registrar made a reference to the Court under  

Section 6 of the Transfer of Land Act.  It was suggested that the restriction  

contained in the Will was void being repugnant to the quality of the estate.  

Sir G. Jessel, M.R. referred to several earlier judgments and observed:

“The law on the subject is very old, and I do not think it can be  better  stated  that  it  is  in  Coke upon  Littleton,  in  Sheppard’s  Touchstone, and other books of that kind, which treat it in the  same way.  Littleton says (1): “If a feoffment be made upon this  condition, that the feoffee shall not alien the land to any, this  condition is void, because when a man is enfeoffed of lands or  tenements he hath power to alien them to any person by the  law.  For if such a condition should be good, then the condition  should  oust  him of  all  the  power  which  the  law gives  him,  which should be against reason, and therefore such a condition  is void.”  Then he says (2): “But if the condition be such that  the feoffee shall not alien to such a one, naming his name, or to  

26

any of his heirs or of the issues of such a one, or the like, which  conditions do not take away all power of alienation from the  feoffee,  then such condition is  good.”  So that,  according to  Littleton, the test is, does it take away all power of alienation?  I  think it is fair to make one remark, which is made in the case of  Muschamp v.  Bluet (3),  cited  in  Jarman on  Wills  (4),  and  adopted by Lord Romilly in the case I am going to refer to, of  Attwater v. Attwater (5) – that it must not, in fact, take away all  power, because, if you say that he shall not alien except to  A.  B., who you know will not or cannot purchase, that would be in  effect restraining him from all alienation, and, as is very well  said in many cases, and is said in a passage in Coke to which I  am about to refer, you cannot do that indirectly which you can  do directly.  I had occasion to refer, in the case of  Jacobs v.  Brett (6), to a practice which was said to prevail in the Court of  Common  Pleas,  and  where  I  said  it  never  could  have  been  considered by that Court as being intended as the infringement  of so salutary a rule.  The condition, therefore, whatever it may  be must not really take away all power, either by express words  or by the indirect effect of the frame of the condition.  That is  the effect of the rule as laid down by Littleton.  Then Coke says  (1):  “If  a  feoffment  in  fee  be  made  upon condition  that  the  feoffee shall not infeoff J. S. or any of his heirs, or issues, & e.  this is good, for he doth not restrain the feoffee of all his power:  the reason here yielded by our author is worthy of observation.  An in this case, if the feoffee infeoof J. N. of intent and purpose  that he shall infeoof J. S., some hold that this is a breach of the  condition,  for  quando  aliquid  prohibetur  fieri,  ex  director  prohibetur et per obliquum.”  That was Coke’s notion: and I  hope it has not altogether departed from our Courts.  Then he  says: “If a feoffment be made upon condition that the feoffee  shall  not  alien  in  mortmain,  this  is  good,  because  such  alienation  is  prohibited  by  law,  and  regularly  whatsoever  is  prohibited  by  the  law may  be prohibited  by  condition,  be  it  malum prohibitum or malum in se,” and there he stops.

So  that,  according  to  the  old  books,  Sheppard’s  Touchstone  being to  the  same effect,  the  test  is  whether  the  condition  takes  away  the  whole  power  of  alienation  

27

substantially:  it  is  a  question  of  substance,  and  not  of  mere  form.

Now, you may restrict  alienation in many ways.   You  may  restrict  alienation  by  prohibiting  a  particular  class  of  alienation,  or  you  may  restrict  alienation  by  prohibiting  a  particular class of individuals, or you may restrict alienation by  restricting it to a particular time.  In all those ways you may  limit it, and it appears to me that in two ways, at all events, this  condition  is  limited.   First,  it  is  limited  as  to  the  mode  of  alienation,  because  the  only  prohibition  is  against  selling.  There are  various  modes of  alienation besides sale;  a  person  may lease, or he may mortgage, or he may settle; therefore it is  a  mere  limited  restriction  on  alienation  in  that  way.   Then,  again, it is limited as regards class; he is never to sell it out of  the family, but he may sell it to any one member of the family.  It is not, therefore, limited in the sense of there being only one  persons  to  buy;  the  will  shews  there  were  a  great  many  members of the family when she made her will; a great many  are named in it; therefore you have a class which probably was  large,  and  was  certainly  not  small.   Then  it  is  not,  strictly  speaking, limited as to time, except in this way, that it is limited  to the life of the first tenant in tail; of course, if unlimited as to  time, it would be void for remoteness under another rule.  So  that this is strictly a limited restrain on alienation, and unless  Coke upon Littleton has been overruled or is not good law, this  is a good condition.

It is said that the very point occurred in Doe v. Pearson  (1) and Attwater v.  Attwater (2), and it appears to me that the  point did occur in both those cases.  In   Doe   v.   Pearson   the gift    was a gift in fee upon this special proviso and conditions, “that  in case my said daughters   Ann   and   Hannah Collett  , or either of    them, shall  have no lawful issue, that then and in such case,  they and she having no lawful issue as aforesaid shall have no  power to dispose of her share in the said estates so above given  to  them, except  to  her  sister  or  sisters,  or  to their  children.”  Here it is “family”, which is a larger term.  In the next place,  here it is “sell” only, there it was “dispose”, which is probably  the  largest  term  known  to  the  law.   So  that  the  power  of  

28

alienation was very much more restricted in    Doe   v.    Pearson    than it is in the case before me.  But the full Court there held,  after a very long and elaborate argument, Lord    Ellenborough    giving judgment and going into the authorities very carefully,  that the condition was good; and he says (3): “As to the first,  we think the condition is  good; for, according to the case of  Daniel   v.    Ubley   (4), though the Judges did not agree as to the    effect of a devise”, and so forth, “yet in that case it  was not  doubted but  that  she might  have had given her  a  fee  simple  conditional to convey it to any of the sons of the devisor; and if  she did not, that the heir might enter for the condition broken.”  Now that is a stronger case still; because, as Lord Ellenborough  and  the  other  Judges  of  the  Queen’s  Bench  read  Daniel v.  Ubley (1), all the Judges agreed, n the time of Sir W. Jones, that  it was good to give a woman a fee simple with a condition to  convey it to one of the sons of the devisor; that is, she could not  convey it to anybody else; it  was limited.  There Mr. Justice  Doderidge said  (2)  “He  conceived  she  had  the  fee,  with  condition, that if she did alien, that then she should alien to one  of the children,” which is a very limited class; and he finally  concluded by saying that “her estate was a fee with a liberty to  alienate  it  if  she would,  but  with a  condition that  if  she did  alienate, the she should alienate to one of her sons.”  So that the  case of   Daniel   v.   Ubley   is also stronger than the present.  In the    first place, it was a prohibition, not merely against selling, but  against  all  alienation;  and  in  the  next  place,  the  class  was  limited to one of the sons of the devisor;  but yet  the Judges  gave an opinion that it would be good, and following that old  authority,  Lord    Ellenborough   and the  Judges of  the  Queen’s    Bench, in    Doe   v.    Pearson   (3), in the year 1805, held that the    condition was valid.

Now taking that altogether, seeing that he has no quarrel  with  Doe v.  Pearson (2),  seeing that  he takes  it  that  Coke’s  assertion is good law, the key to that judgment must be found in  the latter observations, where he says: “It appears to me, also,  that  this  is  the  true  construction  of  the  words  used  by  the  testator;  it  is,  in  truth,  an  injunction  never  to  sell  the  hereditaments devised at all.  The words ‘out of the family’ are  merely  descriptive of the effect  of the sale;” and,  so read, it  

29

does not conflict with the older authorities to which I have had  occasion to refer.  I must consider that case, recognizing, as it  does,  those  older  authorities  as  being  good  law,  to  have  proceeded  on  the  particular  wording  of  that  will,  and  more  especially on the latter clause.  I do not say that the clause does  have the same effect on my mind that it had upon the mind of  my predecessor; but still it is useless to criticize a question of  construction when you come to the conclusion that the Judge is  intending  not  to  lay  down a  new rule  of  law,  but  is  simply  construing the particular instrument before him.   

Therefore,  I  consider  that  the  case  of  Attwater v.  Attwater (3) does not affect the law of the case, and that this  being  a  limited  restriction  upon  alienation,  the  condition  is  good.”

                   (emphasis supplied)

22. In Mohammad Raza and others v. Mt. Abbas Bandi Bibi (supra),  

the Privy Council confirmed the judgment of the Chief Court of Oudh which  

had ruled that when a person is allowed to take property under a conditional  

family arrangement, he cannot be heard to complain against the restriction  

on alienation of the property outside the family.  The appellant before the  

Privy Council  was a purchaser of the property belonging to Smt.  Sughra  

Bibi  which she got  in furtherance of compromise  arrived at  between the  

parties in a suit brought against her cousin.  The Privy Council  held that  

even though it may not be possible to hold that Sughra Bibi took nothing  

more than a life estate,  the restriction against  alienation to strangers was  

valid.  The relevant portions of that judgment are extracted below:

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“…………But assuming in the appellants’ favour that she took  an estate of inheritance, it was nevertheless one saddled, under  the express words of the document, with a restriction against  alienation to “a stranger”.  Their Lordships have no doubt that  “stranger” means anyone who is not a member of the family,  and the appellants are admittedly strangers in this sense.  Unless  therefore this  restriction can for some reason be disregarded,  they have no title to the properties which can prevail against the  respondent.

On the assumption that Sughra Bibi took under the terms of the  document  in  question  an  absolute  estate  subject  only  to  this  restriction,  their  Lordships  think  that  the  restriction  was  not  absolute  but  partial;  it  forbids  only  alienation  to  strangers,  leaving her  free  to  make any transfer  she pleases  within  the  ambit of the family.  The question therefore is whether such a  partial  restriction  on  alienation  is  so  inconsistent  with  an  otherwise absolute estate that it must be regarded as repugnant  and merely void.  On this question their Lordships think that  Raghunath Prasad Singh’s case (1) is of no assistance to the  appellants,  for  there  the  restriction  against  alienation  was  absolute  and  was  attached  to  a  gift  by  will.   It  is  in  their  Lordships’  opinion,  important  in  the  present  case  to  bear  in  mind that the document under which the appellants claim was  not a deed of gift, or a conveyance, by one of the parties to the  other, but was in the nature of a contract between them as to the  terms upon which  the  ladies  were  to  take.   The  title  to  that  which Sughra Bibi took was in dispute between her and Afzal  Husain.  In compromise of their conflicting claims what was  evidently a family arrangement was come to, by which it was  agreed  that  she  should  take  what  she  claimed  upon  certain  conditions.   One of  these conditions was that  she would not  alienate the property outside the family.  Their Lordships are  asked  by  the  appellants  to  say  that  this  condition  was  not  binding  upon  her,  and  that  what  she  took  she  was  free  to  transfer to them.

The  law  by  which  this  question  must  be  judged  is  their  Lordships think prescribed by S.3, Oudh Laws Act, 1876, and  

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failing the earlier clauses of the section which seem to have no  application,  “the Courts  shall  act  according to justice,  equity  and good conscience,” which has been adopted as the ultimate  test for all the provincial Courts in India.  Is it then contrary to  justice, equity and good conscience to hold an agreement of this  nature  to  be  binding?   Judging  the  matter  upon  abstract  grounds,  their  Lordships  would  have  thought  that  where  a  person  had  been  allowed  to  take  property  upon  the  express  agreement that it shall not be alienated outside the family, those  who  seek  to  make  title,  through  a  direct  breach  of  this  agreement,  could  hardly  support  their  claim by an appeal  to  those high sounding principles and it must be remembered in  this connection that family arrangements are specially favoured  in Courts of equity.  But apart from this it seems clear that after  the passing of the Transfer of Property Act in 1882, a partial  restriction upon the power of disposition would not, in the case  of a transfer inter vivos, be regarded as repugnant: see S.10 of  the Act.  In view of the terms of this section, and in the absence  of  any  authority  suggesting  that  before  the  Act  a  different  principle was applied by the Courts in India,  their  Lordships  think that it would be impossible for them to assert that such an  agreement as they are now considering was contrary to justice,  equity and good conscience.”

(emphasis supplied)

23. We may now notice two judgments in which the nature of the right of  

pre-emption has been considered.  In Bishan Singh v. Khazan Singh AIR  

1958 SC 838, this Court while interpreting the provisions of Punjab Pre-

Emption Act,  1913 referred to  the  judgment of  Mahmood J.,  in  Gobind  

Dayal v. Inayatullah ILR 7 Allahabad 775 and summed up law relating to  

right of pre-emption in the following words:

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“(1) The right of pre-emption is not a right to the thing sold but  a right to the offer of a thing about to be sold. This right is  called the primary or inherent right. (2) The pre-emptor has a  secondary right or a remedial right to follow the thing sold. (3)  It is a right of substitution but not of re-purchase i.e., the pre- emptor takes the entire bargain and steps into the shoes of the  original  vendee.  (4)  It  is  a  right  to acquire the whole  of  the  property  sold  and  not  a  share  of  the  property  sold.  (5)  Preference  being  the  essence  of  the  right,  the  plaintiff  must  have  a  superior  right  to  that  of  the  vendee  or  the  person  substituted in his place. (6) The right being a very weak right, it  can be defeated by all legitimate methods, such as the vendee  allowing  the  claimant  of  a  superior  or  equal  right  being  substituted in his place.”

24. In  Zila  Singh  v.  Hazari  (supra),  this  Court  again  considered  the  

nature of the right of pre-emption under the Punjab Act and observed:

“…………….. The correct  legal position is  that  the statutory  law of pre-emption imposes a limitation or disability upon the  ownership of a property to the extent that it restricts the owner’s  right of sale and compels him to sell the property to the person  entitled to pre-emption under the statute.  In other words, the  statutory  right  of  pre-emption  though  not  amounting  to  an  interest  in the land is a right which attaches to the land and  which  can  be  enforced  against  a  purchaser  by  the  person  entitled to pre-empt.”

25. In the light of the above, we shall now consider whether clause 11 of  

the Will executed by Smt. Ramakkal Ammal is violative of the rule against  

perpetuity.  If that clause is read in conjunction with clauses 4 and 10 of the  

Will,  it  becomes  clear  that  two  sisters  of  the  testator,  namely,  Savithiri  

Ammal and Rukmani Ammal were to enjoy house properties jointly during  

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their life time without creating any encumbrance and after their death, their  

male heirs were to get the absolute rights in ‘A’ and ‘B’ properties.  The  

male  heirs  of  two  sisters  could  alienate  their  respective  shares  to  other  

sharers on prevailing market value.  It can thus be said that Smt. Ramakkal  

Ammal had indirectly conferred a preferential right upon the male heirs of  

her sisters to purchase the share of the male heir of either sisters.  This was  

in the nature of a right of pre-emption which could be enforced by male heir  

of either sister in the event of sale of property by the male heir of other  

sister.  If the term ‘other sharers’ used in clause 11 is interpreted keeping in  

view the context in which it was used in the Will, there can be no manner of  

doubt  that  it  referred  to  male  heirs  of  other  sister.   The  only  restriction  

contained in clause 11 was on alienation of property to strangers.  In our  

view, the restriction which was meant to ensure that the property bequeathed  

by Smt. Ramakkal  Ammal does not go into the hands of third party was  

perfectly valid and did not violate the rule against perpetuity evolved by the  

English Courts or the one contained in Section 114 of the Indian Succession  

Act, 1925.    As a corollary, we hold that the trial Court and the High Court  

did not commit any error by relying upon clauses 10 and 11 of the Will for  

granting relief to respondent Nos.1 and 2.  

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26. The  argument  of  the  learned  counsel  for  the  appellants  that  the  

restriction enshrined in clause 11 was limited to the shares of the male heirs  

of two sisters sounds attractive in the first blush but a careful and conjoint  

reading of clauses 4, 10 and 11 makes it clear that the testator had intended  

to prevent  transfer of property to anyone other  than the heirs  of her two  

sisters.  In terms of clause 4, the two sisters were to enjoy the house property  

jointly  without  encumbering  the  same  during  their  lifetime.   After  their  

death, the male heirs of Savithri Ammal were to get ‘A’ property in equal  

shares and male heirs of Rukmani Ammal were to get ‘B’ property subject to  

the  condition  specified  in  clause  11  which  envisages  that  in  case  of  

alienation, the male heirs of either sister had to sell the property to other  

sharers as per the prevailing market value and not to strangers.  Since the  

intention of the testator was to impose a restriction on alienation of property,  

clauses 10 and 11 cannot be interpreted in a manner which would permit  

violation of that condition.

27. We  also  do  not  find  any  substance  in  the  argument  of  Shri  

Balakrishnan  that  in  view  of  the  compromise  decree  passed  in  O.S.  

No.473/1981, Rukmani Ammal became owner of the property in her own  

right  and  respondent  Nos.1  and  2  were  not  entitled  to  invoke  the  Will  

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executed by Smt. Ramakkal Ammal for questioning the sale deed executed  

in favour of the appellant.  The record of the case does not show that any  

such plea  was raised in the written statement  filed in O.S.  No.226/1983.  

From the impugned judgment it  is not clear that any such argument was  

raised  before  the  High  Court.   Therefore,  it  is  extremely  doubtful  that  

whether the appellant can be allowed to raise such a plea first time before  

this Court.  Moreover, for the reasons best known to him, the appellant did  

not produce before the trial Court, copy of the compromise decree passed in  

O.S. No.473/1981 and without going through the same it is not possible to  

hold that Rukmani Ammal had acquired independent right to sell the suit  

property to the appellant.

28. In the result, the appeal is dismissed.  However, the parties are left to  

bear their own costs.   

….………………….…J. [G.S. Singhvi]

…..…..………………..J. [Asok Kumar Ganguly]

New Delhi July 7, 2010.

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