KANAKAMMAL Vs. K A VAJJIRAVELU

JUDGEMENT

(1.) THE first defendant who was unsuccessful in both the Courts below is the appellant in this second appeal.

(2.) THE first respondent brought O.S.No.155 of 1976 on the file of the District Munsif� s Court, Tirupattur, for setting aside the sale deed dt. 1.6.1973 executed by the second respondent (second defendant) in favour of the appellant (first defendant) under Ex.B-1 and for an injunction restraining the appellant from interfering with the suit property in any manner by altering or making any construction in the suit property. To support the said claim the first respondent relied upon Ex.A-1, settlement deed executed by the father of the parties in favour of his five sons. THE plaintiff and the second respondent are two among them. Ex.A-1 besides conferring absolute right on the donees, in the later part provided that if any of his five sons were to dispose of the respective property that was allotted to him therein out of necessity, such son shall sell the same to any one among his brothers according to the market rate. It is needless to state that the covenant has only created a right of pre-emption in favour of every one of the sons as against the rest if that son were to alienate the property that was gifted to him under Ex.A-1. It is common ground that under Ex.B-1 dt. 1.6.1973, the second respondent sold the property to the appellant and according to the first respondent, no offer at all was made to him by the second respondent before he sold the same under Ex.B-1. THE first respondent further contends that the second respondent is bound by the covenant contained in Ex.A-1 and that therefore, any sale more so Ex.B-1 sale, will not prevail over his right of pre-emption unless there had been a notice by the second respondent offering the property for sale to him and to his brothers. It is on that basis that the first respondent had claimed the two reliefs aforesaid.

(3.) MR.Sridevan, learned counsel for the appellant, raises four points before me one of them being the substantial question of law formulated at the time of the admission of the second appeal. They are: