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(2007) 5 MLJ 1314 (Mad)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Present : Ms. Prabha Sridevan, J.
Case Number(s) : A.S. Nos. 161 & 162 of 1991
Judgement Date :
Tuesday 26th of June 2007
| A. Ismail Khan (died) and Others | .....Appellant(s) | | Versus | | | Lalitha Devi and Others | .....Respondent(s) |
(A) Transfer of Property Act (4 of 1882), Section 10 - Mahomedan Law - Family Arrangement - Partition Deed - Five sharers - Condition in deed, if and when sharer wants to sell, to sell his/her share, only to other sharers - Such restraint on alienation, hit by Section 10, Transfer of Property Act, if - A pre-emptive right given under the document not hit by Section 10, Transfer of Property Act - Said restraint only partial restraint - Such restraint on alienation to third parties valid in law.
(B) Family arrangement - Muslim Family - Partition deed - Condition, if when share sold, to be sold only to other sharers - Two of five sharers selling their shares to outsiders plaintiffs - Defendants denying plaintiff's title - Suit for declaration and possession by plaintiffs - Defendants appellants contention, by partition deed sale of property to outsiders prohibited - Right to pre-emption created - Sale could be effected only between sharers - Parties agreed to said terms when they signed deed - Held, all parties agreed to partial restraint on alienation - Plaintiff knew about said restraint on alienation - Yet purchased suit property - No evidence to show other sharers refused to buy suit property - Sale in favour of plaintiffs invalid - Plaintiff not entitled to declaration.
(C) Deed - Construction of - Muslim family - Family arrangement - Property partitioned among sons and daughter - Clause in deed imposing partial restraint on alienation - Lower Court finding said deed gift deed, erroneous - All parties referred to Exhibit B-1 deed as partition deed - Not as gift deed.
Ratio(s) Decidendi
I. "A pre-emptive right given under a document does not offend Section 10 of the Transfer of Property Act; it is only a partial restraint. Therefore, the restraint on alienation to third parties under Exhibit B-1 deed is valid in law and the sale in favour of the plaintiffs, invalid."
II. "It is well settled that the nomenclature of the document would not decide the nature of the document if the parties had understood the character of the document and the rights and liability derived therefrom in one manner. All the parties referred to Exhibit B-1 deed as partition deed, not as gift deed. The finding of the Lower Court that it was a gift deed, was erroneous."
Cases Referred
Atika Begum v. Haji A. A. M. Abdulla : (2002) 2 MLJ 4
Govt. of A. P. v. M. Krishnaveni (2006) 7 SCC 365
Mohammad Raza v. Mt. Abbas Bandi Bibi AIR 1932 PC 158
P. L. N. Paramasivam v. P. K. Ramaswami Gounder : (1970) 1 MLJ 592
Ramkishorelal v. Kamal Narayan AIR 1963 SC 890
Zoroastrian Co-operative Housing Society Ltd. v. District Registrar, Co-operative Societies (Urban)
AIR 2005 SC 2306
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