Holding

The clause restricting alienation to non‑family members is a valid, enforceable pre‑emptive right that does not contravene the rule against perpetuity, and the appeal is not deemed abated.

Summary

The testator’s 1951 Will gave life interest in two houses to her sisters and, after their deaths, vested absolute title in the male heirs, subject to a clause that any sale must be to the other male heirs at market price and not to strangers. After a partition, Rukmani Ammal and her son sold one house (property B) to K. Naina Mohamed, a stranger. The descendants of the other sister challenged the sale, invoking the restriction. The trial court upheld the restriction; a lower appellate court reversed, and the Madras High Court restored the trial court’s decree. The Supreme Court held that the restriction was a valid pre‑emptive right, did not violate Section 114 of the Succession Act (rule against perpetuity), and could be enforced against the purchaser. It also ruled that the second appeal did not abate despite the death of the vendors because the purchaser represented the estate under CPC s.2(11). Consequently, the appeal was dismissed.

Issues considered

The restriction in clause 11 of the Will violates the rule against perpetuity under S.114 of the Succession Act, 1925.
Whether the clause creates a enforceable right of pre‑emption among the male heirs.
Whether the purchaser can challenge the validity of the Will.
Whether the second appeal stood abated due to the death of the vendors and non‑impleadment of their legal representatives.

Legislation cited

Code of Civil Procedure, 1908s. 2(11)
Indian Succession Act, 1925s. 114
Order 22 of the CPCs. Rule 10, s. Rule 11, s. Rule 4, s. Rule 9
Transfer of Property Act, 1882s. 14, s. 40, s. 54

Subjects

Succession ActRule against perpetuityPre‑emption rightRestriction on alienationWill interpretationAbatement of appealCPC s.2(11)Life interestPartition suitSale deed

Judgment

[2010) 7 S.C.R. 927

K. NAINA MOHAMED (DEAD) THROUGH LRS. A
v.
A.M. VASUDEVAN CHETTIAR (D) BY LRS. & ORS.
(Civil Appeal No. 8365 of 2002)
JULY 7, 2010
B
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.)

Succession Act, 1925 - s. 114 - Rule against perpetuity
- Execution of Will - Life interest given to two sisters and after
their death absolute rights given to their male heirs - C
Restriction in the Will that alienation of the property was
permitted only among the male heirs of the two sisters and
not to strangers - In a compromise, partition of the property
in equal shares among the descendants of two sisters -
Thereafter, one of the sisters and her son selling the property D
to a stranger - Suit challenging the sale by descendants of
other sister - Vendors and vendee challenging the restriction
clause of the Will - Trial court decreeing the suit - Appeal
by the purchaser allowed by appellate court - High Court
restoring the decree - On appeal, held: The restriction in the E
Will is valid and does not violate rule against perpetuity - The
restriction was in the nature of right of pre-emption -
Purchaser having purchased the property in violation of the
restriction, cannot challenge the validity of the Will - Will -
Succession - Pre-emption.
F
Abatement - Abatement of appeal - Defendant-vendors
of the property selling the property to defendant-vendee -
Vendors not challenging the decree - Vendee alone filing
appeal - Death of vendors during pendency of second appeal
- Plea that appeal stood abated - Held: Since vendee was G
representing the estate of the deceased, in view of s. 2 (11)
CPC second appeal cannot be treated as having abated -
Moreover, the plea, having been raised for the first time
before Supreme Court, cannot be allowed to be raised - Plea
927 · H
928 SUPREME COURT REPORTS [2010] 7 S.C.R.

A - Code of Civil Procedure, 1908 - s. 2 (11) - Practice and
Procedure.

The original owner of the suit property executed a
Will creating life interest in favour of her two sisters 'S'
and 'R' with a stipulation that after their death, their male
8
heirs would acquire absolute rights in properties 'A' and
'B' respectively subject to the rider that they would sell
the property to other sharers as per market value and not
to strangers. After death of one of the sisters i.e. 'S', one
of her sons filed a partition suit. The parties including 'R'
C and her son settled the matter out of court, whereby it
was decided that sons of 'S' would divide the property
'A' amongst themselves and property '8' would be
absolute property of 'R' and her descendants.

D Thereafter, 'R' and her son sold the property 'B' (suit
property) to the appellant. Respondent Nos. 1 and 2, the
descendants of 'S', filed a suit challenging the same.
They pleaded that in view of restriction in the Will, the
property should have been sold to them. 'R' and her son
E took the plea that Will was void as the same was against
the 'rule against perpetuity' and the law of alienation.
Appellant-purchaser also challenged the validity of the
Will. Trial court held that clause 11 of the Will did not
violate the rule against perpetuity and the same was valid,
F and thus decreed the suit. 'R' and her son did not
challenge the decree. Appeal filed by the appellant-
purchaser, challenging the decree was allowed by lower
appellate court. It held that the suit was premature and
that after creating absolute right in favour of her two
G sisters, the executant did not have the power to impose
restriction on alienation of their respective shares. In
second appeal, the decree passed by the trial court was
restored by High Court.
In the instant appeal, the appellant-purchaser
H
K. NAINA MOHAMED (DEAD) THROUGH LRS. v. AM. 929
VASUDEVAN CHETTIAR (D) BY LRS.

contended that since 'R' and her son died during the A
pendency of the second appeal, the appeal stood abated
because legal representatives of the deceased were not
brought on record; that the restriction on the alienation
of the property was to operate only within the respective
branches and not on the male heirs of the other branch; B
that the restriction on the alienation was violative of the
rule against perpetuity; and that in view of the
compromise in the earlier suit, 'R' and her son became
absolute owners of 'B' property and their rights cannot
be restricted by the conditions enshrined in the Will.

Dismissing the appeal, the Court

HELD: 1.1. Neither the factum of death of 'R' and. her
son was brought to the notice of the Judge who decided
the appeal nor any argument was made before him that D
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
'R' and her son who had also signed the sale deed as one
of the vendors did not challenge the judgment and E
decree of the trial court and only the appellant had
questioned the same by filing an· appeal. Son of 'R' 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
F
conspicuously silent whether such a plea was raised and
argued before the High Court. Therefore, the appellant
cannot 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 G
in clause 11 of the Will. [Para 14] [940-A-E]
1.2. The definition of the term 'legal representative'
contained in Section 2(11) CPC also supports the plea
that the second appeal cannot be treated as having
abated because the appellant who had purchased the· H
930 SUPREME COURT REPORTS [2010] 7 S.C.R.

A property was representing the estate of the deceased.
[Para 15) [941-B-D)

Mohd. Arif v. Allah Rabbul Alamin AIR 1982 SC 948;
Ghafoor Ahmad Khan v. Bashir Ahmed Khan AIR 1983 SC
123, relied on.
8
State of Punjab v. Nathu Ram AIR 1962 SC 89; Madan
Naik v. Hansubala Devi AIR 1983 SC 676; Amba Bai v.
Gopal (2001) 5 SCC 570; Amar Singh v. Lal Singh (1997)
11 sec 570, distinguished.
c Haradhone v. Panchanan AIR 1943 Calcutta 570;
Umrao v. Kapuria AIR 1930 Lahore 651; Deokuer and Anr.
v. Sheoprasad Singh and Ors. AIR 1966 SC 359, referred
to.
D 2.1. The restriction contained in clause 11 of the Will
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.
E The male heirs of the two sisters 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
F of the Will should be treated as void because it violates
the rule against perpetuity. [Para 20) [950-G-H; 951-A-B)

Ram Baran Prasad v. Ram Mohit Hazra AIR 1967 SC
744; Shivji v. Raghunath 1997 (10) SCC 309; Mohammad
Raza and Ors. v. Mt. Abbas Bandi Bibi AIR 1932 PC 158,
G relied on.
Re. MA CLEA Y 1875 M. 75, referred to.

http : II www.lawcom.gov.uk - referred to.
H 2.2. Executor of the Will had indirectly conferred a
K. NAINA MOHAMED (DEAD) THROUGH LRS. v. A.M. 931
VASUDEVAN CHETIIAR (D) BY LRS.
preferential right upon the male heirs of her sisters to A
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 B
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. The
restriction which. was meant to ensure that the property c
bequeathed 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. Thus the trial court and the High Court did not D
commit any error by relying upon clauses 10 and 11 of
the Will for granting relief to respondent Nos.1 and 2.
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. [Paras 25 and 26) [959-G-H; E
960-A-G]

Bishan Singh v. Khazan Singh AIR 1958 SC 838; Zila
Singh v. Hazari AIR 1979 SC 1066, relied on.
F
3. It is not correct to say that in view of the
compromise decree passed in the earlier suit, 'R' became
owner of the property in her own right and respondent
Nos.1 and 2 were not entitled to invoke the Will executed
by 'R' for questioning the sale deed executed in favour G
of the appellant. The record· of the case does not show
that any such plea was raised in the written statement
filed in the present suit. 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 H
932 SUPREME COURT REPORTS [2010] 7 S.C.R.

A 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
the earlier suit and without going through the same, it is
not possible to hold that 'R' had acquired independent
B right to sell the suit property to the appellant. [Para 27)
[960-H; 961-A-C]

Case Law Reference:

AIR 1982 SC 948 Relied on. Para 15
c AIR 1983 SC 123 Relied on. Para 15

AIR 1943 Calcutta 570 Referred to. Para 15

AIR 1962 SC 89 Distinguished. Para 15
D AIR 1983 SC 676 Distinguished. Para 15

2001 (5) sec 510 Distinguished. Para 15

1997 (11) sec 510 Distinguished. Para 15
E AIR 1930 Lahore 65 Referred to. Para 15

AIR 1967 SC 744 Relied on. Para 19

1997 (10) sec 309 Relied on. Para 19

F 1875 M. 75 Referred to. Para 21

AIR 1932 PC 158 Relied on. Para 22

AIR 19513 SC 838 Relied on. Para 23

G AIR 1979 SC 1066 Relied on. Para 24

CIVIL APPELLATE JURISDICTION : Civil Appeal No.
8365 of 2002.

From the final Judgment and Order dated 3.1.2001 of the
H High Court of Judicature at Madras in S.A. No. 360 of 1989.
K. NAINA MOHAMED (DEAD) THROUGH LRS. v. AM. 933
VASUDEVAN CHETTIAR (D) BY LRS.

S. Balakrishnan, Subramonium Prasad and Sree Narain A
' I
Jha for the Appellants.

R. Sundaravaradhan, P.B. Suresh and Vipin Nair (for
Temple Law firm) for the Respondents.

The Judgment of the Court was delivered by B

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, C
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. o
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').
E
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 F
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, 1O and
11 of the Will and details of 'A' and 'B' properties (English
translation of the Will and details of the properties were made G
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 H
934 SUPREME COURT REPORTS [2010) 7 S.C.R.

A 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
B 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
c 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
D 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
E 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

F 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
G 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
H
K. NAINA MOHAMED (DEAD) THROUGH LRS. v. A.M. 935
VASUDEVAN CHETTIAR (D) BY LRS. [G.S. SINGHVI, J.]

SOUTH BY : Survey No.2067 A

EAST BY : Survey No.2065 and

WEST : Survey No.2088

situate within the Registration District of Tirchirapalli and B
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 C
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 1-2 feet
on the Eastern side from South to North and 8 feet on the D
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. Krishnam~rthy filed E
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 c.. ·d his brothers will divide 'A' property F
among themselves and ·a· propP.rty will be the absolute property
of Smt. Rukmani Ammal and her descendants.

4. Soon after disposal of O.S. No.473of1981, Rukmani
Ammal and her son, A.B.M. Ramanathan Chettiar executed
registered sale deed dated 9.12.1982 in favour of the appellant G
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 H
936 SUPREME COURT REPORTS [2010] 7 S.C.R.

A and defendants in the suit be directed to execute sale deed in
their favour.

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
8
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
C 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 -
D 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
E alienation of the property to the strangers by asserting that the
said clause violated the rule against perpetuity.

·1. 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
F 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.

G 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.
H The trial Court further held that K. Naina Mohamed had
K. NAINA MOHAMED (DEAD) THROUGH LRS. v. A.M. 937
VASUDEVAN CHETIIAR (D) BY LRS. [G.S. SINGHVI, J.]

purchased the property with notice of the clause relating to pre- A
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 8
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 C
Begum v. Mou/a 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 toimpose restriction on
alienation of their respective shares. The learned lower
appellate Court also referred to the judgment of this Court in D
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 E
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 F
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' G
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.

12. Shri S. Balakrishnan, learned senior counsel appearing H
938 SUPREME COURT REPORTS [2010] 7 S.C.R.

A 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
B deceased were not brought on record. Shrf 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
c (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
0
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.
E 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
F 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.473of1981, Rukmani Ammal
and her son became absolute owner of 'B' property and their
rights cannot be regulated or restricted by the conditions
G 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
H a declaration that the second appeal filed by respondent Nos.1
'
K. NAINA MOHAMED (DEAD) THROUGH LRS. v. A.M. 939
VASUDEVAN CHETTIAR (D) BY LRS. [G.S. SINGHVI, J.]

and 2 stood abated on account of non-impleadment of the legal A ·
representatives of Rukmani Ammal and her son, who died
during the pendency thereof. Learned senior counsel submitted
"that rules contained in Order XXll 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 B
did not abate on account of death of Rukmani Ammal and her
son, A.B.M. Ramanathan Chettiar because iri terms of the Will
executed by Smt. Ramakkal An\mal, Rukmani Ammal got life
interest only and her son, who became absolute owner neither
challenged the decree passed by the trial Court nor contested c
the second appeal. Learned counsel then referred to the
definition of term 'legal representatives' contained in Section
2(11) of the Code of Civil P\qcetlure .and argued that the
appellant, who had purchased the suit property will be deemed
to be legal representative,·6f the deceased because he p
represented their estate. In support of this argument, Shri
Sundaravaradhan relied upon the judgments of this Court fn
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 E
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 F
Prasad v. Ram Mohit Hazra AIR 1967 SC 744 and Zita 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
of the rule against perpetuity. G

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 H
940 SUPREME COURT REPORTS [2010] 7 S.C.R.

A 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
B 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
c A.B.M. Rama .. 1than 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
0
been raised but the memo of appeal is conspicuously silent
whether such a plea was raised and argued 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
E 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.
F 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
G not been brought on record, an order could have been passed
under Rule 4 of Order XX.II which reads as under:

"The Court whenever it thinks fit, may exempt the plaintiff
from the necessity of substituting the legal representatives
H. of any such defendant who has failed to file a written
K. NAINA MOHAMED (DEAD) THROUGH LRS. v. A.M. 941
VASUDEVAN CHETTIAR (D) BY LRS. [G.S. SINGHVI, J.]

statement or who, having filed it, has failed to appear and A
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." B

15. The definition of the term 'legal representative'
contained in Section 2(11) of the Code of Civil Procedure also
supports the argumeat of the learned counsel for the
respondents that the second appeal cannot be treated as
having abated because the appellant who had purchased the C
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 D
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 E
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 F
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 G
having abated and Mohammad Arif was entitled to
prosecute the appeal."

(emphasis supplied)

In Ghafoor Ahmad Khan v. Bashir Ahmed Khan (supra), H
942 SUPREME COURT REPORTS [2010] 7 S.C.R

A 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 matter of
B appeal) to his wife by way of gift and as such the case would
fall under Order XXll 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
C 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.
D 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
E 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
F 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 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
G 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
H
K. NAINA MOHAMED (DEAD) THROUGH LRS. v. A.M. , 943
VASUDEVAN CHETTIAR (D) BY LRS. [G.S. SINGHVI, J.]

all subordinate tenures and he did not have the right to institute A
a proceeding under Section 105 of the Act. The High Court
then referred to Order XXll 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 8
having been created pendente lite the defendants-
appel/ants 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. C
(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 D
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 0. 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 E
liable Jo 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, F
therefore, the right to appeal survived the deceased
plaintiff and it did survive against 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 G
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. H
944 SUPREME COURT REPORTS [2010] 7 S.C.R.

A 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
B survive against the other brother because the award was joint
and indivisible. After taking note of the provisions contained in
Ordeir XXll 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
c 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
D 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
E 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 contradictory to the decree
F which had become final with respect to the same subject-
m atte r 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)
G 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
H
K. NAINA MOHAMED (DEAD) THROUGH LRS. v. A.M. 945
VASUDEVAN CHETTIAR (D) BY LRS. (G.S. SINGHVI, J.]

the learned Single Judge of Patna High Court who set aside A
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 XXll Rules 4 and 11 CPC and observed: B

"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 C
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 D
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 E
appeal, the court may decline to set aside the abatement.
Then the net 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 F
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 G
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
H

,-,,_-
946 SUPREME COURT REPORTS [2010] 7 S.C.R.

A 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
B 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
c 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 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
0
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
E 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 plaintiffs suit for specific performance was decreed.
F 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
G 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
H · where more than one person was entitled to property covered
K. NAINA MOHAMED (DEAD) THROUGH LRS. v. AM. 947
VASUDEVAN CHETTIAR (D) BY LRS. [G.S. SINGHVI, J.]

under the Will, the relief is joint and inseparable and if the A
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 s
stood abated.

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 C
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. Ra.manathan Chettiar, despite the fact that
the appellant, who represented the estate of the deceased i.n
his capacity as a purchaser had not only challenged the D
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 · E
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 F
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 G
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
H
948 SUPREME COURT REPORTS [2010] 7 S.C.R.

A 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
8
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
C 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."
D
However, as will be seen hereinafter, the principle
1mshrined in the aforesaid section does not have any bearing
on this case.

19. In Ram Baran Prasad v. Ram Mohit Hazra (supra),
E this Court considered whether covenant of pre-emption
contained in an arbitration award violates the rule against
perpetuity and whether the same is binding on assigne~s or
successor-in"interest of the original contracting parties. The
factual matrix of that case was that two brothers, Tulshidas
F 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
G 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
H
K. NAINA MOHAMED (DEAD) THROUGH LRS. v. A.M. 949
VASUDEVAN CHETTIAR (D) BY LRS. [G.S. SINGHVI, J.]

or transferring any portion of his share, shall offer A
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
8
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 C
defendant No.1. The trial Court held thaUhe covenant of pre-
emption was not hit by the rule against 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 D
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 E
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
F
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, G
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 H
...
950 SUPREME COURT REPORTS (2010] 7 S.C.R.

A 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 because Section 40 of the statute does not
make the covenant enforceable against the assignee on
B 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.
c 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
0
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
E 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."
F
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
G 'B' properties respectively subject to the condition 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
H
K. NAINA MOHAMED (DEAD) THROUGH LRS. v. A.M. 951
VASUDEVAN CHETTIAR (D) BY LRS. [G.S. SINGHVI, J.]
restriction was to ensure that the property does not go out of A
the families of the two sisters. The male' heirs of Savithri Ammal
and Rukrnani 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 B
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 C
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 D
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."
E
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 devis.ee under the Will
contracted with Sir George Macleay for the sale to him of the
property comprised in the devise, wit.h a proviso that the F
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 G
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
beingJepugnant to the quality of the estate. Sir G. Jessel, M.R. H
952 SUPREME COURT REPORTS [2010] 7 S.C.R.

A 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
B
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
c 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 any of his heirs or of the issues of
D 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.
E 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
F 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
G 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
H effect of the frame of the condition. That is the effect of the
K. NAINA MOHAMED (DEAD) THROUGH LRS. v. A.M. 953
VASUDEVAN CHETTIAR (D) BY LRS. [G.S. SINGHVI, J.]

rule as laid down by Littleton. Then Coke says (1 ): "If a 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 B
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 c
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. 0
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
substantially: it is a question of substance, and not of mere
fo~. E

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 F
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 G
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
H
954 SUPREME COURT REPORTS [2010] 7 S.C.R.

A 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,
B 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
c 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
D 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
E 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 alienation was very much more restricted in Doe
F 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;
G 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 deviser; and if she did
H not, that the heir might enter for the condition broken." Now
K. NAINA MOHAMED (DEAD) THROUGH LRS. v. A.M. 955
VASUDEVAN CHETIIAR (D) BY LRS. [G.S. SINGHVI, J.]
that is a stronger case still; because, as Lord Ellenborough A
and the other Judges of ii 1e 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 deviser;
that is, she could not convey it to anybody else; it was B
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 c
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
0
class was limited to one of the sons of the deviser; 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.
E
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 F
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 does not conflict with the older
authorities to which I have had occasion to refer. I must G
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 H
956 SUPREME COURT REPORTS [2010] 7 S.C.R.

A 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.

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

(emphasis supplied)
c
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
0 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
E 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:

F "............ But assuming in the appellants' favour that she
took an estate of inheritance, it was nevertheless one
saddled, under the express w6rcfs of the document, with
a restriction against alienation to "a stranger". Their
Lordships have no doubt that "stranger" means anyone
G who is not a member of the family, and the appellants are
admittedly 6trangers 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.
H
K. NAINA MOHAMED (DEAD) THROUGH LRS. v. AM. 957
VASUDEVAN CHETTIAR (D) BY LRS. [G.S. SINGHVI, J.]

On the assumption that Sughra Bibi took under the terms A .
· 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 B
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
Sing h's case (1) is of no assistance to the appellants, for c
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 0
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 E
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. F

The law by which this question must be judged is their
Lordships think prescribed by S.3, Oudh Laws Act, 1876,
and failing the earlier clauses of the section which seem
to have no application, "the Courts shall act according to G
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 H

.. _,., . ;
958 SUPREME COURT REPORTS [2010] 7 S.C.R.

A 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
B to thc1se 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
c of disposition would not, in the case of a transfer inter
vivas, 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
D that it would be impossible for them to assert that such an
agreeiment as they are now considering was contrary to
justice, equity and good conscience."

(emphasis supplied)

E 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.
F lnayatullah ILR 7 Allahabad 775 and summed up law relating
to right of pre-emption in the following words:

"(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
G 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
H
K. NAINA MOHAMED (DEAD) THROUGH LRS. v. A.M. 959
VASUDEVAN CHETTIAR (D) BY LRS. [G.S. SINGHVI, J.]

property sold. (5) Preference being the essence of the A
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." B

24. In Zi/a 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 c
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 entitied to pre-emption under the statute. In
other words, the statutory right of pre-emption though not D
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 . E
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
F
their life time without creating any encumbrance an~ after their
death, their male heirs were to get the absolute rights io '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 G
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
H
960 SUPREME COURT REPORTS [2010] 7 S.C.R.

A 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
8 ensure that the property bequeathed by Smt. Ramakkal Ammal
does not go into the hands of third party was perfectly valid and
did riot 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
c 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.

26. The argument of the learned counsel for the appellants
that the restriction enshrined in clause 11 was limited to the
D 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
E 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
F 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
G condition.

27. We also do not find any substance in the argument of
Shri Balakrishnan that in view of the compromise decree
pass1~d in O.S. No.473/1981, Rukmani Ammal became owner
of the property in her own right and respondent Nos.1 and 2
H
K. NAINA MOHAMED (DEAD) JHROUGt;I LRS. v. A.M. 961
VASUDEVAN CHETTIAR (D) BY LRS. [G.S. SINGHVI, J.]

were not entitled to inyoke,.:th_e .Will executed py .~mt: Ram(lkkal A
Ammal for questioning the sale deed executed in favour of the
appel)ant. Therecorq ofJhe\c9~e cioes:noti>~owjhat any such
plea was raised i[l tb~,writt~n s.!ateme.~t,filed .in O.S. No.226/
1983. From the impugned judgment it is not Glear that any such
argument was raised before; th'e ·Hrgh Court Therefore, it is B
extremely doubtfulithat ,whether-the appellant, can_;Abe
\ • "• .. 0, " ' •
allowed
• ' • 1 ~ ' ' • '' ·~-" '• , ~ .'" ', o

to raise such a plea first time before this Court. Moreover, for
the reasons best known ,to him, the appellant,did not produce
"I..~ 1 ' · ·· . .,- · · ,'·,\- · ·,·~:'.· i":,. r• _'\.i\ ""'-~ •.·.:u·\~.' i1l. .· 1" \
1

?etor.e the trial Co_urt_, co~Y,.?f t~~.c~_f!lWO~,ise -~~?r,~~ P~.s~~d
mp.~:.N?.473/1~81 and ~1.th~u!,~°'1~g ,t.hr~u"g~the sar:ne_1t.1~. g
not possible tb hold that Rukmani 'Ammal had acquired
in~~pencient right to sell th~ 5-~iCr}roperty to' th~ ap'p'e'lla'ni. ' ..
,,\, <.:' ~ ·,, ' < ·; l''
·• l ~~- ·-, ':\ !' '

<-' 28. In the result,> the appeal is dismissed. However, the·
parties are left to bear their. own cbsts: ,• ; '' '
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K.K.T. - r\· . '·' · .. ·. ~ppeal dismissed,,

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