IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 RSA.No. 1181 of 2008() ---------------------- AS.125/1999 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.119/1993 of SUB COURT,NEYYATTINKARA .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ---------------------------------------- 1. SUSEELAN, S/O.KRISHNAN, AGED 45, RESIDING AT ARCHANA, AMBALAMUKKU, PEROORKADA, THIRUVANANTHAPURAM. 2. CHANDRIKA, D/O.PONNAMMA AGED 47, RESIDING AT ARCHANA, AMBALAMUKKU, PEROORKADA, THIRUVANANTHAPURAM. BY ADV. SRI.D.KISHORE RESPONDENTS: RESPONDENTS/DEFENDANTS: -------------------------------------- 1. SADASIVAN, S/O.PARAMESWARAN, AGED 58, T.C.11/477, NANTHANCODE, TRIVANDRUM. 2. RAJENDRAN, S/O.KRISHNAN, AGED 28, T.C.11/477, NANTHANCODE, TRIVANDRUM. 3. RAJALAKSHMY, D/O.PONNAMA, AGED 28, T.C.11/477, NANTHANCODE, TRIVANDRUM. 4. AJITH, S/O.KRISHNAN, AGED 25, T.C.11/477, NANTHANCODE, TRIVANDRUM. 5. BEENA, W/O.LATE RENJITH, AGED 24, T.C.11/477, NANTHANCODE, TRIVANDRUM. 6. SHAILAJA, D/O.SAVITHRI, AGED 26, RESIDING AT USHAS, KIZHAKKUMBHAGOM MURI, KIZHAKKUMBHAGOM VILLAGE, KAZHAKUTTAM. 7. BURKANS, S/O.ALBI, VALIYATHOPPU VEEDU, POZHIYOOR DESOM, KULATHOOR VILLAGE, NEYYATTINKARA TALUK. 8. SADANANDAN, S/O.KRISHNAN, AGED 58, BHARATHI SADANAM, ARUMANOORTHURA DESOM, THIRUPURAM VILLAGE, NEYYATTINKARA. 9. VIJAYANADA KUMARI AMMA, AGED 52, TEACHER, D/O.GOMATHY AMMA, BHARATHY SADANAM ARUMANOORTHURA DESOM, THIRUPURAM VILLAGE, NEYYATTINKARA. 10. RAVEENDRAN NAIR, AGED 34, S/O.SANKARA PILLAI, THUNDUVILAKATHU VEEDU, EDAKKODU DESOM, NEMOM VILLAGE, THIRUVANANTHAPURAM TALUK. 11. SANTHI VIJAYABHARATHI, AGED 24, W/O.RAVEENDRAN NAIR, BHARATHI SADANAM, ARUMANOORTHURA DESOM, THIRUPURAM VILLAGE, NEYYATTINKARA. 12. CHANDRAHASAN ALIAS PODIYAN, RESIDING AT MEDAYIL VEEDU, ARUMANOOR, THIRUPURAM VILLAGE, NEYYATTINKARA TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No.1181 of 2008 ---------------------------------------- Dated this the 16th day of June, 2009 JUDGMENT The appellants herein are the plaintiffs in O.S. No. 119/1993 on the file of the Sub court, Neyyattikara. This appeal is directed against the judgment and decree in A.S. 125/1999 on the file of the District Court, Thiruvananthapuram . The suit was instituted for partition, pre-emption and for consequential relief of prohibitory injunction. Subsequently the claim for partition was abandoned. The suit was dismissed by the trial court and confirmed in appeal by the lower appellate court. Hence this Second Appeal. The parties hereinafter referred to as plaintiffs and defendants as arrayed in the Suit. 2. Admittedly the plaintiffs and defendants 1 to 7 were co-owners of the plaint schedule properties and some other properties. . According to the plaintiffs in the registered partition deed executed in the year 1952, item No. 1 of the plaint schedule property was excluded from partition and a right of pre-emption was created in respect of that item and the said partition deed prohibits the alienation of that item of property to strangers/other than to the members of the family. The suit was resisted by the 8th defendant and additional 9th defendant. During the pendency of the Suit defendants 2 and 3 expired and their legal representatives were impleaded as additional defendants 10 R.S.A. No. 1181 of 2008 -2- to 14. Defendants 1 to 7 and additional defendants 10 to 14 remained exparte. The 8th defendant is the assigner of item No.1 of the plaint schedule property. The additional 9th defendant took the assignment from the 8th defendant . 8th defendant and additional 9th defendant jointly contended that the plaintiffs are not entitled for enforcement of pre- emption right in respect of the property and the suit is hopelessly barred by limitation. 3. Before the trial court, both parties let in both oral and documentary evidence. 4. It was observed by the courts below that at the time of execution of Ext.A1 partition deed dated 5.5.1952, the Transfer of property Act has not been made applicable to Travancore and that it was extended later on in 1955. Hence on the date of Ext.A1 partition deed the principles applicable to Ext.A1 were justice, equity and good conscience as laid down in the decision of this Court reported in Chothy Theyyathan Vs. John Thomas ( 1997 (1) KLT 464). After referring to the decision reported in Ram Baran Prasad Vs. Ram Mohit Hazra (AIR 1967 SC 744) the courts below held that the rule against the perpetualities would ordinarily annul any covenant of pre-emption prior to the commencement of the Transfer of Property Act and hence the clause in Ext.A1 partition deed on the basis of which the suit claim was made would have to be R.S.A. No. 1181 of 2008 -3- treated to be void. For the aforesaid reasons the courts below held that the said item of property has not assumed the character of pre-emptional property. The courts below also held that the suit was hopelessly barred by limitation and the plaintiffs' claim for pre-emption was without any merit The questions raised by the plaintiffs in the suit were answered correctly by the trial court as well as the lower appellate court . I do not find any reasons to interfere with the judgments and decrees passed by the courts below. There is no scope for this Court to invoke Section 100 of the C.P.C. No question of law much any substantial question of law arises for consideration in this appeal. This appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No.1181 of 2008 ---------------------------- JUDGMENT 16th June , 2009