K. NAINA MOHAMED (DEAD) THROUGH LRS. versus A.M. VASUDEVAN CHETTIAR (D) BY LRS. & ORS.

Citation: [2010] 7 S.C.R. 927 · Decided: 07-07-2010 · Supreme Court of India · Bench: G.S. SINGHVI · Disposal: Dismissed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2010) 7 S.C.R. 927 
K. NAINA MOHAMED (DEAD) THROUGH LRS. 
v. 
A.M. VASUDEVAN CHETTIAR (D) BY LRS. & ORS. 
(Civil Appeal No. 8365 of 2002) 
JULY 7, 2010 
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.) 
Succession Act, 1925 - s. 114 - Rule against perpetuity 
A 
B 
- 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. 
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 
F 
- 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' 
8 
and 'R' with a stipulation that after their death, their male 
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; 
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. N

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