ORDER 1. DEFENDANTS 4 AND 5 HAVE FILED THE PRESENT APPEAL WITH THE LEAVE OF THE COURT AGAINST THE FINAL JUDGMENT AND ORDER DATED 20-2-2002 PASSED BY THE HIGH COURT OF KERALA AT ERNAKULAM IN AS NO. 167 OF 1996. 2. BY THE IMPUGNED JUDGMENT THE HIGH COURT HAS ALLOWED THE APPEAL FILED BY THE RESPONDENT-PLAINTIFFS (HEREINAFTER REFERRED TO AS "RESPONDENTS 1 AND 2") AND REVERSED THE JUDGMENT AND THE DECREE PASSED BY THE TRIAL COURT. RESPONDENTS 1 AND 2 AND DEFENDANTS 1, 2 AND 3 (NOW RESPONDENTS 3, 4 AND 5) BELONG TO THE SAME FAMILY HAVING A COMMON ANCESTOR. THEY INHERITED THE PROPERTY JOINTLY WHICH WAS SUBJECTED TO A PARTITION IN THE YEAR 1966. 3. THE PLAINT SCHEDULE PROPERTY (HEREINAFTER REFERRED TO AS "THE PROPERTY") IS A PORTION OF THE PROPERTY ALLOTTED TO THE SHARE OF RESPONDENTS 3-5. THERE IS A PRE-EMPTION CLAUSE IN THE PARTITION DEED (EXT. A-1) WHICH PROVIDES THAT IF ANY PARTY WANTS TO SELL HIS PROPERTY, HE SHOULD FIRST OFFER IT TO THE MEMBERS OF THE THAVAZHI (A BRANCH OF THE FAMILY) IN WRITING AND THAT THE PROPERTY SHALL BE SOLD TO OUTSIDERS ONLY IF NO MEMBER OF THE THAVAZHI IS PREPARED TO ACCEPT THE OFFER WITHIN A PERIOD OF SIX MONTHS. THE RELEVANT PORTION OF THE PARTITION DEED (ANNEXURE P-L) READS AS UNDER: ". .. IT IS DECIDED THAT THE RIGHT TO SELL IN CASE AN OCCASION ARISES FOR ANYONE TO SELL THEIR PROPERTY; IT CAN BE SOLD ONLY AFTER GIVING NOTICE IN WRITING TO THE OTHER MEMBERS OF THE FAMILY AND ONLY WHEN THEY DO NOT COME FORWARD TO PURCHASE THE PROPERTY WITHIN A PERIOD OF SIX MONTHS, TO BE SOLD TO OTHERS." 4. RESPONDENTS 3 TO 5 SOLD THE PROPERTY TO THE APPELLANTS ON 30-9-1994. ACCORDING TO THE APPELLANTS, THE PROPERTY HAD BEEN SOLD TO THEM AFTER ASCERTAINING FROM THE MEMBERS OF THE FAMILY AS TO WHETHER ANYONE OF THEM WAS WILLING TO PURCHASE THE SAME. AS RESPONDENTS 1 AND 2 DID NOT EXPRESS THEIR WILLINGNESS TO PURCHASE THE PROPERTY, THE SAME WAS SOLD TO THE APPELLANTS. 5. RESPONDENTS 1 AND 2 FILED OS NO. ACCORDING TO THE APPELLANTS, THE PROPERTY HAD BEEN SOLD TO THEM AFTER ASCERTAINING FROM THE MEMBERS OF THE FAMILY AS TO WHETHER ANYONE OF THEM WAS WILLING TO PURCHASE THE SAME. AS RESPONDENTS 1 AND 2 DID NOT EXPRESS THEIR WILLINGNESS TO PURCHASE THE PROPERTY, THE SAME WAS SOLD TO THE APPELLANTS. 5. RESPONDENTS 1 AND 2 FILED OS NO. 390 OF 1994 SEEKING A DECLARATION THAT THE SALE OF THE PROPERTY MADE BY RESPONDENTS 3 TO 5 IN FAVOUR OF THE APPELLANTS WAS IN VIOLATION OF THE PRE-EMPTION CLAUSE IN THE DEED OF PARTITION WITH A PRAYER FOR RESALE OF THE PROPERTY IN THEIR FAVOUR TOGETHER WITH HANDING OVER OF THE POSSESSION TO THEM FOR A CONSIDERATION OF RS 40,000. 6. RESPONDENTS 3 TO 5 FILED A COMMON WRITTEN STATEMENT CONTENDING THAT THE PROPERTY WAS SOLD TO THE APPELLANTS AS THE FAMILY MEMBERS INCLUDING RESPONDENTS 1 AND 2 (THE PLAINTIFFS) WERE NOT WILLING TO PURCHASE THE SAME. THIS FACT WAS ASCERTAINED BY THEM THROUGH SHRI OOSMAN, ADVOCATE, WHO WAS LOOKING AFTER THE LEGAL MATTERS/AFFAIRS OF THE APPELLANTS. ACCORDING TO THEM, RESPONDENTS 1 AND 2 (THE PLAINTIFFS) HAVE WAIVED THEIR RIGHT TO PRE-EMPT THE LAND AND, THUS, THEY WERE ESTOPPED FROM CLAIMING THE RELIEF PRAYED FOR IN THE SUIT. THE APPELLANTS IN THEIR WRITTEN STATEMENT TOOK THE STAND THAT THEY WERE THE BONA FIDE PURCHASERS FOR CONSIDERATION AND THAT THE PROPERTY WAS PURCHASED BY THEM AFTER BEING SATISFIED THAT RESPONDENTS 1 AND 2 AND OTHER MEMBERS OF THE THAVAZHI (FAMILY) WERE NOT WILLING OR CAME FORWARD TO PURCHASE THE PROPERTY, THEY HAD SPENT RS 80,000 ON ITS IMPROVEMENT. THEY HAD ALSO CONSTRUCTED A COMPOUND WALL ON THE NORTHERN SIDE OF THE PROPERTY AND PUT UP A GATE. THEY HAD ALSO TAKEN STEPS TO START WORK FOR THE CONSTRUCTION OF A RESIDENTIAL HOUSE. 7. THE TRIAL COURT DISMISSED THE SUIT AND HELD THAT THE PROPERTY WAS SOLD TO THE APPELLANTS WITH THE KNOWLEDGE AND CONSENT OF RESPONDENTS 1 AND 2. IT WAS FOUND AS A FACT THAT THE PROPERTY WAS MEASURED BEFORE THE SALE. SINCE THE PLAINTIFFS WERE RESIDING IN THE ADJOINING PLOT ON THE WESTERN SIDE ABUTTING THE SUIT PROPERTY, THEY MUST HAVE HAD THE KNOWLEDGE REGARDING THE SALE OF THE PROPERTY. IT WAS ALSO HELD THAT THE ORIGINAL DOCUMENT WAS TAKEN BY RESPONDENTS 3 TO 5 FROM RESPONDENTS 1 AND 2 (THE PLAINTIFFS) FOR THE PURPOSE OF SALE. SINCE THE PLAINTIFFS WERE RESIDING IN THE ADJOINING PLOT ON THE WESTERN SIDE ABUTTING THE SUIT PROPERTY, THEY MUST HAVE HAD THE KNOWLEDGE REGARDING THE SALE OF THE PROPERTY. IT WAS ALSO HELD THAT THE ORIGINAL DOCUMENT WAS TAKEN BY RESPONDENTS 3 TO 5 FROM RESPONDENTS 1 AND 2 (THE PLAINTIFFS) FOR THE PURPOSE OF SALE. THE STORY PUT FORTH BY RESPONDENTS 1 AND 2 THAT, THE SALE DEED WAS TAKEN FROM THEM REPRESENTING THAT THE SAME WAS REQUIRED FOR THE PARTITION OF THE PROPERTY AMONGST RESPONDENTS 3 TO 5, WAS DISBELIEVED. IT WAS FURTHER HELD THAT RESPONDENTS 1 AND 2 WERE AWARE OF THE FACT THAT THE APPELLANTS HAD CONSTRUCTED THE COMPOUND WALL AS WELL AS THE GATE. SHRI OOSMAN, ADVOCATE, WHO APPEARED AS DW 5, STATED THAT HE HAD INFORMED PLAINTIFF 2 ABOUT THE IMPENDING SALE AND THE SAME WAS NOT OBJECTED TO. 8. THE PLAINTIFFS BEING AGGRIEVED FILED AN APPEAL IN THE HIGH COURT WHICH HAS BEEN ALLOWED BY THE IMPUGNED JUDGMENT. 9. THE HIGH COURT ACCEPTED THE FINDINGS RECORDED BY THE TRIAL COURT TO THAT EFFECT THAT RESPONDENTS 1 AND 2 WERE FULLY AWARE OF THE IMPENDING SALE OF THE PROPERTY; THAT THE PLAINTIFFS WERE LIVING ON THE WESTERN SIDE OF THE I PROPERTY; AND THAT THE APPELLANTS HAD CONSTRUCTED A COMPOUND WALL AS WELL AS : A GATE THEREON. THE JUDGMENT OF THE TRIAL COURT WAS SET ASIDE ONLY BECAUSE; RESPONDENTS 3 TO 5 FAILED TO GIVE A NOTICE IN WRITING IN SPITE OF THERE BEING A SPECIFIC STIPULATION IN THE PARTITION DEED (EXT. A-L) THAT INTIMATION OF SALE IN WRITING SHOULD BE GIVEN TO THE MEMBERS OF THE OTHER THAVAZHI BEFORE SELLING THE PROPERTY TO A STRANGER. 10. COUNSEL FOR THE PARTIES HAVE BEEN HEARD. 11. COUNSEL APPEARING FOR THE APPELLANTS RELIES UPON A JUDGMENT OF THIS COURT IN INDIRA BAI V. NAND KISHORE1 AND SOUGHT TO CONTEND THAT THE RESPONDENT-PLAINTIFFS WERE ESTOPPED BY THEIR CONDUCT FROM ASSERTING THEIR RIGHT OF PRE-EMPTION SIMPLY BECAUSE A NOTICE IN WRITING HAD NOT BEEN ISSUED TO THEM BEFORE THE SALE; THAT KNOWLEDGE OF THE IMPENDING SALE WAS SUFFICIENT TO DEFEAT THE RIGHT OF PRE-EMPTION WHICH WAS A FRAGILE RIGHT AND COULD BE DEFEATED AFTER IT WAS SHOWN THAT RESPONDENTS 1 AND 2 HAD THE KNOWLEDGE OF THE IMPENDING SALE OF THE PROPERTY. 12. 12. IN THE CASE CITED ABOVE, REVERSING THE JUDGMENT OF THE RAJASTHAN HIGH COURT, THIS COURT OBSERVED AS FOLLOWS: (SCC P. 670, PARA 3) "TRUE, NO NOTICE WAS GIVEN BY THE SELLER BUT THE TRIAL COURT AND THE APPELLATE COURT CONCURRED THAT THE PRE-EMPTOR NOT ONLY CAME TO KNOW OF THE SALE IMMEDIATELY BUT HE ASSISTED THE APPELLANT PURCHASER IN RAISING CONSTRUCTION WHICH WENT ON FOR FIVE MONTHS. HAVING THUS PERSUADED, RATHER MISLED, THE PURCHASER BY HIS OWN CONDUCT THAT HE ACQUIESCED IN HIS OWNERSHIP HE SOMERSAULTED TO GRAB THE PROPERTY WITH CONSTRUCTIONS BY STAKING HIS OWN CLAIM AND ATTEMPTING TO UNSETTLE THE LEGAL EFFECT OF HIS OWN CONDUCT BY TAKING RECOURSE TO LAW. TO CURB AND CONTROL SUCH UNWARRANTED CONDUCT THE COURTS HAVE EXTENDED THE BROAD AND PARAMOUNT CONSIDERATIONS OF EQUITY, TO TRANSACTIONS AND ASSURANCES, EXPRESS OR IMPLIED TO AVOID INJUSTICE." IT WAS FURTHER OBSERVED THEREIN: (SCC P. 672, PARA 5) "FAILURE TO SERVE NOTICE AS REQUIRED UNDER THE ACT DOES NOT RENDER THE SALE MADE BY VENDOR IN FAVOUR OF VENDEE ULTRA VIRES. THE TEST TO DETERMINE THE NATURE OF INTEREST, NAMELY, PRIVATE OR PUBLIC IS WHETHER THE RIGHT WHICH IS RENUNCIATED IS THE RIGHT OF PARTY ALONE OR OF THE PUBLIC ALSO IN THE SENSE THAT THE GENERAL WELFARE OF THE SOCIETY IS INVOLVED. IF THE ANSWER IS LATTER THEN IT MAY BE DIFFICULT TO PUT ESTOPPEL AS A DEFENCE. BUT IF IT IS RIGHT OF PARTY ALONE THEN IT IS CAPABLE OF BEING ABNEGATED EITHER IN WRITING OR BY CONDUCT. THE ACT DOES NOT PROVIDE THAT IN CASE NO NOTICE IS GIVEN THE TRANSACTION SHALL BE VOID. THE OBJECTIVE IS TO INTIMATE THE PRE-EMPTOR WHO MAY BE INTERESTED IN GETTING HIMSELF SUBSTITUTED. THE ACT DOES NOT DEBAR THE PRE-EMPTOR FROM GIVING UP THIS RIGHT. RATHER IN CASE OF ITS NON-EXERCISE WITHIN TWO MONTHS, MAYBE FOR THE FINANCIAL REASONS, THE RIGHT STANDS EXTINGUISHED. IT DOES NOT PASS ON TO ANYONE. NO SOCIAL DISTURBANCE IS CAUSED. IT SETTLES IN THE PURCHASER. GIVING UP SUCH RIGHT, EXPRESSLY OR IMPLIEDLY CANNOT THEREFORE BE SAID TO INVOLVE ANY INTEREST OF COMMUNITY OR PUBLIC WELFARE SO AS TO BE IN MISCHIEF OF PUBLIC POLICY." 13. COUNSEL FOR THE RESPONDENTS HAS NOT BEEN ABLE TO SHOW ANY JUDGMENT TO THE CONTRARY. NO SOCIAL DISTURBANCE IS CAUSED. IT SETTLES IN THE PURCHASER. GIVING UP SUCH RIGHT, EXPRESSLY OR IMPLIEDLY CANNOT THEREFORE BE SAID TO INVOLVE ANY INTEREST OF COMMUNITY OR PUBLIC WELFARE SO AS TO BE IN MISCHIEF OF PUBLIC POLICY." 13. COUNSEL FOR THE RESPONDENTS HAS NOT BEEN ABLE TO SHOW ANY JUDGMENT TO THE CONTRARY. IN THE PRESENT CASE AS WELL ALTHOUGH NO NOTICE IN WRITING WAS GIVEN BUT RESPONDENTS 1 AND 2 KNEW ABOUT THE IMPENDING SALE. THEY PERMITTED THE APPELLANTS TO MAKE IMPROVEMENT BY SPENDING A HUGE AMOUNT. THEY HAD GIVEN UP THEIR RIGHT TO PURCHASE THE PROPERTY IMPLIEDLY. 14. WE RESPECTFULLY AGREE WITH THE VIEW TAKEN BY THIS COURT IN INDIRA BAI V. NAND KISHORE1. THE APPEAL IS ACCEPTED, THE JUDGMENT AND DECREE PASSED BY THE HIGH COURT IS SET ASIDE AND THAT OF THE TRIAL COURT RESTORED. THE SUIT FILED BY RESPONDENTS 1 AND 2 STANDS DISMISSED. NO COSTS.