The plaintiffs are the appellants. They filed the suit for declaration of their pre-emption right and for recovery of possession of the plaint properties. The averments in the plaint are as follows - The plaintiffs are brothers and the second defendant is their sister. One Valliammal is the mother of the plaintiffs and the second defendant. The family owned considerable properties and a written partition took place on 17-2-1960. The sharers agreed therein that even after the partition, the sharers should not sell their shares to outsiders and a condition was laid in the partition deed that in the event of any alienation by any of the sharers, preference should be given to the other sharers to purchase the same.


2. The mother of the plaintiffs and the second defendant, viz, Valliammal was allotted certain properties in the partition deed and she has gifted her share of the properties to her only daughter, the second defendant herein, under a deed dt. 14-9-1972. Now, it transpires that the second defendant had sold one of the items settled under the gift deed to the first defendant under a sale deed dated 22-11-1975 for a consideration of Rs. 53,000, without the knowledge of the plaintiffs. No offer was made by the second defendant to the plaintiffs or to any other sharer calling upon them to purchase the same. The purchaser-first defendant was also aware of the right of pre-emption and therefore he is not a bona fide purchaser. The plaintiffs have therefore filed the suit for declaration of their right of pre-emption and to direct the first defendant to deliver the plaint property to the plaintiffs on receiving Rs. 33,000.


3. The first defendant - purchaser filed a written statement as follows :- The gift by the second defendant's mother in favour of the second defendant was absolute and unconditional. The gift deed dated 14-9-1972 in favour of the second defendant was attested by the plaintiffs themselves. This defendant was not aware of the right of pre-emption and he is a bona fide purchaser for value. He has since made lot of improvements and therefore the sale deed in his favour must be upheld.


4. The second defendant-vendor filed a written statement contending that she was not a party to the partition deed and there was no condition in the gift deed about the alleged right of pre-emption. The sale in favour of the first defendant is true and valid and there was no fraud. Assuming that there was a right of pre-emption at one time, the plaintiffs have waived their right by their own conduct.


5. The learned Subordinate Judge framed issues, recorded evidence and found that the plaintiffs have no right of pre-emption and that they have lost their right by estoppel. Consequently, the suit was dismissed with costs. The aggrieved plaintiffs have come on appeal.


6. Ex. A. 1 dt. 17-2-1960 is the registered copy of the partition deed in the family of the plaintiffs. Twelve sharers of the family entered into this partition deed and each of them was allotted certain items, about which there is no dispute. The relevant portion of the document is with reference to the right of pre-emption. It is recited in Ex. A. 1, that though the sharers are given absolute right in respect of their shares, since the family was an ancient and reputed one in that locality, they decided that the properties should not go to strangers, and that if there was any need for alienation, the sharers must give the first preference to the members of the family. It is mentioned therein that the intending seller should inform the other sharers in writing and ascertain their wishes. There is no dispute about this pre-emption clause, which is plain on the face of the document, Ex. A. 1.


7. About twelve years after this partition deed, Valliammal (one of the sharers) gifted her share of the properties to her only daughter, the second defendant herein, under the document, Ex. A. 2, dt. 14-9-1972 (same as Ex.B. 1). Under this gift deed, Valliammal gave absolute right to her daughter and also delivered possession. It is specifically recited in Ex. A. 2, that the donee, viz., the second defendant was at liberty to alienate the property as she liked. It is pointed out that the plaintiffs have attested this gift deed, which confers absolute right on the donee second defendant. Placing reliance on the attestation by the plaintiffs, it is strenuously contended on behalf of the defendants that the plaintiffs are estopped from claiming any right of preemption and that they have waived their right of pre-emption by subscribing to the recitals in the document Ex.A. 2. I am inclined to agree with this argument when I probe into the evidence of P.W. 1, the first plaintiff. P.W. 1 has categorically admitted in his cross-examination as follows : -


[Matter in vernacular omitted - Ed.]


It is clear from these admissions that it is not a mere attestation, but that the plaintiffs viz, the brothers, understood the contents of the document and subscribed to the recitals by attesting the same. In other words, they had full knowledge that their mother Valliammal gave absolute right to her daughter, the donee, and they obviously agreed to the incorporation of such a recital in the gift deed.


8. Learned counsel for the respondents-defendants places strong reliance on these admissions and the recitals in Ex. B-1, and argues that the rule of estoppel by acquiescence applies in cases of pre-emption and that acquiescence by a positive act amounts to relinquishment of pre-emptive right and it has the effect of forfeiture of such a right. The learned counsel cited before me a ruling of the Privy Council reported in Pateshwari Partab Narain Singh v. Sitaram, 1929 AIR(PC) 259, wherein it was held that the parties by their own conduct can be said to have waived the right of pre-emption. Learned counsel for the respondents-defendants then drew my attention to a decision reported in Bishan Singh v. Khazan Singh, 1958 AIR(SC) 838, 1958 SCJ 1234, 1959 (1) SCR 878 , wherein it was observed that 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. The Supreme Court observes in that decision that the said right is a very weak right and it can be defeated by all legitimate methods such as the vendee allowing the claimant of a superior or an equal right being substituted in his place. It is also clear that the right of pre-emption of any person can be extinguished by waiver or abandonment or by conduct.


9. Further, the conduct of the plaintiffs themselves in dealing with their own properties acquired under the partition lends support to the theory of waiver of the right of pre-emption. P.W. 1, the first plaintiff, has categorically admitted in cross-examination that the other sharers did not get any written permission from the collaterals when they alienated the properties to third parties. Admittedly, the sharers including the plaintiffs have sold away very many family properties to third parties outside the family. For instance, Subbulakshmi sold her lands to one Pasupathi without obtaining any written permission or written consent from the other sharers. P.W. 1 himself sold a property at Chembiyur to third parties, but he too has not obtained any written permission from the other sharers. P.W. 1 plainly conceded that a number of sale deeds had taken place in the family under which the sharers freely sold their properties to third parties without intimating the other sharers or without obtaining written consent. Therefore, what applies to the plaintiffs equally applies to the second defendant. When the plaintiffs themselves had chosen to alienate their share in the properties to third parties without reference to others, the same logic applies to the second defendant as well. I have already pointed out that the plaintiffs had knowingly attested the gift deed Ex. A. 2 giving the right of alienation to the second defendant. The result is, what is sauce for the goose is sauce for the gander.


10. Even in equity, this right of preemption need not be enforced. The suit property is a piece of land situated in a village far away from the residence of the plaintiffs. It is not as if this is a family house, where one sharer has sold a portion to a stranger thereby interfering

with their privacy and convenient living of others. Again, the suit property was not even an agricultural land. It was a waste land situated far away. P.W. 1 had to concede in cross-examination that the suit land was lying waste for a very long time. Therefore, there is no circumstance whatsoever in favour of the plaintiffs' claim of their right of preemption. 11. One other point deserves mention. The partition deed, Ex. A.-1, discloses a large number of sharers in the family property. None of the other sharers excepting the plaintiffs has come forward with the right of pre-emption. Therefore, it is wholly inequitable to allow the plaintiffs, who are guilty of the same charge, to assert their right of pre-emption, which they themselves did not care to follow. 12. For all these reasons, the judgement and decree of the trial Court are confirmed and the appeal is dismissed. No costs in this appeal.