SURAJ PRASAD Vs. OUDH BEHARI

JUDGEMENT

(1.) This is a defendant-vendee's appeal arising out of a suit for pre emption brought by three plaintiffs, Oudh Behari Lal, Tapeshri Prasad and Mahadeo Prasad. The first two are own brothers and presumably members of a joint Hindu family. According to the allegations in the plaint plaintiff 3 is a cosharer with a distinct and separate share of his own. The sale deed was executed on 6 March 1925. The connected appeal arises out of a suit to pre-empt a transaction which according to the plaintiffs, was evidenced by a deed of gift of 19 December 1925 and a sale- deed of 21 December 1925, both of which ware registered on the same day. The claim was resisted on the ground that the defendant had become a cosharer by virtue of this deed of gift and also on the ground that the plaintiffs had refused to purchase the property. The lower appellate Court has overruled both these objections and decreed the claim.

(2.) It has held that the two deeds of December 1925 were part and parcel of one transaction viz., of sale and that one single consideration was paid for both these transfers. This in our opinion is a finding of fact which must be accepted in second appeal.

(3.) In order to prove the refusal on the part of the plaintiffs the defendants produced oral evidence, as also a letter (Ex. D) written by Oudh Behari Lal, plaintiff 1, to the vendee Suraj Prasad. As to the oral evidence the lower appellate Court has found it unsatisfactory and has agreed with the Court of first instance that it should be rejected. As to Ex. D it is of the opinion that it did not amount to a final refusal to purchase the property on the part of the plaintiff. This finding is challenged in appeal before us.