PRAHLAD PRASAD Vs. MTCHAMELI KUAR

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for pre-emption brought by the plaintiff Mt. Chameli Kuar, wife of Liladhar, in respect of the properties transferred under a sale deed (p. 57) dated 12 September 1932, for Rs. 35,000, executed by defendants 3 - 6 in favour of defendants 1 and 2. The properties sold consisted of 7? pies out of 20 biswas in mahal Lakhi, Chak Ehtamali and Chak Mustaqil, of village Nagaria Fatehpur, as well as shares in another village Rampura Naogawan, with which we are not now concerned in appeal. The plaintiff claimed to be a co-sharer and alleged that the defendants vendees had been strangers to the mahal. The claim was contested on the main ground that the plaintiff was not a co-sharer in this mahal, but was a petty proprietor and as such was not entitled to claim the preemption. There were some other pleas also which have not been seriously pressed. In particular, there was a plea that the plaintiff's allegation that the proportionate value of the property sought to be preempted was Rs. 14,000 was not correct. The Court below has decided all these points in favour of the plaintiff and has decreed the claim for pre-emption of the properties in suit on payment of Rupees 14,000.

(2.) The only point that is now pressed before us in appeal is that the plaintiff has not proved that she is a co-sharer in this mahal. On 2 May, 1932 her husband Liladhar acquired a share in mabal Lakhi Chak Mustaqil, and Chak Ehtamali, of village Nagaria Fatehpur, and also a share in the other village. By virtue of this acquisition he undoubtedly became a co-sharer in these Chaks. On 7 July 1932, Liladhar executed a deed of gift (p. 6,1) of a 1/3 share in 1 1/6 sihams out of 40 sihams of his zamindary property in village Nagaria Fatehpur, mahal Lakhi, Chak Ehtamali, in favour of his wife Mt. Chameli Kuar, the present plaintiff. This document was duly registered and mutation of names was effected in favour of Mt. Chameli Kuar and her name was duly entered in the khewat (p. 91). The learned Counsel for the appellants has to concede that assuming the finding of the Court below that this deed was not fictitious to be correct, Mt. Chameli Kuar undoubtedly became a co-sharer in this village. His contention that she has ceased to be a co- sharer is based on a partition which took place subsequently.

(3.) After the execution of the sale deed on 12 September 1932 (which is in dispute in this case), a deed of partition dated 7 June 1933 (p. 67) was executed between the co-sharers of these two villages. The first party was comprised of Liladhar and his wife Mt. Chameli Kuar as well as his brother Ram Ratan Lal and his wife Mt. Ganga Dei and also Mt. Sundar Kuar, the mother of Liladhar, and also Ram Chandra Lal, his maternal uncle. The second party consisted of Prahlad Prasad and Sahu Banwari Lal. Under this agreement the parties agreed to divide up the plots constituting the mahals into two lots, one allotted to the first party and the second allotted to the second party. The first lot which was given to the first party consisted of 23 plots in mauza Nagaria Fatehpur, mahal Lakhi, Chak Mustaqil, and two plots in Chak Ehtamali as also 22 plots in the other village. The entire remaining shares in the two villages were allotted to the second party. Now Mt. Chameli Kuar, under the gift of her husband, had acquired a share in Chak Ehtamali only, out of which Chak only two plots, 411 and 412, measuring in all 15 bighas 11 biswas, were allotted to the first party. Thus Liladhar, Mt. Chameli Kuar and the other co-sharers of this first party got shares jointly in these two plots with an area of 15 bighas 11 biswas. They got nothing else in this Chak. Mt. Chameli Kuar in particular got nothing in Chak Mustaqil and got only a fractional share in these two plots in Chak Ehtamali. The deed of partition further provided that these two lots should be formed into two separate pattis with separate assessments of revenues and that neither party should have any concern with the patti given to the other party, and that each should get entries made in the khewats of all the three mahals in accordance with this private partition. A clause was also added protecting the rights of the parties as regards the claims of pre- emption in the following words: This deed of partition on the contents of the former deed of agreement shall have no effect on the pre-emption rights of one or all of the first party, which they might have as against the second party (which the second party do not admit).