PUNCHHI - (1.) THIS appeal by special leave is directed against the judgment and decree dated 1-9-1978, rendered by a Division Bench of the High Court of Karnataka in Regular First Appeal No. 91 of 1973, affirming that of the trial Court.
(2.) SHRI Batchu Muniyappa Chetty, statedly the foster father of Smt. Vijaya Lakshmi, the appellant herein, and SHRI B. Hiamntharaja Chetty, the contesting respondent herein, were brothers, being the sons of SHRI Batchu Ramaiah Chetty. The father and sons effected a partition of their joint family properties, under registered Partition Deed dated 23/06/1928 (Ex. P.3), as detailed in Schedule A attached thereto. Thereunder the father was given properties described fully in Schedule B to the indenture valued at Rs. 20,000.00. The foster father of the appellant got properties described fully in Schedule C to the indenture and valued Rs. 12,500.00. The contesting respondent got the properties described fully in Schedule D to the indenture also valued at Rs. 12,500.00. Clause 12 thereof provided a stipulation of pre-emption, which being the bone of contention, reads as follows : "The second (the foster father of the appellant) and third (the contesting respondent herein) are allotted the immovable properties Nos. 137, 138 and 139, Jeweller's Street and No. 25, Veera Pillay Street as described in the Scheduled hereunder. Though the party to whom it is allotted is entitled to dispose it of, he shall not do it to any stranger without giving the parties to this indenture an opportunity to buy it by pre-emption at the valuation given in the schedule to this indenture". The foster father of the appellant died some where in the year 1948 leaving his property by means of a will dated 1-12-1948 to his widow Smt. Lakshmidevamma, who also died in the year 1956. However, before the death, in 1951, she, as foster mother of the appellant executed a Will in favour of the latter bequeathing to her properties mentioned in Schedule C. The appellant claims to have received these properties as a foster child of the Batchu Muniyappa Chetty and his late widow Smt. Lakshmidevamma, but not a stranger. The respondent on 11-12-1956 instituted a suit against the appellant for possession of the aforementioned Schedule C properties the Civil Court at Bangalore inter alia on the premise that under the terms of the Partition Deed, above referred to the dispositions of properties made in the matter stated above by late Batchu Muniyappa Chetty and after him by his widow Smt. lakshmidevamma, were in breach of the terms of the Partition Deed and therefore his right to enforce his claim for pre-emption, on payment of Rs.3100.00, the price fixed therein had ripened. The appellant put forth the two wills to assert her title as legatee. She also claimed on a variety of grounds that neither the plaintiff-respondent had any right of pre-emption against her nor was such claim tenable in law.
(3.) HAVING regard to the multiplicity of pleas raised by both sides, the trial Court framed as many as 11 issues but the relevant ones for the present purpose are the following two issues : No. 3. whether the plaintiff proves his right of pre-emption in respect of disposition of properties by bequest as well ? No.4. Whether defendants prove that the alleged pre-emption is unenforceable against her for reasons stated in para 4 of the written statement ? After recording evidence of the parties and entertaining documentary evidence the trial Court recorded its findings on those two issues to the effect that the plaintiff respondent had a right of pre-emption in respect of the suit properties even though they came to the appellant by bequest and that such right of pre-emption was an enforceable right. On holding so and as a result of findings on other issues, the plaintiff respondent's suit was decreed, directing the appellant to execute a Deed of Sale, at the cost of the plaintiff-respondent, on payment of Rs. 3100.00, and consequently deliver possession of the properties to the plaintiff-respondent.;