The court reaffirmed that a pre-emption right can be enforced despite prior partition if a valid cause of action exists at the time of the assignment deed's registration.

ORDER :

1. This Revision Petition is filed challenging the order dated 19.07.2022 passed in O.S No.26/2016 by the I Additional Senior Civil Judge and CJM, Vijayapura wherein the application filed by the petitioner –defendant No.4 under Order VII Rule 11 of CPC came to be rejected.

2. Heard learned Senior Counsel for the petitioner and learned counsels for respondent Nos.1 and 6.

3. Respondent No.1 –plaintiff has filed a suit in O.S.No.26/2016 against petitioner and respondent Nos.2 to 8. The said suit is filed seeking declaration that the plaintiff –respondent No,1 herein is entitled to retain the shares of defendant Nos.1 to 3 by virtue of pre –emptive right. The prayer made in the plaint reads thus;

“a) Declare that the plaintiff is entitled to retain the shares of the defendants No 1 to 3 along with plaitniff's own share in suit Scheduled 'A' properties and issue consequential relief of injunction restraining the defendant No 4 from taking the possession of the suit properties to the extent of shares mentioned in the assignment Deed dated 23/12/2015, by virtue of pre-emptive right of plaintiff.

b) Permit the plaintiff to amend the plaint as and when necessary.

c) Any other reliefs deems fit be passed in favour of the plaintiff.

d) Award Cost of the suit.”

4. Respondent No.1 –plaintiff’s sisters i.e., Savithri and Vijaylaxmi have filed a suit for partition and separate possession in O.S.No.79/2007 on the file of the II Additional Senior Civil Judge, Vijayapura against the plaintiff and other nine persons. Other persons i.e., defendant Nos.1 to 3 have filed counter claim seeking allotment of their shares. The said suit came to be decreed. Respondent No.1 –plaintiff had filed RA No.37/2014 and RA No.39/2014 and they were pending before II Additional District and Sessions Judge, Vijayapura challenging the judgment and decree passed in O.S.No.79/2007. Both appeals came to be allowed modifying shares of parties. The plaintiff preferred RSA No.200090/2016 and RSA No.200091/2016 before this Court challenging the judgment passed in RA Nos.37/2014 and 39/2014. Defendant Nos.1 to 3 have assigned their shares declared in RA Nos.37/2014 and 39/2014 in favor of defendant No.4 for sum of Rs.17,25,000/- on 23.12.2015 by registered Assignment Deed pertaining to suit property. The defendant No.4 -petitioner herein had filed FDP No.9/2016 for enforcing shares assigned by defendant Nos.1 to 3 to him. The said Assignment Deed has been executed during the pendency of RSA No.200090/2016. Respondent No.1 has sought relief of pre-emption to retain shares of defendant Nos.1 to 3 who have assigned their shares infavor of defendant No,4 who is petitioner herein by Assignment Deed dated 23.12.2015. The said suit is filed on 16.12.2016. The cause of action stated in the suit is date of Assignment Deed executed by defendant Nos.1 to 3 in favor of defendant No.4 dated 23.12.2015.

5. Even though the prayer made in the suit is not happily worded, but relief claimed by respondent herein is right of pre-emption in respect of shares assigned by defendant Nos.1 to 3 infavor of defendant No.4.

6. Learned Senior Counsel for the petitioner would contend that there is no cause of action for filing suit for pre-emption. The pre-emption is governed under Section 22 of the HINDU SUCCESSION ACT , 1956. The partition is effected as shares are allotted to parties in RA Nos.37/2014 and 39/2014. Therefore, there is no right of pre-emption for respondent No.1 –plaintiff. Therefore, there is no cause of action for the suit. He submits that respondent No.1 –plaintiff can file application under Section 22 of the HINDU SUCCESSION ACT claiming right of pre-emption in the pending FDP No.9/2