KAILASHCHANDRA Vs. DAMODAR

JUDGEMENT

(1.) The appellant has filed the present appeal challenging the judgment and decree dated 27/08/2001 passed by ASJ, Bioara in civil suit No.55-A/1997 whereby dismissing the suit filed by the appellant.

(2.) Facts in brief are that the appellant/plaintiff filed a suit for declaration of sale-deed dated 01/05/1995 executed by the respondent No.1 in favour of the respondents No.2 and 3 as null and void and not binding upon him as well as for executing a sale-deed in his favour for Rs.1,65,000/- and for getting vacant possession of part of the property illegally sold by the respondent No.1 in favour of the respondents No.2 and The suit was filed on the allegations that house in dispute situated at Sardar Bazar, Bioara, Ward No.7 (New No.9) belonged to late Shri Balabax S/o Mangilal Mishra, who on 16/03/1972, executed a Will and divided the said property in four parts, out of which plaintiff got ? th part and the respondent No.1/Damodar got ?th part in the suit property. It has been alleged in the plaint that in the Will executed by Late Shri Balabax, there is a condition No.13 (1 to 3) mentioned in the Will that the house is being partitioned in four parts and in case of sale, mortgage by any of them, the same would be transferred only to each other and only the beneficiaries shown in the Will i.e. Damodar, Kailashchandra would be entitled to purchase the property.

(3.) It has also been mentioned in the Will that in case any of the beneficiaries are not in a position to purchase the property, then, it may be sold to other beneficiary (Bhagidar) and in case of sale of property to an outside person. The consent of all the beneficiary (Bhagidar) is compulsory. It is also contended that Balabax expired on 22/04/1977 and after his death all the beneficiaries occupied the premises given in the Will and their names have also been mutated. It is further alleged that Shyamkumar, Vinodkumar, Subhash and Dinesh wanted to sale their property and they asked respondent No.1 to purchase the property and he deceived to purchase the same, as such the offer was given to the plaintiff, who purchased the property by registered sale-deed dated 01/02/1994 and became owner of the portion owned by them.