JASODA DEBI Vs. RAMCHANDRA SHAW

JUDGEMENT

(1.) This appeal is directed against the appellate order passed by the learned Additional District Judge, 14th Court, Alipore whereby he set aside the order of dismissal dated August 8, 1979 passed by the learned Subordinate Judge, 7th Court, Alipore in Title Suit No. 98 of 1974. The suit is one for declaration of the plaintiff's right of pre-emption in respect of the suit property and for specific performance of contract.

(2.) The plaint case is that one Ramcharit Shaw who owned premises Nos. 7/4, 7/5 and part of 9, Munsigaunge Road, P.S.- Watgaunge, died in the year 1966 leaving his three sons including the plaintiff who jointly inherited the property in equal share. By a registered deed of partition executed on March 31, 1968 the inherited property was partitioned amongst the three brothers. It was provided in the deed of partition that if any of the parties intended to sell his allotted property he would intimate the others about his intention to sell and the other parties would have the right of pre-emption to purchase the property of the party intending to sell his share. One of the brothers, Harinaryan Shaw died on November 25, 1974 leaving the defendants Nos. 1 to 4 as his heirs and legal representatives but on December 8, 1974 the plaintiff learnt that Harinarayan Shaw had sold his right, title and interest in the suit property which was the allotted share of Harinarayan Shaw to the appellant-defendant No. 5, a stranger, on November 9, 1974 at a consideration of Rs. 8500/- but no intimation was given to the plaintiff about any intention of such sale.

(3.) The plaintiff's case is that such sale to the defendant No. 5 is not binding on the plaintiff and it could not affect the plaintiff's right of pre-emption. It is further alleged by the plaintiff that the defendant No. 5 got the Kobala executed by Harinarayan Shaw with full knowledge of pre-emption clause contained in the partition deed. The plaintiff has been ready and willing to purchase the suit property from the defendant No. 5 and the defendants Nos. 1 to 4 being the heirs and legal representatives of Harinarayan are bound to execute the deed of conveyance in favour of the plaintiff together with the defendant No. 5.