TAPAN KUMAR BANERJEE Vs. APARNA DEBI

JUDGEMENT

(1.) Both these appeals arose out of a common judgment dated 30 th September, 1997 and decree thereof passed by learned Civil Judge (Senior Division), First Court, Alipore 24 Parganas (South) in Title Appeal No.90 of 1996 partly modifying the judgment dated 9 th February, 1996 and decree thereof passed by learned Additional Munsif, First Court, Alipore, 24 Parganas (South) in Title Suit No.87 of 1993.

(2.) The appellants of S. A. 96 of 1999 and respondents of S. A. 603 of 1999 being plaintiffs filed said suit alleging that Durga Dasi (since deceased) was the original owner of premises No.11 Amita Ghosh Road, P. S. Ballygunge, Kolkata and that before her death on 31.03.1966 she executed a will dated 7 th of July, 1963 in respect of the suit house. Durga Dasi Debi had two sons namely Ganesh Chandra Banerjee and Kartick Chandra Banerjee. Ganesh Chandra Banerjee predeceased her leaving behind present plaintiffs as his sons. Letter of Administration of the Will of Durga Dasi Debi was obtained. By said Will Durga Dasi Debi bequeathed eastern portion of suit house to the plaintiffs and she bequeathed western portion of the same to her younger son Kartick Chandra Banerjee. Kartick Chandra Banerjee died on 29.09.1968 leaving his wife Lalita Debi as his sole heir. Kartick Chandra Banerjee executed will before his death which was probated after his death. On the strength of said Will of Kartick Chandra Banerjee his wife Lalita Debi obtained only life interest in the suit property i.e., western portion of the suit house and she had no right to sell it out or dispose of. Though plaintiffs and Lalita Debi were in joint possession of the suit house but they were living in separate mess. Lalita Debi was trying to sell out the suit property to outsiders representing herself to be the full owner of the same and made some conditional offers to sell the property to the plaintiffs thereby threatening plaintiffs' right in the suit property. Accordingly, the plaintiffs filed said suit praying for declaring that they are the reversionary to the estate of Kartick Chandra Banerjee and that the defendant Lalita Debi was only a beneficiary for enjoyment of the suit property during her life time. The plaintiffs also pray alternatively for a declaration that they are entitled to purchase the suit property by exercising the right of pre-emption over the same.

(3.) Original defendant filed a written statement denying material allegations of the plaint and contending inter alia that she became absolute owner of the suit property under the Will of her husband. It is further case that she offered to sell the suit property to the plaintiffs on receipt of market value but the plaintiffs did not agree to it and accordingly she agreed to sell the same to one Krishnadhan Banerjee for Rs.100000/- and already received Rs.25,001/- towards part consideration. The plaintiffs have no right of pre-emption over the suit property as it was a partitioned property.