NIRUPOMA BASAK Vs. BAIDYANATH PRAMANICK

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated May 18, 1981 passed by S. C. Deb, J. dismissing the appellants' application under S.4 of the Partition Act, 1893 for purchase of the undivided 5/6th share from the respondent who purchased the same in the dwelling house of the appellants from other co-sharers. To understand the points in issue brief facts of the case may be stated.

(2.) Premises No. 45, Nanda Ram Sen Street (hereinafter referred to as 'the said premises') was the ancestral dwelling house of the appellants and their other co-sharers. One Gopi Ballav Pramanick alias Basak had undivided 1/2 share of the said premises. On or about 11th July, 1975 Gopi Ballav Basak sold his undivided 1/2 share in the said premises to the respondent It is alleged by the respondent that when Gopi Ballav Basak offered his undivided 1/2 share of the said premises for sale to the respondent the respondent stated to Gopi Ballav Basak that the said share should be offered first to the other co-sharers and accordingly Gopi Ballav Basak in the presence of the respondent offered to sell his undivided 1/2 share to all co-sharers, namely, Nadia Behari Basak, Brindaban Basak, Santosh Basak, Bimal Basak and Nirmal Kumar Basak. The other co-sharers declined to purchase Gopi Ballav's undivided 1/2 share and represented to the respondent that they had no objection if the said share was sold to the respondent. Thereafter, at the respondent's request the respondent Nos. 2, 3, 4 and 5 on behalf of themselves and cither co-sharers and Nadia Behari Basak gave declarations in writing dated 22nd June, 1975 stating that they declined to purchase the said 1/2 share of Gopi Ballav Basak. It is stated by the respondent that similar letter and/or declaration in writing dated 5th July, 1975 was given by Brindaban Basak to the respondent. The said writings contain as follows:

(3.) It is further stated by the respondent that immediately after the sale of his undivided share Gopi Ballav Basak delivered vacant possession of three rooms and attached kitchen and privy in the first floor and one room on the ground floor of the said premises to the respondent which were in the occupation of the said Gopi Ballav Basak. Simultaneously with the sale of the said 1/2 share by Gopi Ballav Basak to the respondent, Gopi Ballav Basak issued necessary letters of attornment to the tenants of the said premises and since the date of purchase the respondent with the knowledge and consent of the other co-sharers was collecting his 1/2 share of total rent from the tenant of the said premises. It is also stated by the respondent that after such sale he had his name mutated as one of the co-owners of the said premises in the records of the Calcutta Corporation and has been paying his half share of the Corporation's rates and taxes in respect of the said premises.