BIRENDRA NATH BANERJEE Vs. SNEHALATA DEVI

JUDGEMENT

(1.) This appeal is by defendant No. 4. It arises out of a suit for partition and is directed against the final decree for partition, made by the learned trial Judge. The relevant facts lie within a short compass and they are as follows:

(2.) The disputed property, which was holding No. 428, now premises No. 88, Dewan Dataram Mondal Ghat Road, within the Kamarhati Municipality, and comprised an area of one bigha, five cottahs and odd, originally belonged to one Kedar Nath Chatterjee. On July 11, 1913, Kedar sold it to one Mihir Lal Banerjee, who died on January 11, 1930, leaving behind him surviving, as his heirs and legal representatives, six sons, Narendra, Amarendra, Surendra, Dhirendra, Jitendra and Birendra. Of these Surendra was defendant No. 1 in the instant suit, Dhirendra defendant No. 2, Jitendra defendant No. 3 and Birendra, the present appellant, defendant No. 4 Narendra died in the year 1934 and Amarendra died in 1941. Before their death, as aforesaid, Narendra and Amarendra had executed a mortgage in respect of their share in the disputed property, which was l/6th each, making a total of l/3rd for Rs. 1,000 to one Satya Charan Bose. This was on March 7, 1931. On November 2, 1943, Satya Charan died intestate, leaving his son Sasanka as his heir. On November 31, 1944, a preliminary decree for sale was passed in the mortgage suit (No. 40 of 1944 of the Court of the First Munsif, Sealdah) which was brought by Sasanka for enforcement of the above mortgage. In the said suit, the final mortgage decree was passed on September 4, 1945 and, in execution of the same, the mortgaged property, namely, the undivided 1/3rd share of the disputed premises, which was inherited by Narendra and Amarendra from their father Mihir Lal Banerjee (deceased), was put up to sale and was purchased by the decree-holder Sasanka. On September, 1949, Sasanka sold the above purchased property to the present plaintiff, Snehalata Debi, and, on December 12, 1949, Snehalata instituted the present partition suit (No. 193 of 1949 of the Fifth Court of the Subordinate Judge at Alipore), in which the preliminary decree for partition was passed by the learned trial Judge on May 24, 1951. The said decree directed inter alia payment of costs by the defendant No. 1 Surendra to the plaintiff and. in execution of that part of the decree, the plaintiff put up Surendra's undivided 1/6th share in the disputed property to sale and the same was purchased by the added respondent Debendra Chandra Bhattacharya on March 11, 1955, the sale being confirmed on May 15, 1956. Thereafter, the final decree for partition was made by the learned trial Judge on June 7, 1955, after disposing of objections, filed by the defendants to the commissioner's report, and, against the said final decree, the present appeal was filed by the appellant (defendant No. 4) on August 11, 1955. The auction-purchaser Debendra Chandra Bhattacharya was added as a party respondent to the present appeal on September 19, 1961, and thereafter, the appellant made an application for pre-emption under S, 4 of the Partition Aft in respect of the plaintiff's l/3rd undivided share in the disputed property as also of Debendra's l/6th undivided share in the same. This application was made on October 3, 1961.

(3.) In support of the appeal, Mr. Mukh-erjee raised certain contentions on the merits and submitted that the final decree for partition, as passed by the learned trial Judge, should be set aside, or, at least, varied in material respects. He next submitted that, in any event, his client should be allowed opportunity to pre-empt upon his aforesaid application under Section 4 of the Partition Act in respect of the plaintiff's l/3rd undivided share in the disputed property and Debendra's undivided l/6th share.