KANCHAN KEORA Vs. GOPAL CHANDRA GHOSE

JUDGEMENT

(1.) THIS is an application under Section 115 of the code of Civil Procedure and is directed against Order No. 65 dated 12th of august 1974 passed by the Subordinate judge, 1st Court, Hooghly, in Misc. Case no. 57 of 1971 by which the petitioner's application under Section 22 of the Hindu Succession Act was rejected.

(2.) THE opposite party No. 1 filed a suit against the petitioner being Title suit No. 136 of 1969 for partition of the properties. In the said suit the opposite party No. 2 (mother of the petitioner)and the opposite party No. 3 (sister of the petitioner) were made parties. Admittedly, the suit properties belonged to Panchanan Keora, father of the petitioner. In the suit it was asserted that the opposite party No. 1 by virtue of two registered deeds of sale dated April 1, 1968 had purchased the interest of the opposite parties Nos. 2 and 3 in the suit properties and had acquired 23rd interest. But the petitioner did not allow him to possess the properties and hence the suit.

(3.) DURING the pendency of the suit the petitioner filed an application under Section 22 of the Hindu Succession act in the same court is claiming preemption on a preferential right to acquire the 2/3rd interest of the opposite party No. 1 and also claiming for a determination of the consideration thereof. It was contended by the petitioner that he was not intimated about the sale and he had no earlier knowledge about the said transfer when on the said application Misc. Case No. 57 of 1971 was started. The opposite party no. 1 filed a written objection. The partition suit, however, was dismissed for default on April 9, 1974. After that an application under Order 9 Rule 4 was filed by the plaintiff and on the said application Mis-Judicial Case No. 62 of 1974 was started and that case is still pending. The learned Subordinate Judge dismissed the petitioner's application under Section 22 of the hindu Succession Act on the ground that the application was not in proper form and the transactions having been completed before the filing of the application, Section 22 of the said Act had no application. Being aggrieved by the aforesaid order, the present application has been filed.