NETAI DAS GHOSE Vs. HARIDAS DAS

JUDGEMENT

(1.) In this appeal the principal point that arises is the construction of Sec. 4 of the Partition Act (Act IV of 1893). The relationship between some of the parties hereto appears from the following genealogical table:

(2.) Premises No. 5A, Chaitan Sen Lane, in Calcutta was a property wholly belonging to the above family at all material times. On May 27, 1957, there was a consent decree in an ejectment suit by Haridas Ghose and others against a tenant in respect of a portion of the said property named Haridas Das for possession, but it was agreed that the date of possession would be postponed for a year. On January 5, 1959, the said Haridas Das purchased an undivided one -third share of the said premises from the heirs of Raghunath Ghose, namely, Aparajita, Sebabrata, Debabrata, Priyabrata and Banibrata at a consideration of Rs. 10,000,00. On July 13, 1961, the pleader or Haridas Das wrote to the Appellant Netai Das Ghose and his co -sharers, inter alia, that Haridas Das had become a co -sharer in respect of the said premises by virtue of a conveyance dated January 5, 1959. In this letter the said pleader also claimed certain sums for repairs to the premises as also a share of the rent. On September 3, 1962, Netai Das Ghose and others filed in this Court a Partition Suit being Suit No. 1485 of 1962 against Haridas Das. On November 17, 1962, the written statement was filed.

(3.) Then on April 15, 1964, Netai Das Ghose made an application under Sec. 4 of the Partition Act for purchasing the undivided one third share of Haridas Das who was a stranger to the family. On March 24, 1966, Datta, J. by an order dismissed the said application and it is against this order that the present appeal was filed. Datta J. also passed a preliminary decree for partition and appointed a Commissioner of Partition. On June 25, 1966, the memorandum of appeal herein was filed. We are told that the Commissioner of Partition has also filed his report stating that the property is incapable of partition.