SIBA PROSAD BHATTACHARYYA Vs. BIBHUTI BHATTACHARJEE

JUDGEMENT

(1.) Aniy Kumar Sen and S. N. Sanyal J.J. have referred this revisional application for disposal by Special Bench as the Learned Advocate appearing for stranger purchaser being the defendant No. 1(a) of the Title Suit No. 131 of 1977 in the Court of the Subordinate Judge. First Court, Alipore, challenges the maintainability of the application under Section 4 of the Partition Act, on the ground that the same is not maintainable in as much as the stranger purchaser has neither prayed for partition nor for separate allotment. The Learned Judges have expressed the view that the view expressed in Nitai Das v. Bali Das I.L.R. (1967) 2 Cal 301 relied upon by the Learned Advocate is contrary to other earlier decisions of the Court. In order to resolve the conflict of the views, the Learned Judges have ordered that the revisional application should be decided by a Larger Bench.

(2.) Following are the facts: The petitioners being three brothers have filed as plaintiffs a suit for partition, permanent and mandatory injunctions being T.S. 131 of 1977 before Subordinate Judge 1st Court, Alipore against the defendant No. I claiming 3/4th share in the 17/4, Pitambar Ghatak Lane, Calcutta-27 and alleging that defendant No. 1 being the other brother has the remaining 1/4th share. During the pendency of the suit as the defendant No. 1 has sold away his share to Chittaranjan Bhattacharjee, a stranger purchaser, he has been impleaded as Defendant No. 1(a). After the preliminary decree has been passed the petitioners have applied for pre-emption under Section 4 of the Partition Act for purchasing the share transferred to Defendant No. 1(a) on the ground that the property is the undivided family dwelling house of the plaintiffs and the defendant No. 1 and the defendant No. 1(a) is a stranger purchaser. The Learned Subordinate Judge registered the application as Misc. Case No. 3 of 1983. The Learned Subordinate Judge, however, dismissed the said application under an order dated 11th February, 1983 only on the ground that the plaintiffs have waived, the right to pre-emption as the defendant No. 1 prior to his sale of his share to defendant No. 1(a) offered the plaintiffs to purchase his share but the plaintiffs did not offer adequate price to purchase the share. Being aggrieved, the petitioners have filed the revisional application under Section 115. C.P. Code challenging the above order as illegal.

(3.) The opposite party No. 2 being the strange purchaser has opposed the application. Though in the Trial Court no plea was raised that the application was not entertainable on the ground that the opposite party No. 2 neither filed the suit for partition nor prayed for separate allotment, such a contention was raised for the first time in revision before the Division Bench and the Learned Judges of the Division Bench have referred the revision application to be disposed of by the larger Bench. Before us Learned Advocate for the petitioners has made two fold submissions. Firstly, there is no question of waiver of the right of pre-emption because the alleged offer which the petitioners very much dispute was made prior to the transfer and cannot prevent the petitioners from claiming the right of preemption under Section 4 of the Partition Act, which right accrues to petitioners after a co-sharer sells his share in the undivided family dwelling house to the stranger. Secondly, the series of decisions beginning from Satyabhama v. Jatindra AIR 1929 Calcutta 269 have consistently taken the view that the right of preemption is available to a co-sharer even in a case when the stranger purchaser does not himself file the suit for partition and is arraigned as a defendant in a partition suit filed by the co-sharer and that the decision of Division Bench of Netai Das v. Hari Das ILR 1967(2) Calcutta 301 should not be accepted as the said decision is against the series of decisions of this High Court. Arun Kr. Matilal Learned Advocate for opposite party No. 2 has submitted that plea of waiver can be raised by the opposite party in a proceeding under Section 4 of the Partition Act and if the plaintiffs did not intend to purchase the share of the defendant No. 1 when offered prior to sale to stranger purchaser, they must be deemed to have waived the right and the Learned Subordinate Judge did not commit any illegality in taking that view. He has also relied upon the Division Bench decision of Netai Das v. Hari Das (Supra) but has concluded that in this case the stranger purchaser has in the written statement claimed his share in the property and should be presumed to have prayed for separate allotment and even on the basis of Netai Das's case the claim of the petitioners cannot be refused on that ground.