PARTHA SARATHI GHOSH Vs. SRILEKHA GHOSH ROY

JUDGEMENT

(1.) This revisional application under section 115 of the Code of Civil Procedure is at the instance of defendant No. 1 in a suit for partition and is directed against Order No. 404 dated March 28, 1992 passed by the learned Assistant District Judge, 4th Court, Alipore in Misc. Case No. 44 of 1987 arising out of Title Suit No. 29 of 1970 thereby rejecting an application for pre-emption under section 4 of the Partition Act.

(2.) There is no dispute that one Sailen Ghosh was the original owner of the suit property, who died on June 23, 1942 leaving one son, the petitioner herein, two daughters and his widow. Therefore, according to the then law of succession the present petitioner and his mother became joint owners of the suit property subject to the provision contained in section 3(3) of the Hindu Women's Right to Property Act, 1937. However in view of coming into operation of the Hindu Succession Act, 1956 his mother's right became absolute and thus the mother and the present petitioner became co-sharers of the property, each having moity share. The mother by a registered Deed of Gift dated August 23, 1968 gifted her share to her two daughters, who were plaintiffs in the suit. Acquiring 8 anna share in the suit property through mother, the two sisters of the present petitioner filed a suit being Title Suit No. 29 of 1970 against the petitioners, their brother. The said suit was decreed in preliminary form on February 28, 1972 thereby declaring 8 anna share of the present petitioner and 4 anna share each of the plaintiffs. In the said preliminary decree liberty was given to the present petitioner to pre-empt the share of plaintiff No. 1, who was married at that point of time. There is no dispute that plaintiff No. 2 got married on June 12, 1976.

(3.) However, before marriage, the plaintiff No. 2 filed an application under section 4 of the Partition Act thereby giving rise to Misc. Case No. 21 of 1972, praying for pre-emption of the share of her elder sister viz. plaintiff No. 1. As indicated earlier, during the pendency of the said Misc. Case plaintiff No. 2 got married and thereafter the present petitioner filed an application before the learned trial court praying for an order of buying the share of plaintiff No. 2 as she got married. The prayer of the present petitioner for purchasing the share of plaintiff No. 2 was rejected by the learned trial Judge on July 8, 1978. However, the Misc. Case No. 21 of 1972 was finally disposed of by the learned trial Judge on January 12, 1980 with a finding that both the petitioner and the plaintiff No. 2 will have the right to buy the share of the other sister viz. plaintiff No. 1.