BHOLA NATH RASTOGI Vs. SANTOSH PRAKASH ARYA

JUDGEMENT

(1.) This appeal by some of the defendants is directed against the decree passed by the trial Court in a suit for partition. There were two plaintiffs in the case out of whom plaintiff No. 2 admittedly is the Benamidar for plaintiff No. 1. Plaintiff No. 1 claims to be the purchaser of l/6th share in the suit properties from defendants Nos. 25 to 28. These defendants and the other defendants are the members of a family, their common ancestor being one Nanku Lal Rastogi. Nanku Lal had three sons, namely. Pana Lal Rastogi, Maruan Lal Rastogi and Dhanu Lal Rastogi. Dhanu Lal had two sons, namely. Bhola Nath who is defendant No. 1 and Kedar Nath (defendant No. 25). Defendants Nos. 2, 3 and 4 are the sons of defendant No. 1. Defendants Nos. 26 to 28 are the sons and grand-sons of defendant No. 25. Admittely. in 1936 there was a partition amongst the defendants by a registered document dated the 15th November, 1936. which has been marked as Ext. 6 in the case. Some of the properties were partitioned and some were left joint which were mainly shops in Bihar-sharif town besides a garden. These properties were let out to the strangers on rent and under arrangement mentioned in the partition deed, they were left joint. It was further arranged that Maruan Lal would be looking after them, collecting income therefrom and distributing the same amongst the parties. It is further mentioned in the document that the parties were entitled to get their names mutated in respect of the joint properties if (hey so liked. The defendants Nos. 25 to 28 left Bihar and settled in Varanashi and in 1962 thev executed a sale deed in favour of plaintiff No. 1 in Farzi name of plaintiff No. 2. The share of these vendors admittedly came to l/6th in the joint properties which they transferred and the plaintiffs have prayed for a partition decree accordingly.

(2.) Defendants Nos. 25 to 28 did not appear in the suit nor did they file any written statement. The other defendants defended the suit on the ground that there was an agreement between the parties at the time of the execution of partition in the year 1936 whereby any co-sharer intending to transfer his share in the joint properties had to make an offer to the other co-sharers for purchase and if other co-sharers did not agree to purchase, the co-sharer proposing to effect a transfer could sell to a stranger. The defence is that no such opportunity was given to the defendants before defendants Nos. 25 to 28 executed their sale deed in 1962. The sale deed was executed on the 10th August. 1962 and the suit was filed on the 1st December in the same year.

(3.) The Court below rejected the defence case and decreed the suit as prayed for in the plaint. The appellants have thereafter filed the present appeal.