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2000 DIGILAW 22 (CAL)

BANSARI MOHAN BANERJEE v. TOTINI CHATTERJEE

2000-01-10

RUMA PAL, S.N.BHATTACHARJEE

body2000
R. PAL, J. ( 1 ) THE facts of the case have been set out correctly and in detail in the judgment dated 30th July, 1999 of the learned single Judge. We do not intend to burden this judgment with a repetition of those facts. Suffice it to say that the judgment was in a partition suit between three groups of heirs and that the question to be determined is the shares of the parties in premises No. 26, Badur Bagan Lane, Calcutta (referred to as the premises ). ( 2 ) THE appellants represent one group; the respondent Nos. 1 to 4 represent the second group and the respondent No. 5 represents the third group, each group being the heirs of three brothers namely, Upendra, Dhirendra and Bhupendra respectively. The father of Upendra, Dhirendra and Bhupendra, one Kunja Behari owned 3/4th share in the premises. The other 1/4th share was owned by Kunja Behari's nephew, Harendra Nath. ( 3 ) THE respondents Nos. 1 to 4 claim 1/4th share in the premises by virtue of a sale of Harendra Nath's interest to their father, Dhirendra. The respondent No. 5 claims 1/20th share in the premises as one of the revisionary heirs of Dhirendra. The appellants, the heirs of Upendra, contend that they are entitled to the whole interest in the premises. Accordingly to the appellants neither the respondents 1 to 4 nor the respondent No. 5 have any right to the premises. ( 4 ) AS far as their case against the respondents Nos. 1 to 4 is concerned, it is based on a deed of pre-emption between Kunja Behari and Harendra Nath. According to the appellants, they are entitled to exercise the right of pre-emption as heirs of Kunja Behari against the heirs of Harendra Nath. The sale of Harendra's interest in the premises by his widow Durga Rani to the father of the respondents Nos. 1 to 4 is thus sought to be avoided. ( 5 ) THE deed of pre-emption is dated 16th December, 1927. It recites that Premises No. 26, Badur Bagan Lane, Calcutta was jointly owned by Kunja Behari and Harendra, with Kunja Behari owning 3/4th share and Harendra Nath 1/4th. 1 to 4 is thus sought to be avoided. ( 5 ) THE deed of pre-emption is dated 16th December, 1927. It recites that Premises No. 26, Badur Bagan Lane, Calcutta was jointly owned by Kunja Behari and Harendra, with Kunja Behari owning 3/4th share and Harendra Nath 1/4th. The deed provided that if disputes arose in future because of partition of the property and either of the parties wanted to sell or mortgage his allotted portion, each would offer his share to the other for sale or mortgage and if the other agreed to buy such share at market value, the party proposing to sell or mortgage his share would not be entitled to sell or mortgage it to others. The deed also declared that this would be binding on the heirs and legal representatives of the parties. ( 6 ) HARENDRA died in 1928 soon after executing the deed of pre-emption. He was survived by his widow, Smt. Durga Rani and his son Ananga. Ananga died on 9th June, 1958 leaving his mother Durga Rani as his only heir. On 30th July, 1958 Durga Rani sold the 1/4th interest of Harendra in the premises which had devolved on her through Ananga, to Dhirendra, the father of the respondent Nos. 1 to 4 for Rs. 13,000/ -. ( 7 ) IMMEDIATELY after this, the appellants' predecessor in interest namely Upendra Nath filed a suit in the City Civil Court (Title Suit No. 100 of 1959) challenging the sale and asking for a decree for;"possession and conveyance and sale of the 1/3rd or 1/2 of the said 1/4th share of the said premises in favour of the plaintiff on payment of Rs. 4,335-4 or Rs. 6,500/- as the case may be. " ( 8 ) THE suit was dismissed with costs, Upendra preferred an appeal before the High Court. A Division Bench of the High Court dismissed the appeal holding that the right of pre-emption arose only when there was partition by metes and bound of the premises. As the property had not, in fact, been partitioned Upendra was not entitled to exercise his right of pre-emption. ( 9 ) ACCORDING to the appellants this decision did not deny the right of pre-emption but merely postponed it so that when the premises were in fact partitioned, the right could be exercised. ( 10 ) THE respondents Nos. As the property had not, in fact, been partitioned Upendra was not entitled to exercise his right of pre-emption. ( 9 ) ACCORDING to the appellants this decision did not deny the right of pre-emption but merely postponed it so that when the premises were in fact partitioned, the right could be exercised. ( 10 ) THE respondents Nos. 1 to 4 contended (i) that the issue of pre-emption was barred by res-judicata; (ii) that the deed of pre-emption did not bind Durga Rani as she did not inherit Harendra's interest as his heir but as the heir of Ananga; (iii) that neither Durga Rani nor Dhirendra were aware of the deed of pre-emption and Dhirendra was a bonafide purchaser of 1/4th share in the premises; and (iv) that the heirs of Kunja Behari had been offered Durga Rani's share prior to the sale but Dhirendra had offered the highest price. ( 11 ) THE learned single Judge on a consideration of the evidence upheld the third and fourth contentions of the respondent Nos. 1 to 4. While not interfering with that decision in any manner whatsoever, we are of the view that the claim of the appellants' to defeat the sale by Durga Rani to the father of the respondent Nos. 1 to 4 on the basis that the deed of pre-emption is barred by res-judicata. The Appellate Court did not hold that the right of pre-emption was postponed as claimed by the appellants but held that there was no right of pre-emption when the sale took place. This means that Durga Rani was under no obligation to offer the property to any of the other heirs of Kunja Behari when the sale took place. In the absence of such obligation at the material time, the sale was property and duly effected. The appellants cannot now re-open the issue of the validity of the sale. ( 12 ) THE sale having been duly made, Dhirendra, and now the respondents Nos. 1 to 4 are the owners of 1/4th share in the premises and they must be declared to be jointly entitled thereto. The appellants cannot now re-open the issue of the validity of the sale. ( 12 ) THE sale having been duly made, Dhirendra, and now the respondents Nos. 1 to 4 are the owners of 1/4th share in the premises and they must be declared to be jointly entitled thereto. ( 13 ) THE second claim of the appellant is based upon a deed of exchange which was executed between the father of the appellants (Upendra) and the father of the respondent No. 5 (Bhupendra) in his own capacity and as representing the respondent No. 5 who although co-nominee a party to the deed, was a minor at that time. The deed is dated 18th April, 1958. It recites that Bhupendra had paid a sum of Rs. 3,731/- to Upendra and gave up his "undivided one fourth part or share of and in all that three storied brick-built messuage dwelling house together with the land thereunto belonging and on which the same is erected and built containing an area of two cottahs four chittacks and thirty four square feet more or less situate lying at and being premises No. 26, Badur Bagan Lane" in favour of Upendra in return for Upendra's undivided 1/2 share in premises No. 25a, Badur Bagan Lane. According to the appellants by this exchange Bhupendra and the respondent No. 5 not only gave up the portion of their interest as specified in the deed but also gave up all future interest which might be obtained by Bhupendra or the respondent No. 5 in the premises. This would include the right of the respondent No. 5 to a share in the reversionary interest of Dhirendra in the premises. ( 14 ) IT must be noted at this stage that Upendra, Dhirendra and Bhupendra were in possession of the premises under the will of Kunja Behari which provided that they would only have a life interest in the premises which would ultimately vest in the grandsons. Upendra had four sons, namely, Shyam Sundar, Bansari Mohan, Murari and Kishori Mohan. Of these, Shyam Sundar is dead and is now being represented by his heirs. Dhirendra had no sons but only four daughters namely the respondents Nos. 1 and 4. Bhupendra had one son namely, the respondent No. 5. Upendra had four sons, namely, Shyam Sundar, Bansari Mohan, Murari and Kishori Mohan. Of these, Shyam Sundar is dead and is now being represented by his heirs. Dhirendra had no sons but only four daughters namely the respondents Nos. 1 and 4. Bhupendra had one son namely, the respondent No. 5. It is not in dispute that in terms of Kunja Behari's will on Dhirendra's death the absolute title in the premises relatable to Dhirendra's interest (namely 1/4th) would be divisible amongst the four sons of Upendra and the respondent No. 5. Dhirendra died in 1979. Therefore, in terms of Kunja Behari's will each of the four sons of Upendra as well as respondent No. 5 would be entitled to an equal share in such 1/4th share. The deed as it stands is explicit and there could be no doubt that what was in fact exchanged was the then existing interest of Bhupendra and the respondent No. 5 in the premises in exchange for the then existing interest of Upendra in premises No. 25a, Badur Bagan Lane. There is no reference to any future interest although the parties must have been well aware of the terms of Kunja Behari's will. ( 15 ) ACCORDING to the appellants the deed had been construed in a proceeding which had been filed between Upendra and Bhupendra (Suit No. 1401 of 1958) which was disposed of on 21st June, 1964. The appellants say that the learned Judge who delivered the judgment in that suit had held that the exchange was intended to and had the effect of wholly separating Upendra and his heirs from Bhupendra and his heirs. ( 16 ) SUIT 1401 of 1958 had been filed by Upendra inter alia for cancellation of the Deed of Exchange alternatively for specific performance of the agreement. The judgment in that suit does not assist the appellants. The judgment was delivered in 1964 prior to Dhirendra's death and the court was not called upon to consider whether the deed of exchange covered the interest subsequently acquired by the respondent No. 5 in 1979 upon Dhirendra's death. Furthermore, while recognising the intention of the parties to separate the interest of Bhupendra and Upendra nevertheless in construing the agreement relating to premises No. 25b Bahadur Bagan Lane the court refused to fill in the lacuna in the agreement by which the intention was defeated. Furthermore, while recognising the intention of the parties to separate the interest of Bhupendra and Upendra nevertheless in construing the agreement relating to premises No. 25b Bahadur Bagan Lane the court refused to fill in the lacuna in the agreement by which the intention was defeated. The learned Judge said :"the agreement (Ex. B) was defective to the extent that it did not plug this loophole. Thus the over all consideration for the agreement (Ex. B) has substantially failed. By living together in premises No. 25/b Plaintiff No. 1 Upendra and defendant No. 1 Bhupendra and the members of their respective family are likely again to quarrel. There is no help for it and the agreement (Ex. B) did not fully bargain against it. " ( 17 ) SIMILARLY, the deed of exchange not having provided for the contingency of the respondent No. 5 acquiring Dhirendra's reversionary interest, the court cannot read the clause into the agreement whatever the intention of the parties may have been. ( 18 ) INCIDENTALLY while holding that Bhupendra was liable to deliver possession of the premises 26, Bahadur Bagan Lane in his possession to Upendra, the learned Judge said :"such delivery of possession must however be without prejudice to the rights of Dhirendra in the said property, because Dhirendra has now acquired as independent absolute right to the said portion of the said premises by purchase of the share his uncle had therein. " ( 19 ) IN the circumstances narrated, the four sons of Upendra (Shyam Sundar's interest being represented by his heirs) being the appellants are jointly entitled to the following shares in the premises. (A)1/4th : being the share received under the will of Kunja Behari relating to Upendra's interest. (b)1/4th : being the share received by virtue of the deed of exchange between Bhupendra and Upendra. (c)1/5th being the share inherited by virtue of Dhirendra's death. ( 20 ) THE respondent No. 5 is entitled to 1/20th share in the premises upon Dhirendra's death by virtue of Kunja Behari's will and the respondents Nos. 1 to 4th share in the premises by virtue of the deed of sale dated 30th July 1958. The learned Judge while being right in principle unfortunately proceeded on the basis that Upendra had 3 sons. The preliminary decree passed by him is therefore modified to the extent mentioned above. 1 to 4th share in the premises by virtue of the deed of sale dated 30th July 1958. The learned Judge while being right in principle unfortunately proceeded on the basis that Upendra had 3 sons. The preliminary decree passed by him is therefore modified to the extent mentioned above. The appeal is otherwise dismissed with costs. S. N. Bhattacharjee, J.-I agree. Decree modified.