Calcutta High Court (Appellete Side)
Samir Kumar Baitalik & Anr vs Mrinmoy Baitalik on 5 April, 2012
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
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Form No.J(2) IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
S.A. No.158 of 2005
Present :
The Hon'ble Mr. Justice Prasenjit Mandal
Samir Kumar Baitalik & Anr.
Versus
Mrinmoy Baitalik.
For the appellant: Mr. S.B. Bhunia.
Mr. Debayan Bera.
Mr. Sakti Prasad Chakrabory.
For the respondents : Mr. Aniruddha Chatterjee.
Mr. S. Chatterjee Mr. Surya Prasad Chattopadhyay.
Heard On: 20.03.2012, 29.03.2012.
Judgement On: April 5, 2012.
Prasenjit Mandal, J.: This second appeal is directed against the judgment and decree dated December 18, 2004 passed by the learned Additional District Judge, 4th Court, Howrah in Title Appeal No.24 of 2002 thereby reversing the judgment and decree dated December 21, 2001 passed by the learned Civil Judge (Senior Division), Uluberia in Title Suit No.132 of 2000.
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The plaintiff/respondent herein instituted the said Title Suit being No. 132 of 2000 before the learned Civil Judge (Senior Division), Uluberia against the defendants/appellants herein praying for declaration that the plaintiff is entitled to pre-empt the sale by Malati Sundari Baitalik to the defendants in respect of 'B' schedule property as described in the schedule to the plaint, decree for pre-emption of the sale-deed dated December 22, 1999 to the defendants by his vendor described in schedule 'B' of the plaint and other reliefs.
The defendants contested the said suit and the suit was dismissed on contest with cost against the defendants. Being aggrieved, the plaintiff preferred an appeal being Title Appeal No.24 of 2002 before the learned District Judge and the First Appellate Court allowed the appeal on contest. The judgment and decree passed by the learned Civil Judge (Senior Division), Uluberia, has been set aside and the decree of declaration and pre-emption as sought for have been granted accordingly. Being aggrieved, by such judgment and decree of the First Appellate Court, this second appeal has been preferred by the defendants.
This Hon'ble Court has framed the following substantial questions of law for decision in the second appeal: 3
I. Whether the learned court of appeal below committed substantial error of law in granting a decree for preemption by totally overlooking the fact that the grandfather of the present plaintiff divested himself of all his shares of the tank in favour of the predecessor- in-interest of the defendants, and, as such, the plaintiff being the successor of the said person cannot invoke right of preemption by taking aid of clause of preemption in the original deed of partition, II. Whether the learned court of appeal below committed substantial error of law in granting a decree for pre- emption by totally overlooking the fact that the defendant has in the meantime become co-sharer of the property, and, as such, whether clause of pre-emption mentioned in the original deed of partition can be invoked against the existing co-sharers. Upon hearing the learned Counsel for the parties and on going through the materials-on-record, I find that the following facts are not in dispute:-
(i) That the suit property as described in the schedule to the plaint originally belonged to 5 full brothers, 4 namely, Surendra, Dhirendra, Bipin, Sailendra and Profulla and two sons, namely, Pitambar and Nilambar of another deceased brother, namely, Bhusan Baitalik.
(ii) By a deed of partition dated September 5, 1931, the aforesaid 6 groups of co-sharers made partition of the suit property including their undivided dwelling house with appurtenance adjoining tank by metes and bounds.
(iii) Dhirendra had 7 decimals of lands in the plot in suit, namely, Dag No.779 and he had sold the same to the father of the defendant No.1 and grandfather of the defendant No.2 by a deed dated March 14, 1950(Exhibit-
'A/2'). The vendees were not the co-sharers of the suit property and since purchase by the predecessor- in-interest of the defendant Nos. 1 & 2, they have been possessing the same all along.
(iv) The plaintiff is the grandson of Dhirendra.
(v) Sailendra sold his share of land allotted under the said deed of partition to Malati, wife of Pitambar by a registered sale-deed dated May 25, 1965(Exhibit-'A') including the Item NO.1, 2 and 3 of 'Unga' Schedule of 5 the Deed of Partition. Malati also acquired dwelling house with appurtenance including tank from her deceased husband, Pitambar.
(vi) Malati sold her right, title and interest in the suit property which she acquired by purchase from Sailendra in the suit property by executing a deed dated December 22, 1999(Exhibit-'A/1').
The declaration of right to pre-empt and the decree for pre- emption have been sought for in respect of the sale-deed dated December 22, 1999 (Exhibit-'A/1') executed by Malati in favour of the defendants. Such declaration of right and the decree for pre- emption have been sought for on the basis of the Deed of Partition dated September 5, 1931(Exhibit No.1).
In order to ascertain the right of the plaintiff, it will be proper to mention the relevant clause of the said Deed of Partition and as such the relevant Clause is reproduced below:-
1.(Chha)- "In case of necessity for sale or gift, such transfer would not be effected in favour of any person other than the 6 co-sharers."6
Thus, from the aforesaid Clause-(1).(Chha) of the Deed of Partition marked as 'Exhibit-1' in the title suit, it is evident that the sale or gift would be limited to the 6 co-sharers indicated above and dwelling house or its adjacent tank would not be sold to any third party.
In the instant appeal, the respondent is the heir of Dhirendra and as indicated above Dhirendra had already sold his right, title and interest in the plot No.779 which is a tank in suit and he had no share in the said plot after such sale in the year 1950 by Exhibit NO.'A/2'. Thus, by purchase, the predecessor-in-interest became the co-sharer of the tank in suit and at present the defendants became the co-sharers of the tank in suit by succession.
Upon analysis of the evidence-on-record, the Courts below have rightly concluded that the prayer as sought for in the said suit by the plaintiff is not under the provisions of Sections 8 and 9 of the West Bengal Land Reforms Act, nor under Section 4 of the Partition Act nor under the provisions of Section 22 of the Hindu Succession Act. But, the reliefs have been sought for under the said Clause-(1).(Chha) of the said Deed of Partition marked 'Exhibit-1' as noted above. The said clause No.(1).(Chha)is nothing but a negative covenant restricting the sale to any third 7 party other than the 6 co-sharers. But, from the facts stated earlier, it has been proved that Dhirendra, Predecessor-in- interest of plaintiff, had sold his entire interest in the tank in suit being plot No.779 to the third party as indicated above in the year 1950. His successor had filed the suit for pre-emption when Malati had sold her right, title and interest in the suit property which she acquired by purchase from Sailendra on May 25, 1965 by Exhibit-'A'.
As per decision of Ram Baran Prasad v. Ram Mahit Hazara & ors. reported in AIR 1967 Supreme Court 744, the pre-emption clause is not merely a personal covenant between the contracting parties but was a covenant binding on assignees or successors-in- interest of original contracting parties. Therefore, the successors-in-interest are also bound by the terms and conditions of the Partition Deed dated September 5, 1931. But, in the instant case, I find that predecessor-in-interest of the plaintiff, namely, Dhirendra himself did not comply with the terms and conditions of the Partition Deed and in violation of the said terms and conditions of the Deed of Partition, he had sold his entire share in the tank in suit to a third party, that is, the predecessor-in-interest of the defendant Nos.1 & 2. 8
Mr. Bhunia, learned Counsel appearing for the plaintiff submits that the plaintiff has lost his character as co-sharer in the tank in suit and so, the plaintiff cannot invoke the right of pre-emption at all by taking the aid of clause of pre-emption in the original Deed of Partition.
In support of his contention, Mr. Bhunia has referred to the decision of Indira Bai v. Nand Kishore reported in AIR 1991 Supreme Court 1055 and thus, he submits that the right of pre- emption is a weak and inequitable right - estoppel can be a good defence even failure to serve notice by the vendor on pre-emptor does not render the sale void.
Mr. Bhunia has also contended that since the predecessor of the defendant Nos. 1 & 2 had already acquired right, title and interest in the suit property by way of purchase by the Deed of 1950 and no pre-emption was sought for in respect of that right, title and interest in the suit property by any other co-sharer, the predecessor-in-interest of the defendants became the co-sharer and so, the subsequent transfer by the impugned deed of sale dated December 22, 1999 (Exhibit-'A/1') does not give rise any cause of action to claim the relief for pre-emption. Thus, Mr. Bhunia submits that since the defendants have already become co-sharers of the suit property, the pre-emption clause as mentioned in the 9 Deed of Partition has been waived by the parties by their conduct and as such the petitioners are not entitled to get the order of pre-emption.
In support of his contention, Mr. Bhunia has referred to the decisions of Hiru Sepai v. Sultan Sepai reported in AIR 1975 Calcutta 1, Dr. Jiwan Lal and ors. v. Brij Mohan Mehra & anr. reported in AIR 1973 Supreme Court 559.
Mr. Bhunia, has next referred to the decision of Jasoda Debi v. Ramchandra Shaw & ors. reported in 2002(2) CLJ 615 and thus, he submits that since the appellants herein are in possession of their purchased share from Dhirendra since 1950, it cannot be stated that the predecessor-in-interest of the defendants/appellants herein purchased without any notice and pre- emption was not sought for in respect of the Deed of 1950 and so, the prayer for pre-emption in respect of the subsequent deed of 1999 cannot be taken into consideration.
On the other hand, Mr. Chatterjee , learned Counsel appearing for the respondent submits that the learned Trial Judge committed wrong in passing the order of dismissal of the suit on the ground that the schedule of the property does not lay down the boundary and as such it cannot be stated that the tank in suit is adjacent 10 to the homestead. The Partition Deed had been made in the year 1931 when the property was not identified by boundary in all the sides but the Partition Deed 'Exhibit-1' clearly lays down that partition had been effected in respect of the dwelling house and the tank in suit situated adjacent to the dwelling house and so, the findings of the learned Trial Judge cannot be supported. The First Appellate Court has rightly set aside the judgment and decree and rightly allowed the first appeal preferred by his client.
In support of his contention, he has referred to the decision of Ram Baran Prosad & anr. v. Ram Mohit Hazra & anr. reported in AIR 1961 Calcutta 152 particularly the Paragraph Nos. 6,8 and 9. Thus, Mr. Chatterjee has submitted that the contractual pre- emption right is not necessarily personal and it binds successors and assignees and thus, he has concluded that the benefit and obligation under pre-emption clause in question would pass on not only to the representatives of the original parties, on the other side, including assignees or transferees, subject to the well- known exception, that bona fide transferees for value without notice would not be affected by the obligation. Thus, he has also submitted that such right is enforceable under Section 27(b) of the Specific Relief Act and Section 40 of the Transfer of Property Act.
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Mr. Chatterjee has also relied upon the decision of Ram Baran Prasad v. Ram Mohit Hazra & ors. reported in AIR 1967 Supreme Court 744 and thus, he submits that if the plaintiff did not exercise his right of pre-emption in respect of the deed of 1950, the right of pre-emption as agreed upon by the parties by the said Deed of Partition (Exhibit-1) does not extinguish or waive as contended by Mr. Bhunia and thus, he submits that the decision of AIR 1967 SC 744 is very much clear. In that respect, that the right of pre-emption can well be exercised in the subsequent occasion when the situation demands. He distinguishes the decision as referred to in 1991 SC 1055 and 2002(2) CLJ 615 contending, inter alia, that the provisions of the West Bengal Land Reforms Act or Section 4 of the Partition Act or Section 22 of the Hindu Succession Act will not be applicable here. Since, I have made observations in this regard earlier, I think this matter need not be discussed more.
Mr. Chatterjee has next referred to the unreported decision of a case of SA No.536 of 2006 and thus, he submits that decree of pre-emption can well be granted in favour of the respondent. With due respect to Mr. Chatterjee, I am of the view that this decision will not be applicable because of the fact that in that case the property was not partitioned before and the question of partition 12 of the unpartitioned dwelling house was involved therein and as such, it was observed that Section 22 of the Hindu Succession Act will be applicable and as such, in that case the order of pre- emption was granted. In the instant case, the partition had already been taken place long time back in 1931 and the jointness had been severed by the Deed of Partition. So, this decision will not be applicable.
Having considered the above admitted positions and the decisions made above, I am of the view that since the predecessor- in-interest of the plaintiff had already sold his entire right, title and interest in the suit property by Deed of Sale in the year 1950 and the predecessor-in-interest of the defendants had already acquired right, title and interest in the said property in 1950 and since then the predecessor-in-interest of the defendants and thereafter, his successors, that is, defendant Nos.1 & 2 had acquired right, title and interest in the suit property and no pre-emption was sought for in respect of that transaction of 1950, the defendant Nos.1 & 2 became the co-sharers of the suit property as successors of the original vendee. So, the plaintiff cannot invoke the right of pre-emption by taking the aid of the Clause(1).(Chha) of the deed of 1931. Under the circumstances, the decree of declaration and pre-emption as granted by the First Appellate Court, I hold, cannot be supported. The decision of AIR 13 1991 Supreme Court 1055 is very much clear and so, the First Appellate Court has failed to consider this aspect. The learned First Appellate Court has thus committed substantial error of law in granting the decree of pre-emption.
Similarly, the First Appellate Court has also failed to consider the fact that the defendants/appellants having become the co-sharers in the suit property, the clause of pre-emption of the deed of 1931 could not be invoked against them. The predecessor- in-interest of the plaintiff who was a signatory of the partition deed, having sold his entire share in the suit property, the term of restriction of sale stood waived. In fact, the said clause No.(1)(Chha) of the Partition Deed does not indicate that it is a right of pre-emption but a mere prohibition clause of transfer to an outsider.
The learned First Appellate Court has failed to take note of such fact and as such granted the decree of declaration and pre- emption wrongly.
The substantial question No.s1 & 2 are, thus, answered. Since, the predecessor-in-interest of the present plaintiff, namely, Dhirendra himself had repudiated the right of pre-emption 14 by his conduct and since he left no properties under the said plot no.779, I am of the view that no benefit of the pre-emption clause should be given to the heirs of Dhirendra.
In the result, the learned First Appellate Court has failed to appreciate the dispute and to pass appropriate orders on the basis of the evidence on record. The impugned judgment and decree, therefore, cannot be supported.
Both the substantial questions of law are, thus, answered. In the result, the appeal succeeds. Accordingly, the second appeal is allowed.
The judgment and decree dated December 18, 2004 passed by the First Appellate Court in Title Appeal No.24 of 2002 is hereby set aside.
The judgment and decree dated December 21, 2001 passed by the learned Trial Judge in Title Suit No.132 of 2000 is hereby affirmed.
Considering the circumstances, there will be no order as to costs.
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Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)