Calcutta High Court (Appellete Side)
Srimati Subrata Saha & Ors vs Sandip Kumar Basu & Ors on 5 January, 2026
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble Justice Rajasekhar Mantha
And
The Hon'ble Justice Ajay Kumar Gupta
FAT 88 of 2016
With
CAN 3 of 2019
With
CAN 4 of 2022
Srimati Subrata Saha & Ors.
-Versus-
Sandip Kumar Basu & Ors.
For the Appellants: Ms. Suparna Mukherjee, Ld. Sr. Adv.
Mr. Shounak Mukhopadhyay,
Mr. Kallol Saha,
Mr. Sourath Dutta,
Mr. Akash Ghosh.
For the Respondent No.: Mr. Probal Mukherjee, Ld. Sr. Adv.
Ms. Amrita Pandey,
Mr. Dinesh Bachar.
For the State: Mr. Swapan Banerjee,
Mrs. S. Shaw,
Mr. Soumen Chatterjee.
Heard on: 05.01.2026.
Judgment on: January 5, 2026.
Rajasekhar Mantha, J.:
1. The subject appeal has been filed against a judgment and decree in preliminary form, dated 19th November, 2015 passed by the Learned Civil 2 Judge (Sr. Division), 2nd Court, Barasat, South 24-Parganas in Title Suit No. 145 of 2002 (Sri Sandip Kr. Basu Vs. Smt. Subrata Saha & Ors.). FACTS OF THE CASE
2. The facts relevant to the case are that by a deed of conveyance dated 4th February, 1970, the plaintiff and defendant no. 4, in the suit, who are brothers, jointly purchased the immovable property comprising in land and building, measuring about 4 cottahs 2 sq.ft.
3. By a partition deed by and between the two brothers dated 19th July, 1985, the 4th defendant, who is not represented before this Court and did not independently contest the suit before the Trial Court, the property came to be divided. The 4th defendant got 2 cottahs 1 chitaks and 18 sq.ft. of the suit property along with a share in the structure standing thereon, the plaintiff/respondent got 1 cottah 14 chhitacks and 25 sq.ft.
4. Pursuant to the aforesaid partition deed dated 19th July, 1985, a wall was constructed in the property separating the portion of the defendant no. 4 (suit property) from that of the plaintiff/respondent.
5. The defendant no. 4 allowed one Sankar Naha Roy to run a motor repairing workshop-cum-garage therefrom the suit property.
6. Since December, 1999, the 4th defendant started residing away from the suit property. The plaintiff respondent resided in his portion of the said property.
7. Sometime on 1st December, 1999, the plaintiff/respondent received a letter from the defendant no. 4 intending to sell his portion of the 3 property and asked for an offer. Such invitation to offer was in terms of a clause in the partition deed dated 19th July, 1985 that if either of the Basu brothers intended to dispose of their portion in the property, a contractual pre-emption would be available to the other. Accordingly, the plaintiff/respondent offered to purchase the 4th defendant's portion of the property for a sum of Rs. 5 lakhs subject to delivery of vacant possession of the property free from all encumbrances.
8. In reply to a letter dated 20th June, 2002 written on behalf of the plaintiff, the 4th defendant stated that he had an offer from the defendant nos. 1, 2 and 3 to purchase the said property for Rs. 19 lakhs. The plaintiff was asked to match the offer.
9. By a letter dated 26th June, 2002, written on behalf of the plaintiff, he inter alia, to purchase the property at Rs. 19 lakhs subject to delivery of vacant possession thereof free from all encumbrances.
10. The defendant a replied by a letter dated 29th June, 2002, to the plaintiff's letter dated 26th June , 2002 as follows:
"1. That the said partition portion of my client at Premises No. P-193/A, Block-B, Lake Town, Kolkata-700089 will be sold to you on the agreed consideration price of Rs.19,00,000/- (Rupees Nineteen lacs) only "AS IS WHERE IS BASIS" on or before July 15, 2002 and the possession of the said building will be delivered on the date of registration i.e. July 15, 2002.
2. That my client is urgently in need of the sale proceeds for his personal requirement and for the treatment of his ailing father, Sri Sujit Kumar Basu.
3. That my client is willing and/or agreed to register a sale deed for his partition portion of the said building in favour of you positively on or 4 before July 15, 2002 on receipt of the said agreed consideration price on the said terms.
4. That my client hereby declare that he has not done anything against the said building premises by way mortgage, charge, liens, tenancy whatsoever manner and the same is free from all encumbrances. Be it mentioned that my client shall pay, if not already paid, Municipal Taxes and other impositions, Electric charges and other outgoings upto the date of Registration of the sale deed.
5. That my client has appreciated your gesture for acquiring my client's portion of the said partitioned building at or for the total consideration price of Rs.19,00,000/- (Rupees Nineteen lacs) only as per your cited letter dated June 26, 2002.
In the premises, you are hereby requested to draw up a draft indenture of sale for the said partition portion of the building premises being No. P- 193/A, Block-B, Lake Town, Kolkata-700 089 and please send the same to me or to my client at least 5 (five) days prior to the date of registration which will positively be executed on or before July, 15, 2002 for approval and please note that the entire consideration will be accepted only on DEMAND DRAFT of any Nationalised Bank of Kolkata in favour of my said client. If you fail to get registration on or before July, 15, 2002 in that event, my client is entitled to negotiate with the third party for disposing of the said property without any further reference to you assuming that you have waived the preemption clause as per the said partition deed dated July 19, 1985 and no further extension of time for the registration will be allowed and/or accepted as my client is badly in need of the money within the time framed as described hereinabove."
emphasis applied
11. It is clear from the above letter that the 4th defendant, agreed to sell his portion of the property to the plaintiff, on 'AS IS WHERE IS BASIS' for a sum of Rs. 19 lakhs. The said expression must be read in light of the statement in the 4th paragraph of the said letter, that the suit property was free from mortgage, charge, lien or tenancy and whatsoever manner and is free from all encumbrances.
12. The plaintiff/respondent, who was a seafarer reiterated his early acceptance of the 4th defendant's offer for purchase the property 5 for Rs. 19 lakhs and sought further time beyond 15th July, 2002 since he had to join his employment on a ship sailing from Mumbai. A cheque for Rs. 2.5 lakhs drawn on State Bank of India dated 5th July, 2002 was sent to meet the urgent requirements of the 4th defendant of funds for treatment of their ailing father.
13. The plaintiff however reiterated that the 4th defendant would have to handover the vacant and peaceful possession of the property after execution of the conveyance.
14. In reply thereto, by letter dated 13th July, 2002. the 4th defendant returned the cheque for Rs. 2.5 lakhs and reiterated that he would accept only a demand draft of the total consideration amount and would deliver the property on 'AS IS WHERE IS BASIS' as there was an occupier in the property. The presence of an occupier was stated for the first time in the said letter dated 13th July, 2002. It was further stated by the 4th defendant that he had received an increased offer for a sum of Rs. 24 lakhs in respect of the said property from third party most likely the defendant nos. 1 to 4.
15. By a letter dated 18th July, 2002, written on behalf of the plaintiff/respondent, it was that there was concluded contract between the parties to purchase the property at Rs. 19 lakhs, which was stated to have been payable on or before 30th September, 2002. It was reiterated that the 4th defendant had agreed to make over vacant and peaceful possession of the suit premises to the plaintiff, upon registration of conveyance.
6
16. The plaintiff, however, without prejudice to his rights and contentions agreed to pay the enhanced amount of Rs. 24 lakhs as demanded by the 4th defendant. The delivery of vacant possession, was not specifically referred to by the plaintiff in the said letter. The cheque for Rs. 2.5 lakhs was once again forwarded by the plaintiff to the 4th defendant.
17. The 4th defendant, however, by letter dated 25th July, 2002 stated that he was intending to dispose of the property for Rs. 24 lakhs on 'AS IS WHERE IS BASIS' on or before 30th July, 2002. The plaintiff by letter dated 1st August, 2002 once again reiterated that his client was willing to purchase the property for Rs. 24 lakhs on the condition that the 4th defendant would confirm that he had not let out the said premises to the occupier thereat.
18. It is, therefore, clear that the plaintiff was willing to purchase the property together with the occupier thereat. It is argued across the bar before this Court that the said occupier was at best a licensee and the 4th defendant could re-enter the property at any point of time. PROCEEDINGS BEFORE THE TRIAL COURT
19. Upon learning that the 4th defendant had sold the property to the defendant nos. 1, 2 and 3/the appellants herein, the plaintiff/respondent filed Title Suit No. 145 of 2002 before the Trial Court, inter alia, praying for a decree for specific performance of an agreement of sale against the 4th defendant, inter alia, for a declaration that the deed of conveyance registered by the 4 th 7 defendant in favour of the defendant nos. 1, 2 and 3, appellants was null and void.
20. In the Trial Court, a written statement appears to have been filed jointly by the defendant nos. 1, 2 and 3 (third party purchasers), namely, the Saha family and the 4th defendant, Shyamal Basu, brother of the plaintiff/respondent Sandip Basu.
21. All the aforementioned letters were proved by the plaintiff and marked as exhibits. The Trial Court found that there was an enforceable contract between the brothers, based on the exchange of letters referred to hereinabove. The 4th defendant did not contest the suit independently nor deposed therein. Even before this Court only the third party/appellants, namely, Saha family have filed the appeal.
22. The Trial Court based on contract between the plaintiff and the defendant no. 4, directed the plaintiff to deposit Rs. 24 lakhs with the Trial Court or pay the same to the appellants herein. The appellants were directed to convey the property to the plaintiff/respondent.
23. The Trial Court found that time could not have been the essence of a contract for sale and purchase of immovable property by reference to several decisions of the Supreme Court. It was further found that the pre-emption by way of contract existed between the plaintiff and the defendant no. 4.
ANALYSIS OF THIS COURT
24. The afore-quoted reply dated 29th June, 2002 by the defendant no. 4 to the plaintiff has resulted in a concluded contract between the 8 parties. In this regard, a conjoint reading of Sections 3, 4, 5 and 7 of the Indian contract Act, 1872 is called for. The said sections are set out below:-
3.Communication, acceptance and revocation of proposals.--The communication of proposals, the acceptance of proposals, and the revocation of proposals and acceptances, respectively, are deemed to be made by any act or omission of the party proposing, accepting or revoking by which he intends to communicate such proposal, acceptance or revocation, or which has the effect of communicating it.
4. Communication when complete.--
The communication of an acceptance is complete,-- as against the proposer, when it is put in a course of transmission to him, so as to be out of the power of the acceptor;
as against the acceptor, when it comes to the knowledge of the proposer.
5. Revocation of proposals and acceptances.-- A proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards.
An acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor, but not afterwards.
7. Acceptance must be absolute.--In order to convert a proposal into a promise, the acceptance must--
(1) be absolute and unqualified;
Emphasis applied
25. The defendant no. 4, accepted the plaintiff's offer by the said letter dated June 29th, 2002. He communicated his acceptance and agreement to sell the suit property to the plaintiff at the sum of Rs 19 lakhs. In terms of Section 4 of the Contract Act, the communication of the said acceptance to sell the suit property to the plaintiff was completed, and a contract sealed when the said letter dated June 29th, 2002 reached the plaintiff and/or came in the knowledge of the latter. It was no longer open for the defendant no. 4 to resile from the said contract. The defendant was thus estopped from selling the said property to the appellants. There was 9 unconditional acceptance of the plaintiff's offer by the defendant no. 4 in terms of section 7 of the Contract Act.
26. The terms and conditions relating to the amount of sale consideration; as to whether vacant possession free from any tenant will be handed over; and when the sale deed would be finally executed were kept open to be negotiated by the parties. This would be evident from the fact that the defendant no. 4 subsequently bargained for a higher sale consideration. He enhanced the sale consideration from 19 lakhs to 24 lakhs. The plaintiff also agreed to pay the said sum of Rs 24 lakhs.
27. The parties were therefore at ad idem on the point that the suit property must remain within the family only. The right of preemption thus was matured into and crystallized into a right to purchase the property in terms of the said aforequoted letter dated 29th June 2002.
28. The statement of objects and reasons of the Partition Act, 1893 recognizes that the people of this country are very attached to their family properties. It is essentially in this light that a statutory pre- emption is available in the provisions of the said Partition Act. A contractual pre-emption between two brothers arising out of a partition deed is more in the lines of the aforesaid Partition Act, 1893 as opposed to a pre-emption between unrelated parties albeit under a contract.
29. The Trial Court clearly found from the evidence of DW-2, namely, Lachimi Saha that she was wholly and completely aware of 10 the negotiations and agreements between the defendant no. 4 and the plaintiff/respondent. There is sufficient evidence before this Court to establish that the defendant nos. 1, 2 and 3 outsiders, could not have been bona fide purchasers for value. They had knowledge of the agreement between their vendor with the plaintiff.
30. The plaintiff/respondent was found by the Trial Court to be matching every offer received by the defendant no. 4 from the appellants herein from time to time.
31. The parties were only negotiating on the delivery of vacant possession of the suit property to the plaintiff. The plaintiff finally agreed to purchase the property with the licensee thereat as assured by the defendant No.4. There was no dispute, whether the plaintiff is ready and willing to purchase, or the 4th defendant's willingness to sell the suit property.
32. This Court is of the clear view that the defendant was willing to get the highest price for the suit property and it is with this view that he was testing the purchasing power of the plaintiff by enhancing the sale consideration from time to time.
33. In the peculiar facts and circumstances of the case, the demand by the plaintiff of vacant and peaceful possession and the defendant's offer to sell the property on 'AS IS WHERE IS BASIS' cannot be a ground for negating the existence of an agreement between two brothers. Such variance if any appears to have been substantially diluted in the letter dated 1st August, 2002 where the 11 plaintiff agreed to purchase the property along with the occupier even at a price at Rs. 24 lakhs.
34. Ms. Mukherjee, learned advocate for the appellants argues that the plaintiff had initially refused to accept the offer of Rs.24 lakhs by a letter dated 18th July, 2002 but had subsequently agreed to the same on 1st of August, 2002. Admittedly, the conveyance of the property in favour of the appellants was registered on 9th August, 2002. The argument advanced by Ms. Mukherjee, learned Senior Advocate appearing for the appellants/third party, therefore, cannot be accepted by this Court.
35. This Court finds that the Trial Judge has discussed in substantial detail the readiness and willingness on the part of the plaintiff/respondent to purchase the property from the 4 th defendant. The urgency of requirement of money on the part of the 4th defendant, appears to be more of a ruse to resile away from a pre- emption conceded to the plaintiff by the 4th defendant in the partition deed dated 19th July, 1985 and an intention to deprive his brother of the benefit of purchasing a portion of the joint property, adjoining his house.
36. The present appeal involves a suit for specific performance of an agreement to sell which has its origins in the partition deed executed between the brothers namely the plaintiff and the defendant no. 4. Thus right of the plaintiff to purchase the property also derives 12 force from the said partition deed in addition to the contract between the brothers.
37. The partition deed conferred upon the plaintiff a right to receive an offer from the defendant no. 4 when the latter seeks to sell the suit property. A pre-existing right thus accrued in favor of the plaintiff under the partition deed. The defendant's letter dated June 29, 2025 crystalized the said right of the plaintiff's right to purchase the suit property. The said agreement has to be considered in light of the said partition deed. The partition deed records a prior intention of the plaintiff and defendant no. 4 as regards the suit property.
38. The right of preemption is a remedial right, which enables the preemptor to acquire the whole property. The right of preemption confers a superior right to the preemptor on the property in question. The said right cannot be defeated by frivolous methods. The said right, therefore, in the present case where the plaintiff has fulfilled all the conditions relating to it cannot be negated by the defendant no.
4. Reference in this regard may be made to the decision of the Honorable Supreme Court in Bishan Singh Vs. Khazan Singh, reported in AIR 1958 SC 838, wherein it was held as follows::-
, "11. ... (1) The right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called the primary or inherent right.
(2) The pre-emptor has a secondary right or a remedial right to follow the thing sold.
(3) It is a right of substitution but not of re-purchase i.e. the pre-emptor takes the entire bargain and steps into the shoes of the original vendee. (4) It is a right to acquire the whole of the property sold and not a share of the property sold.13
(5) Preference being the essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place. (6) The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place.
Emphasis applied
39. Given the right of pre-emption in partition deed and the readiness and willingness of the plaintiff to purchase the suit property which is appurtenant to his present residence, the matching of offers made from time to time by the defendant no. 4 and the fact that the defendant no. 4 has not contested the suit or this appeal, this Court is of the view that a decree of specific performance is definitely in order.
40. In the light of the aforesaid, this Court is of the view that the impugned judgment and order does not call for any interference whatsoever.
41. The decisions of the Supreme Court cited by Ms. Mukherjee, learned Senior Advocate for the appellants that time is the essence of a contract, are distinguishable on facts, in the backdrop of the general proposition that time is not the essence of a contract in respect of sale and purchase of immovable property between the family members. Indeed there cannot be any straight jacket formula to lay down any binding principle of law in every case of sale and purchase of immovable property that time has to be the essence of the contract. Each case would depend on its own peculiar facts. 14
42. For the reasons stated above, FAT 88 of 2016 fails and hereby dismissed. Consequently, connected pending applications, if any, are also dismissed.
43. Let the Trial Court Records be sent back to the Trial Court by the Special Messenger at the cost of the respondents.
44. There will be no order as to costs.
45. All parties shall act on the server copy of this order duly downloaded from the official website of this Court.
(Rajasekhar Mantha, J.) (Ajay Kumar Gupta, J.)