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High Court Of Calcutta
R. N. PYNE, PRABIR KUMAR MAJUMDAR
NIRUPOMA BASAK - Appellant
Versus
BAIDYANATH PRAMANICK - Respondent
Appeal 1666 Of 1981
Decided On : 12/21/1984
PARTITION ACT, 1893 - SECTION 4 - APPLICATION FOR PURCHASE OF UNDIVIDED SHARE - CONDITIONS PRECEDENT - DWELLING HOUSE BELONGING TO UNDIVIDED FAMILY - CHANGE IN CHARACTER OF PROPERTY - APPLICABILITY OF SECTION 4 - ESTOPPEL - WAIVER OF RIGHT.
Fact of the Case:
The appellants, co-sharers of the dwelling house belonging to an undivided family, filed an application under Section 4 of the Partition Act, 1893, for purchase of the respondent's undivided 5/6th share in the said premises. The respondent, who had purchased the undivided shares of other co-sharers, contended that the appellants were estopped from exercising their right of pre-emption under Section 4 of the Act, and that they had waived their right by their conduct.
Finding of the Court:
The Court held that the appellants were entitled to exercise their right of pre-emption under Section 4 of the Partition Act, 1893, and that the respondent was not entitled to the benefit of promissory estoppel or waiver. The Court found that the nature and character of the property had not changed, and that the appellants had not made any representation that they would not exercise their right of pre-emption under the statute.
Issues: 1. Whether the appellants were estopped from exercising their right of pre-emption under Section 4 of the Partition Act, 1893? 2. Whether the appellants had waived their right to pre-empt the respondent's undivided share in the dwelling house?
Ratio Decidendi: 1. The Court held that the appellants were not estopped from exercising their right of pre-emption under Section 4 of the Partition Act, 1893, as they had not made any representation that they would not exercise their right of pre-emption under the statute. 2. The Court held that the appellants had not waived their right to pre-empt the respondent's undivided share in the dwelling house, as the right of pre-emption accrues to a shareholder only after a partition suit is filed by the stranger purchaser.
Final Decision: The Court allowed the appeal and sent the matter back to the trial court for disposal in accordance with Section 4 of the Partition Act, 1893.
( 1 ) THIS appeal is directed against the judgment and order dated May 18, 1981 passed by S. C. Deb, J. dismissing the appellants' application under S. 4 of the Partition Act, 1893 for purchase of the undivided 5/6th share from the respondent who purchased the same in the dwelling house of the appellants from other co-sharers. To understand the points in issue brief facts of the case may be stated.
( 2 ) PREMISES No. 45, Nanda Ram Sen Street (hereinafter referred to as 'the said premises') was the ancestral dwelling house of the appellants and their other co-sharers. One Gopi Ballav Pramanick alias Basak had undivided 1/2 share of the said premises. On or about 11th July, 1975 Gopi Ballav Basak sold his undivided 1/2 share in the said premises to the respondent It is alleged by the respondent that when Gopi Ballav Basak offered his undivided 1/2 share of the said premises for sale to the respondent the respondent stated to Gopi Ballav Basak that the said share should be offered first to the other co-sharers and accordingly Gopi Ballav Basak in the presence of the respondent offered to sell his undivided 1/2 share to all co-sharers, namely, Nadia Behari Basak, Brindaban Basak, Santosh Basak, Bimal Basak and Nirmal Kumar Basak. The other co-sharers declined to purchase Gopi Ballav's undivided 1/2 share and represented to the respondent that they had no objection if the said share was sold to the respondent. Thereafter, at the respondent's request the respondent Nos. 2, 3, 4 and 5 on behalf of themselves and cither co-sharers and Nadia Behari Basak gave declarations in writing dated 22nd June, 1975 stating that they declined to purchase the said 1/2 share of Gopi Ballav Basak. It is stated by the respondent that similar letter and/or declaration in writing dated 5th July, 1975 was given by Brindaban Basak to the respondent. The said writings contain as follows:"i decline to purchase the half share of my elder cousin brother Sri Gopi Ballav Basak in premises No. 45, Nanda Ram Sen Street, Calcutta-5 as offered to me. Nadia Behari Basak. 22-6-1975". "we decline to purchase the half share of our uncle Sri Gopi Ballav Basak in premises No. 45, Nanda Ram Sen Street, Calcutta-5 as offered to us. 1. Santosh Basak. 2. Bimal Basak. "3. Nirmal Kumar Basak. 23-6-1975". "i decline to purchase the half share of my elder cousin brother Sri Gopi Ballav Basak in premises No. 45, Nanda Ram Sen Street, Calcutta-5 as offered to me. Brindaban Chandra Basak. 15-7-1975. "
( 3 ) IT is further stated by the respondent that immediately after the sale of his undivided share Gopi Ballav Basak delivered vacant possession of three rooms and attached kitchen and privy in the first floor and one room on the ground floor of the said premises to the respondent which were in the occupation of the said Gopi Ballav Basak. Simultaneously with the sale of the said 1/2 share by Gopi Ballav Basak to the respondent, Gopi Ballav Basak issued necessary letters of attornment to the tenants of the said premises and since the date of purchase the respondent with the knowledge and consent of the other co-sharers was collecting his 1/2 share of total rent from the tenant of the said premises. It is also stated by the respondent that after such sale he had his name mutated as one of the co-owners of the said premises in the records of the Calcutta Corporation and has been paying his half share of the Corporation's rates and taxes in respect of the said premises.
( 4 ) ON or about 12th July, 1978 one Bimal Chandra Das, Solicitor for the respondent addressed a letter to the appellants including the other co-sharers for amicable partition of the said premises. In spite of such letter it is alleged that no steps were taken by the other co-shass b including the appellants. It is stated by the respondent that he purchased 1/2 share of the said premises with the consent of the other co-sharers including the appellants and they acquiesced to the purchase made by the responde
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