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Jasoda Debi v. Ramchandra Shaw & Ors.

Calcutta High Court

Feb 25, 2002

Judgment

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High Court Summary — Hrishikesh Banerji, J.

Factual and Procedural Background

This appeal challenges an appellate order of the Additional District Judge, 14th Court, Alipore, which set aside a trial court dismissal dated 8 August 1979 in Title Suit No. 98 of 1974. The suit sought a declaration of the plaintiff's right of pre-emption in relation to the suit property and specific performance of a contract.

Facts as pleaded: Ramcharit Shaw owned premises (Nos. 7/4, 7/5 and part of 9, Munsigaunge Road) and died in 1966 leaving three sons (including the plaintiff). By a registered deed of partition dated 31 March 1968 the inherited property was partitioned among the three brothers. The deed included a pre-emption clause obliging a selling co-sharer to notify the others, who would have the right of pre-emption.

One brother, Harinarayan Shaw, died on 25 November 1974 leaving defendant Nos. 1–4 as his heirs. The plaintiff learned on 8 December 1974 that Harinarayan had purportedly sold his allotted share to defendant No. 5 on 9 November 1974 for Rs. 8,500. The plaintiff alleged no prior intimation of the sale was given and claimed the sale did not affect his pre-emption right; he offered to purchase and sought specific performance and conveyance from the heirs and defendant No. 5.

Defences at trial included the contention (by defendant No. 5) that the partition was void because some co-sharers had been left out, that the pre-emption stipulation had been waived, and that the plaintiff was estopped. The trial court dismissed the suit (order dated 8 August 1979). The First Appellate Court set aside that dismissal and decreed the suit, holding the deed of partition and its pre-emption clause valid and binding. The present appeal followed to the High Court.

Legal Issues Presented

Whether the disputes raised in the present suit are exclusively triable by the West Bengal Land Reforms and Tenancy Tribunal under the provisions of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 (i.e., whether the Tribunal has exclusive jurisdiction).
Whether the learned Additional District Judge (First Appellate Court) erred in reversing the trial court's finding that the deed of partition was void because all co-parceners were not parties and that the pre-emption clause in the deed was void.
Whether the court below erred in granting the discretionary relief of specific performance prayed for by the plaintiff.

Arguments of the Parties

Appellant (Mr. Bhuiya) — primary contentions

The appeal is not maintainable in the High Court because the suit property is a thika tenancy and the disputes are exclusively triable by the West Bengal Land Reforms and Tenancy Tribunal under the 1997 Act (with reference to the 1981 Act as a "specified Act").
Under section 5 of the 1981 Act, thika tenancy lands vested in the State, causing co-sharership to end and converting co-sharers into direct tenants under the State.
The deed of partition was void because not all co-parceners were made parties to the partition; therefore the First Appellate Court erred in validating it.
The decree of the court below is a nullity if passed without jurisdiction — reliance on several precedents emphasizing transfer of jurisdiction to tribunals and that consent cannot confer jurisdiction.
Defendant No. 5 purchased without notice of the pre-emption clause (argument ultimately rejected by the Court).

Respondent / Plaintiff (Mr. Dutta) — primary contentions

Section 6(3) of the 1981 Act makes interests of thika tenants heritable and non-transferable except inter se amongst heirs and existing co-sharers, or to prospective heirs; thus transfer inter se among heirs is saved and the 1981 Act does not take away the plaintiff's contractual pre-emption right.
The term "and" in the phrase "heirs and existing co-sharers-interest" is to be read disjunctively; transfers among heirs or among existing co-sharers are not within the mischief of section 6(3). The Court found support for this view in Dhirendranath Nath v. Mohadeb Nath (100 CWN 146).
The right of pre-emption arises on sale (not by bequest), and the present case involves a sale — the plaintiff's claim is therefore appropriate (reference to Rambaran Prosad v. Ram Mohit Hazra that pre-emption binds assignees and successors-in-interest).
The purchaser (defendant No. 5) had notice of the partition deed and thus of the pre-emption clause (the defendant admitted her lawyer was shown the deed).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kiran Singh v. Chaman Paswan, AIR 1954 SC 340	Decree passed without jurisdiction is a nullity and can be set up wherever enforcement is sought.	The Court noted the principle but held that the cited precedents about jurisdiction/transfer to tribunals did not apply to the facts because the 1997 Act did not authorize the Tribunal to entertain this suit for specific performance of a pre-emption clause in a partition deed concerning a thika tenancy.
SSS Oil Mills Ltd. v. Judge, 65 CWN 478	Matters affecting jurisdiction cannot be treated as purely discretionary; consent does not create jurisdiction.	Referenced for the proposition that jurisdictional defects cannot be cured by consent; Court found the line of authorities on transfer of jurisdiction to tribunals inapplicable here for reasons stated about the 1997 Act.
Chiranjilal Shrilal Goenka (deceased) through LRs. v. Jasjit Singh, (1993) 2 SCC 507	Decree passed without jurisdiction is a nullity (paragraphs 18–20).	Cited among decisions about jurisdictional changes; the Court concluded these decisions did not govern the present dispute because the statutory scheme under the 1997 Act did not oust the civil court's jurisdiction over this specific suit.
Allahabad Bank v. Canara Bank, (2000) 4 SCC 406	Where a change of law confers exclusive jurisdiction on a Tribunal, civil suits pending before Courts may require transfer to the Tribunal; Courts must take judicial notice of change of law.	Not applied to the present facts. The Court observed that decisions transferring jurisdiction in other statutory contexts (e.g., bank recovery) do not authorize the Tribunal to try this suit under the 1997 Act.
United Bank of India v. Abhijit Tea Co. Pvt. Ltd., (2000) 7 SCC 357	Civil Courts should transfer or decline to continue proceedings where exclusive jurisdiction has been conferred on a Tribunal by legislation.	Referenced; Court held the principle inapplicable because the 1997 Act's reach did not extend to the enforcement of a contractual pre-emption clause in a partition deed of a thika tenancy in the manner contended by the appellant.
Bhagawant P. Sulakhe v. Digambar Gopal Siilakhe, AIR 1986 SC 79	Character of joint family property does not change with severance of joint family status; joint family property retains its character until partition.	The Court stated the decision was inapplicable because in the present case the property had been partitioned by the 31 March 1968 deed.
Smt. Durgarani Devi v. Mohiuddin, 86 CLJ 198	A Karta may effectively represent members of his branch in partition so as to make a partition valid even though not all members of a branch are individual parties.	The Court relied on this reasoning to support the First Appellate Court's finding that the deed of partition was not void merely because not every member of each branch was individually named; the Karta's representation was sufficient.
Kaivelikkal Ambunhi (dead) by LRs. v. H. Ganesh Bhandary, AIR 1995 SC 2491	Rules of interpretation of wills differ from interpretation of other instruments; in wills later portions may prevail over earlier.	The Court observed this principle but found it inapplicable because the deed of partition contained a clear pre-emption clause (clause 8) consistent with the allotment clauses; no conflict requiring will-type interpretation arose.
Vijay Lakshmi (Smt.) v. B. Himantha Raju Chetty, 1996 (9) SCC 376	The right of pre-emption arises on sale and not on bequest by will (paragraph 16).	The Court noted the principle but found it not directly applicable because the present claim concerns a sale (not a bequest) sought to be pre-empted.
Rambaran Prosad v. Ram Mohit Hazra, AIR 1967 SC 744 (affirming AIR 1961 Calcutta 151)	Pre-emption clause in an award of partition is binding on assignees and successors-in-interest of original contracting parties.	The Court cited this authority in support of the proposition that a contractual pre-emption right in a partition deed can bind successors/assignees, supporting the plaintiff's claim to enforce pre-emption against the purchaser and heirs.

Court's Reasoning and Analysis

The Court's analysis proceeded in distinct steps tied to the three substantial questions of law identified in the appeal.

Jurisdiction under the 1997 Act / Tribunal question:
- The appellant argued that because the suit property is a thika tenancy, the Tribunal (constituted under the 1997 Act) had exclusive jurisdiction to try disputes arising under the specified Acts (including the 1981 Act).
- The Court examined the provisions of the 1981 Act (notably section 5 and section 6(3)) and the 1997 Act (sections cited by counsel). It concluded that the enforceability of the contractual right of pre-emption contained in the deed of partition does not arise out of a dispute under the specified Acts such that the Tribunal would have exclusive jurisdiction.
- The Court held that the 1981 Act's provisions do not apply so as to oust the civil court's jurisdiction to try a suit for specific performance to enforce a pre-emption clause arising from a partition deed; transfer inter se amongst heirs of a thika tenant is saved by the 1981 Act and does not automatically convert the dispute into one for the Tribunal.
Interpretation of section 6(3) of the 1981 Act and effect on pre-emption:
- The Court quoted sub-section (3) of section 6: "The interests of thika tenants and other lands holding directly under the State ... shall be heritable and shall not be transferable except inter se amongst the heirs and existing co-sharers-interest or to the prospective heirs..."
- Relying on counsel for the respondent and a decision (Dhirendranath Nath v. Mohadeb Nath), the Court read the phrase "heirs and existing co-sharers-interest" disjunctively, construing transfers among heirs (inter se) and among existing co-sharers as outside the mischief of the prohibition on transfer.
- Consequently, the Court found that termination of co-sharership as a legal status did not defeat the plaintiff's contractual pre-emption right arising from the partition deed.
Validity of the deed of partition and pre-emption clause:
- The First Appellate Court had held the deed and its pre-emption clause valid. The High Court reviewed authorities and facts relevant to that conclusion.
- On the contention that not all members of each branch were made parties to the partition, the Court relied on Durgarani Devi v. Mohiuddin to conclude that a Karta can represent branch members so that the partition need not be void for that reason. Thus the First Appellate Court did not err in concluding the deed was valid.
- The Court examined clause 8 of the deed (pre-emption clause) and found no inconsistency with earlier clauses that made absolute allotments; the placement of the pre-emption clause at clause 8 did not render it void.
Notice to purchaser and entitlement to specific performance:
- The appellant's claim that defendant No. 5 purchased without notice was tested against the defendant's own admission in cross-examination that her lawyer handled the purchase and was shown the deed of partition. The Court held that the purchaser had notice of the pre-emption clause.
- Given notice and the validity of the pre-emption clause, the Court concluded that the First Appellate Court was justified in granting the discretionary relief of specific performance (i.e., enforcement of the pre-emption clause against the purchaser and heirs).
Application of precedents on jurisdictional transfer:
- The Court considered the line of Supreme Court precedents dealing with transfers of jurisdiction to statutory tribunals (examples cited concerned other statutory regimes such as debt recovery). It concluded that those authorities were not applicable to the present facts because the 1997 Act did not authorise the Tribunal to take over adjudication of this particular suit for specific performance enforcing a contractual pre-emption clause in a partition deed of a thika tenancy.

Holding and Implications

Holding: The High Court dismissed the appeal. The operative directions in the opinion are:

APPEAL DISMISSED.
All interim orders stand vacated.
No order as to costs.

Implications:

The decree of the First Appellate Court (which set aside the trial court's dismissal and decreed the suit — upholding the deed of partition and the pre-emption clause and granting specific performance) stands affirmed by virtue of dismissal of this appeal.
The Court's reasoning limits the scope of the 1997 Act's Tribunal jurisdiction in this context: the enforceability of a contractual pre-emption clause in a partition deed between co-sharers of a thika tenancy was treated as outside the exclusive domain of the Land Reforms and Tenancy Tribunal under the statutory framework as interpreted in this opinion.
The opinion does not purport to lay down a broad new precedent beyond the immediate statutory and factual determinations; the direct effect is that the plaintiff's contractual remedies (declaration and specific performance) in respect of the partition deed were available and enforceable against the purchaser and heirs in the civil courts in this case.

Result recorded in the opinion: Appeal dismissed; interim orders vacated; no costs.

Show all summary ...

Hrishikesh Banerji, J.:— This appeal is directed against the appellate order passed by the learned Additional District Judge, 14th Court, Alipore whereby he set aside the order of dismissal dated August 8, 1979 passed by the learned Subordinate Judge, 7th Court, Alipore in Title Suit No. 98 of 1974. The suit is one for declaration of the plaintiffs right of pre-emption in respect of the suit property and for specific performance of contract.

2. The plaint case is that one Ramcharit Shaw who owned premises Nos. 7/4, 7/5 and part of 9, Munsigaunge Road, P.S-Watgaunge, died in the year 1966 leaving his three sons including the plaintiff who jointly inherited the property in equal share. By a registered deed of partition executed on March 31, 1968 the inherited property was partitioned amongst the three brothers. It was provided in the deed of partition that if any of the parties intended to sell his allotted property he would intimate the others about his intention to sell and the other parties would have the right or pre-emption to purchase the property of the party intending to sell his share. One of the brothers Harinarayan Shaw died on November 25, 1974 leaving the defendant Nos. 1 to 4 as his heirs and legal representatives but on December 8, 1974 the plaintiff learnt that Harinarayan Shaw had sold his right, title and interest in the suit property which was the allotted share of Harinarayan Shaw to the appellant-defendant No. 5, a stranger, on November 9, 1974 at a consideration of Rs. 8500/- but no intimation was given to the plaintiff about any intention of such sale.

3. The plaintiff's case is that such sale to the defendant No. 5 is not binding on the plaintiff and it could not affect the plaintiffs right of pre-emption. It is further alleged by the plaintiff that the defendant No. 5 got the Kobala executed by Harinarayan Shaw with full knowledge of pre-emption clause contained in the partition deed. The plaintiff has been ready and willing to purchase the suit property from the defendant No. 5 and the defendant Nos. 1 to 4 being the heirs and legal representatives of Harinarayan are bound to execute the deed of conveyance in favour of the plaintiff together with the defendant No. 5.

4. Contesting the suit the defendant No. 5 contends that Ramcharit Shaw who was a Hindu, governed by the Mitakshara School of Hindu Law, died leaving his three sons and daughter and several grand-children as his legal representatives and those co-sharers having been left out the partition has been void in law. It is further stated that the plaintiffs and the co-sharers themselves waived the stipulation as to pre-emption and that the plaintiff is estopped from claiming such right.

5. The Lower Appellate Court set aside the order of dismissal by the trial court, and decreed the suit holding that both the deed of partition and the pre-emption clause contained therein were valid and binding on the parties.

6. The substantial questions of law in this appeal are:—

(1) whether the disputes raised in the present suit are exclusively triable by the West Bengal Land Reforms and Tenancy Tribunal (the ‘Tribunal’ for short);

(2) whether the learned Additional District Judge erred in law in reversing the decision of the learned Munsif who held the deed of partition to have been a void document on the grounds that all the co-parcenars were not parties to the partition and that the pre-emption clause in the deed is void;

(3) whether the court below erred in granting the discretionary relief prayed for by the plaintiff.

7. Mr. Bhuiya, appearing for the appellant contends that the present appeal is not maintainable in this Court but should be sent to the Tribunal as the suit property is a thika tenancy property in respect of which the Tribunal has the exclusive jurisdiction to adjudicate the disputes and applications relating to matters under any provision of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 1981 (the ‘1981 Act’ for short) which is one of the specified Acts as defined in section 2(r) of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 (the ‘1997 Act’ for short).

8. This contention is without any substance inasmuch as the present appeal arises out of a suit praying for relief under the provisions of the Specific Relief Act, 1963 and the 1981 Act has no application to the disputes raised in the present suit inasmuch as transfer inter se amongst the heirs of the thika tenants has been saved by the provisions of the 1981 Act.

9. Referring to the Full Bench decision of this Court in the case of Madan Mohan Ghosh v. Sishu Bala Atta, reported in 76 CWN 1058, Mr. Bhuiya submits that under the provisions of section 5 of the 1981 Act, lands comprised in thika tenancies vested in the State w.e.f the date of commencement of the 1981 Act and as a result of such vesting each co-sharer of the thika tenancies become a direct tenant under the State and the co-sharership came to an end.

10. Mr. Dutta, appearing for the plaintiff-respondent contends that under the provisions of section 6(3) of the 1981 Act, the interest of thika tenants holding directly under the State shall be heritable and shall not be transferable except inter se amongst the heirs and existing co-sharers-interest or to the prospective heirs subject to the provisions of sub-section (1) of section 7 of the said Act.

11. Sub-section (3) of section 6 of the 1981 Act is as follows:

“The interests of thika tenants and other lands holding directly under the State under sub-section (1) shall be heritable and shall not be transferable except inter se amongst the heirs and existing co-sharers' interest or to the prospective heirs subject to the provisions of sub-section (1) of section 7.”

(emphasis supplied)

12. Mr. Dutta also contends that in such circumstances termination of co-sharership does affect the plaintiffs right of pre-emption inasmuch as transfer amongst the heirs even after the co-sharership came to an end does not come within the mischief of sub-section (3) of section 6 of the Act. The words ‘the heirs and existing co-sharers-interest or to the prospective heirs’ appearing in sub-section (3) make it clear that transfer amongst the heirs as also amongst the existing co-sharers-interest would not come within the mischief of this sub-section as the word ‘and’ appearing in the expression ‘heirs and existing co-sharers-interest’ is disjunctive. In this view I find support from a decision of this Court in the case of Dhirendranath Nath v. Mohadeb Nath, reported in 100 CWN 146.

13. Referring to sections 3, 4, 6(d), 6(e) and sections 7, 8 and 9 of the 1997 Act Mr. Bhuiya contends that the Tribunal constituted under the 1997 Act shall exercise all the jurisdiction, power and authority exercisable immediately before the commencement of the 1997 Act by any Court including the High Court except, the writ jurisdiction under Articles 226 and 227 of the Constitution exercised by a Division Bench of the High Court, but excluding the Supreme Court for adjudication or trial of disputes and application relating to land reforms and matters connected therewith or incidental thereto and other matters arising out of a provision of a specified Act.

14. In the present case the disputes do not relate to land reforms and matters connected therewith or incidental thereto and other matters relating to any provision of a specified Act. Although the 1981 Act is a specified Act, the enforceability of the right of pre-emption as contained in the deed of partition amongst the plaintiff/appellant and his co-sharers cannot be said to have arisen out of a dispute or an application relating to land reforms and other matters arising out of any provision of the 1981 Act or of any other specified Act. Therefore, the disputes raised in the present suit do not come within the purview of any of the sections of the 1997 Act referred to by Mr. Bhuiya.

15. In support of his contention that the decree passed by the Court below is a nullity, Mr. Bhuiya refers to the following decisions:—

1. AIR 1954 SC 340 (Kiran Singh v. Chaman Paswan),

2. 65 CWN 478 (SSS Oil Mills Ltd. v. Judge, 2nd Industrial Tribunal),

3. (1993) 2 SCC 507 (paragraphs 18, 19 & 20) (Chiranjilal Shrilal Goenka (deceased) through LRs. v. Jasjit Singh),

4. (2000) 4 SCC 406 (Allahabad Bank v. Canara Bank) (paragraphs 21, 22 & 23),

5. (2000) 7 SCC 357 (United Bank of India, Calcutta v. Abhijit Tea Co. Pvt. Ltd.) (paragraphs 20 & 22).

16. In AIR 1954 SC 340 (supra) it has been held that a decree passed without jurisdiction is a nullity. Its invalidity can be set up wherever and whenever it is sought to be enforced or relied upon even at the stage of execution and even in collateral proceedings.

17. In 65 CWN 478 (supra) it was held that a matter affecting jurisdiction could not be treated as discretionary and consent would not create jurisdiction. In the decision reported in 1993 (2) SCC 507 (supra) also it was held that the decree passed by a Court without jurisdiction is a nullity and is non-est.

18. The effect of legislation like the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (the ‘1993 Act’ for short) on a pending suit filed by the appellant for recovery of Rs. 31 crore from the respondent/Company was considered by the Supreme Court in the decision reported in (2000) 7 SCC 357 (supra) and it was held by the Apex Court in the said case that the Civil Court was bound to take judicial notice of the change of law and to direct transfer of the Bank's suit to the appropriate Tribunal for entertaining the same in accordance with the provisions of the 1993 Act. Similar view of exclusive jurisdiction of the Tribunal in regard to adjudication of the applications from the Banks and Financial Institutions for recovery of debts due to such Banks and Financial Institutions has been held by the Apex Court in the decision reported in (2000) 4 SCC 406. But none of the five decisions is applicable to the facts of the present case as the provisions of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 which came into force during the pendency of the second appeal now before this Court do not authorise the Tribunal to entertain the suit before this Court, for specific performance of contract to enforce the pre-emption clause in the deed of partition only because the suit property is a thika tenancy holding as explained in paragraphs 12, 13 & 14 above.

19. Mr. Bhuiya has also referred to the decision in the case of Bhagawant P. Sulakhe v. Digambar Gopal Siilakhe, reported in AIR 1986 SC 79, where it has been held by the Supreme Court that the character of any joint family property does not change with the severence of the status of joint family and the joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co-sharers. Since there is no dispute that the joint family property in the instant suit was partitioned by virtue of the deed of partition dated March 31, 1968, the above decision has no application to the facts of the present case.

(emphasis supplied)

20. Referring to the decision in the case of State Of Rajasthan v. Harphool Singh (Dead) Through His Lrs (dead) through LRs., reported in (2000) 5 SCC 652, Mr. Bhuiya contends that the Appeal Court validated the deed of partition on the ground that although the plaintiff had not stated in his plaint or in his evidence that he represented the group, the Appellate Court erred in making out such a case for the plaintiff.

21. The Appellate Court held that the three sons of the late Ramcharit Shaw were the heads of all the branches and each branch took per stripe as regards every other branch but the members of each branch would take per capita as regards each other.

22. In this connection Mr. Dutta refers to the decision in the case of Smt. Durgarani Devi v. Mohiuddin, reported in 86 CLJ 198. In the said case the ancestral property was partitioned by a deed of partition amongst the five branches of co-sharers and all the members of a particular branch were not made parties in the partition but the Karta only thereof was made a party. In such circumstances it was held by the Court that the property was duly partitioned as the Karta of the joint family consisting of himself and the other members of that branch effectively represented all the members of that branch in the partition. As the First Appellate Court duly considered this legal position it cannot be said that the said Court committed an error in describing the mode of succession to the property left by Ramcharit Shaw reversing the finding of the Trial Court that the deed of partition was void as all the members of each branch were not made parties to the deed.

23. Mr. Bhuiya also refers to the decision in the case of Kaivelikkal Ambunhi (dead) by LRs. v. H. Ganesh Bhandary, reported in AIR 1995 SC 2491, where it has been held that the “rules of interpretation of Wills are different from the rules which govern the interpretation of other documents like a sale deed or a gift deed or a mortgage deed or for that matter, any other instrument by which interest in immovable property is created. While in these documents, if there is any inconsistency between the earlier or the subsequent part or specific clauses inter se contained therein, the earlier part will prevail over the later as against the rule of interpretation applicable to a Will under which the subsequent part, clause or portion prevails over the earlier part on the principle that in the matter of ‘Will’ the testator can always change his mind and create another interest in place of the bequest already made in the earlier part or on an earlier occasion. Undoubtedly, it is the last Will which prevails.

24. This decision is not at all applicable to the facts of the present case. In clause 8 of the deed (Exbt. 1) it is specifically stated that in case any of the parties intended to sell his allotted share he would have to inform the other parties of such sale by a letter by registered post within three months. The party sending such letter would have to sell the property if any of the other parties intended to purchase within three months from the date of the despatch of the letter communicating the intention of sale. If the intending seller did not receive any written reply or did not intimate their intention to purchase the intending seller's share at the price mentioned by the seller, the latter would be at liberty to sell the property to a stranger. From a reading of the entire deed of partition nothing is found to suggest that there is any clause contrary to clause 8 of the deed of partition which provides for the right of pre-emption in the said deed. It is found that the shares were given absolutely to each of the parties to the deed of partition by clauses 1, 2 & 3 of the said deed and the pre-emption clause appears at clause 8 of the deed. Only because the pre-emption clause is given in clause 8 of the deed of partition it cannot be said that the deed is void because pre-emption clause is generally given in such deeds after the allotment of the shares to different parties.

25. Mr. Bhuiya also argues that the defendant No. 5-appellant purchased the suit property without notice of the pre-emption clause in the deed of partition. This argument is, however, without any merit inasmuch as the defendant No. 5-appellant, examined as D.W 1 in the Trial Court, in her cross-examination admits that her lawyer, Paresh Babu did everything regarding the purchase of the suit property and that the deed of partition was shown to her lawyer viz., Paresh Babu. Therefore, it cannot be said that the appellant purchased the suit property without notice of the pre-emption clause in the deed of partition.

26. Mr. Dutta, appearing for the respondent No. 1 has referred to the decision in the case of Vijay Lakshmi (Smt.) v. B. Himantha Raju Chetty, reported in 1996 (9) SCC 376 (paragraph 16) in support of his contention that the right of pre-emption arises only on the sale of property and not following a bequest under a Will. This decision is not applicable to the facts of the present case as it is the sale to the appellant and not any bequest by Will which is sought to be pre-empted in the present suit.

27. Mr. Dutta refers to the decision in the case of Rambaran Prosad v. Ram Mohit Hazra, reported in AIR 1967 SC 744, affirming the decision of the Calcutta High Court in the said case reported in AIR 1961 Calcutta 151. The Apex Court held in the facts and circumstances of the said case that pre-emption clause in an award of partition was binding on assignees and successors-in-interest of the original contracting parties. In the present case also the plaintiff seeks to establish his right of pre-emption by virtue of the contract amongst the parties to the deed of partition.

28. The contention of Mr. Bhuiya that the Court below erred in granting the discretionary relief prayed for by the plaintiff is without any substance. It has been clearly established that the respondent No. 3 purchased the property sought to be pre-empted with notice of such pre-emption clause in the deed of partition. Therefore, it cannot be said that the First Appellate Court committed any error in granting the discretionary relief of the specific performance of contract in respect of the right of pre-emption as contained in the deed of partition.

29. In view of the above I find that the present appeal is not sustainable and the same is dismissed. All interim orders stand vacated.

30. No order as to costs.

Appeal dismissed.

S.K.P