1. This appeal is directed against the judgment and decree dated 29-3-1974 and 2-4-1974 respectively passed by the learned Additional Subordinate Judge, Tripur??? at Agartala in Title Suit No. 22 of 1973. On 3.4.1970, the appellant-defendant executed an agreement (Exhibit—1) in favour of the respondent-plaintiff by which the appellant agreed to sell a part of his homestead situated at Banamalipur for a sum of Rs. 15,000/- to the respondent and also accepted a sum of Rs. 500/- as earnest money. It was further agreed that necessary deed would be executed in the first part of the following month on receipt of the balance amount of consideration. It is alleged that plaintiff-respondent was ready and willing to perform his part of the agreement and as the appellant did not perform his part, on 17.4.1970, Page: 291the respondent issued a registered notice through his Advocate. As the appellant did not execute the sale deed after taking the balance of the consideration money, the present suit was filed praying for a decree for specific performance of the said agreement and also for possession.
2. Prior to the filing of the present suit, the brother of the appellant filed a suit against both the appellant and respondent and the said suit was registered as Title Suit No. 10 of 1970.
3. The suit was decreed against both the appellant and respondent and an injunction was issued restraining the appellant from allowing respondent to enter the suit property and respondent was also restrained from interferring and disturbing the possession of the plaintiff of that suit, Sri Amarendra Mukherjee. Amarendra Mukherjee is the brother of the present appellant. The said suit was filed in respect of the joint dwelling house belonging to the undivided family of said Amarendra Mukherjee, his brother, the present appellant and their aunt. From the judgment of the said suit (exhibit-A) it transpires that the present appellant was unwilling to sell his share of the undivided property to his brother, the plaintiff of that suit, Amarendra Mukherjee or to his aunt Smti. Nihar kana Debi, pre-defendant No. 3 of the said suit and instead was trying to sell the property to a outsider viz. the present respondent and hence the suit was filed.
4. Present suit was contested by the appellant who denied the allegations that the respondent offered the balance consideration money though he admitted the receipt of the registered notice. The appellant also stated that he was willing to per-form his part of agreement, but he could not do so in view of the perpetual injunction granted in the above Title Suit No. 10 of 1970.
5. On the pleadings, the learned trial court framed as many as 5 issues and ultimately decreed the suit. However, the learned trial court refused to grant decree for khas possession and hence this appeal.
6. There is no dispute that the agreement for sale was in respect of a part of the dwelling house belonging to an un-divided family and that present appellant agreed to execute the agreement of sale with the respondent, who is a stranger. Page: 292It is also not disputed that there was no partition of the property in question. The parties are also governed by Hindu Succession Act, 1956. From the judgment (exhibit-A), I find that originally the land was taken on settlement by the husband of the Pro-defendant No. 3 of the suit i.e the uncle of the two brothers from the then Maharaja, Tripura and thereafter the land devolved upon the appellant, his brother Amarendra Mukherjee and their aunt Smti. Nihar Kana Debi.
7. Section 22 of the Hindu Succession Act 1956 inter alia, provides that an interest in any immovable property of an intestate devolves upon two or more heirs and anyone of such heirs proposes to transfer his or her interest in the said property, the other heirs shall have a preferential right to acquire the interest proposed to be transferred. In the instant case as stated earlier though the brother of the appellant, Amarandra Mukherjee acquired a preferential right to acquire the share of appellant, the appellant was un-willing to part his share and as such the earlier suit has to be filed. I am, therefore, of the opinion that as the present agreement (exhibit-1) was executed in violation of section 22 of the Hindu Succession Act, 1956, the said agreement is not enforceable in a court of law.
8. section 4 of the Partition Act 1893, inter alia, provides that where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family, and such transferee sues for partition, the court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share and direct the sale of such share to such shareholder. Though the learned trial court decreed the suit partly he left the respondent to get possession according to section 44 of the Transfer of Property Act or under the provision of Partition Act.
9. In Kanduri Maharana, A.I.R 1961 Orissa 203, it was held that section 4 of the Partition Act was enacted to afford the benefits of the law of pre-emption to the other communities in India, so far as the dwelling house is concerned. Thus section 4 is a logical sequel of section 44 of the Transfer of Property Act and is only an extension of the privilege given to the share holders by the said section 44. That suit was Page: 293brought by a co-sharer claiming his right of pre-emption under section 4 of the Act as the joint un-divided property was sold to two persons who were not members of the family. Allowing the appeal of the plaintiff the court held that as there was no partition of the family by metes and bounds and the share of dwelling house belonging to un-divided family had been sold to two strangers who were not members of the family, the plaintiff-appellant, who was a co-sharer was entitled to relief under section 4 of the Partition Act. I respectfully agree with the views expressed by the Orissa High Court and I am of the opinion that in the case in hand even if the sale deed is executed as per decree, the respondent shall not be able to get possession in respect of his share in the un-divided dwelling house. A sale without possession will be meaningless not being in accordance with law. So the decree for specific performance of the contract will not be fruitful and cannot be granted and for this reason also the decree is liable to be set aside.
10. For the reasons stated above, I am of the opinion that the present appeal is liable to be allowed, which I hereby do.
11. In the result the appeal is allowed and the judgment and decree of the learned Subordinate Judge, Tripura at Agartala in Title Suit No. 22 of 1973 are set aside. In the facts and circumstances of the case, parties are to bear their own costs.
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