SRILEKHA GHOSH ROY Vs. PARTHA SARATHI GHOSH
SUPREME COURT OF INDIA
PARTHA SARATHI GHOSH
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D. P. Mohapatra, J. -
(2.)One Sailen Ghosh was the original owner of the suit property. He died on 23rd June, 1942 leaving behind his widow Smt. Mira Ghosh, son Partha Sarathi Ghosh who is respondent herein and two daughters namely Smt. Srilekha Ghosh (Roy) and Smt. Sulekha Ghosh (Mitra) who are the appellants herein. According to the law of succession prevailing then the respondent and his mother became joint owners of the suit property subject to the provision in S. 3(3) of the Hindu Woman's Right to Property Act, 1937. After coming into force of the Hindu Succession Act, 1956 the widow's interest became absolute and thus the respondent and his mother became co-sharers of the suit property each having a moity share. The widow by a registered deed of gift dated 23-8-1968 gifted her share to the appellants. After acquiring 1/2 share in the suit property through their mother the appellants filed a suit Title Suit No. 29/70 against the respondent seeking a decree of partition. The suit was decreed in the preliminary form on 28-2-1972 declaring 8 annas share of property of the defendant and 4 annas of each of the plaintiffs.In the preliminary decree liberty was given to the defendant to pre-empt the share of the plaintiff No. 1 who was married. Subsequently plaintiff No. 2 also got married on 12 June, 1976.
(3.)Before her marriage the plaintiff No. 2 had filed an application under S. 4 of the Partition Act, 1893 (for short 'the Act') Misc. Case No. 21 of 1972 praying for pre-emption of the share of plaintiff No. 1. During pendency of the suit plaintiff No. 2 got married. Thereafter, the defendant filed an application before the trial Court for an order to purchase the share of plaintiff No. 2. The prayer of the defendant was rejected by the trial Court vide order dated 8-7-1978. However, Misc. Case No. 21/72 was disposed of by the trial Court on 12th January, 1980 with a finding that both plaintiff No. 2 and the defendant will have the right to buy the share of plaintiff No. 1. Against the said order the defendant preferred an appeal before the High Court which was decided by the order dated 23-4-1987. The appeal was allowed and the order passed by the trial Court was set aside holding that the defendant alone was entitled to purchase the share of plaintiff No. 1 as after marriage the plaintiff No. 2 lost the status of a member of the undivided family. It is not in dispute that the order was not challenged before any higher forum.
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