- (1.) The petitioners by filing the instant application under Article 227 of the Constitution have challenged the order dated 30th June, 2006 passed by the learned Additional District Judge at Sealdah in Misc. Appeal No. 35 of 2005. By the said order, the learned Appellate Court affirmed order No. 26 dated 20th December, 2005 passed by the learned Civil Judge (Jr. Divn.) at Sealdah in Title Suit No. 247 of 2004.
(2.) The backdrop of the present case may briefly be stated as follows:- The suit premises being No. P-247, C.I.T. Road, Kankurgachi, Kolkata- 700 054 was constructed in the year 1965 by one Binoy Krishna Mitra, since deceased. The fund for construction of such family dwelling house as well as the money required for the purchase of the land from the Calcutta Improvement Trust in the year 1961 was provided for entirely by the said Binoy Krishna Mitra. It was out of his personal savings as well as the profits earned from the family business carried out in the name and style of "India Steam Laundry Private Limited". His three sons used to work there as employees on the basis of monthly remuneration. The said land was purchased in the name of his wife and three sons. The said Binoy Krishna Mitra died on 31st January, 1974 leaving behind his three sons, namely, the petitioner No. 1, the respondent No.1 and Tarun Kumar Mitra, who were in occupation of the various portions of the suit property. The wife of Binoy Krishna Mitra, since deceased, who was a co-owner of the suit property along with her three sons executed a Will on 30th November, 1999 whereby she bequeathed her 1/4th share of the suit property to O.P. No. 2 being the wife of O.P. No.1. The parties thereafter executed a Deed of Partition by way of a family settlement in respect of the suit property. The areas under their respective occupation were demarcated. The said Deed of Partition contains a pre-emption clause restraining any of the co-owners from alienating and/or selling the property to outsiders. The said pre-emption clause is set out as follows:- Clause- 4 " If any party intends to sell, mortgage or otherwise transfer hereafter his/her respective shares in the partitioned property allotted to each party or part of it, the other parties will have right of pre-emption and/or first right to purchase or acquire the same from the party intending to transfer the same and in case none of the other parties intends to exercise the rights of pre-emption or to purchase the said share within one month from the date of service of notice thereof then the party concerned may sell his/her respective allotted share to an outside purchaser. In case more than one party is willing to purchase the said portion then the highest offer amongst the parties hereto will be accepted."
(3.) Defendant No. 1 suffered a severe cerebral attack in the year 1996 which virtually left him partially paralyzed and he lost his power of speech and comprehension. Defendant No. 2, on the basis of an alleged Power of Attorney, said to have been granted in her favour by her husband being the defendant No.1, after he suffered his cerebral attack, started negotiating with outsiders for the sale of her share as well as the share of her husband in the suit property contrary to the pre-emption clause as contained in the Deed of Partition dated 4.5.2001. Defendant No.2 in exercise of the General Power of Attorney granted to her by the petitioner No. 1 obtained purported undated letters of consent for the sale of her share as well as the share of the Defendant No. 1 in the suit property to outsiders. The petitioner No. 1 upon coming to know of the same immediately revoked the Power of Attorney and also the purported letter of 'No Objection' which was being misutilised by the defendant No.2. Such revocation was also duly communicated to defendant No.2.;