- (1.) THIS first appeal is at the instance of a plaintiff in a suit for partition and pre-emption and is directed against order dated 31 st August, 2000 passed by the learned Civil Judge, Senior Division, Eighth Court, Alipore, District - South 24-Parganas, in Title Suit No. 2 of 1988 thereby passing a preliminary decree declaring one-third share of the plaintiff in Item Nos. 1 and 2 of Schedule and also declaring the right, title and interest of the plaintiff to the extent of half share in Item No. 3 of the Schedule 'a'. The prayer for decree for pre-emption, however, was refused.
(2.) BEING dissatisfied, the plaintiff has come up with the present appeal. The case made out by the plaintiff may be summed up thus: (a) The property mentioned in the schedule of the plaint belonged to one Keshoblal Das, the father of the plaintiff, who died on 23rd January, 1983 leaving his widow and two daughters including the plaintiff as his only heirs and legal representatives. According to the plaintiff, all those three persons became joint owners of the suit property and they had one-third share each. Bibharani Das, the widow of Keshoblal Das, having died during the pendency of the suit, her share, according to the plaintiff, devolved upon her two daughters and thus, they became the owner to the extent of moiety share. The original defendant No. 2 had consequently become the defendant No. 1 after the deletion of the name of the mother of the parties who originally figured as the defendant No. 1. (b) Subsequently, by amendment of the plaint, the plaintiff prayed for pre-emption on the allegation that the mother and sister of the plaintiff had sold their share by a sale-deed dated 16th October, 1987 to the added defendant Nos. 2 and 3 and therefore, the plaintiff was entitled to purchase the said Item of the property by exercising her preferential right conferred under section 22 of the Hindu Succession Act. The further case of the plaintiff was that her sister managed to obtain a Deed of Settlement and Trust dated 30th, October, 1987 in her favour from her mother by practicing undue influence, fraud, coercion and misrepresentation and the same was not binding upon the plaintiff and thus, the defendant No. 1 did not acquire any right, title and interest in respect of one-third share of her mother on the strength of deed dated 30th October, 1987.
(3.) INITIALLY, the mother and the sister of the plaintiff contested the suit by filing the written statement and denied all the material allegations made in the plaint and it was the specific defence of the original defendant Nos. 1 and 2 that the premises No. 86/3b, Suren Sarkar Road, Calcutta - 700 0 10 could not be the subject-matter of pre-emption and as it was not the dwelling house but a fully tenanted house and that the share of Bibharani and Bharati had been transferred on 16th October, 1987. It was further pointed out that so far the premises No. 121, Hem Chandra Naskar Road was concerned, Bibharani had executed the Deed of Settlement in respect of her one-third share in favour of Bharati, the original defendant No. 2 and that after the death of the mother, the trustee, Bharati would become the absolute owner of two-third share in the said premises.;