Ronojit Kumar Mitra, J. - (1.) The Court One Kunja Behari Bandopadhyay was the owner of 1/4th share and his brother Bipin Behari Bandopadhyay was the owner of 1/4th share in the premises No. 26, Badur Bagan Lane in Calcutta. I shall refer to this property hereafter as "the suit property". Bipin Behari died and was survived by his only son Harendra Nath Bandopadhyay. Kunja Behari and his nephew Harendra Nath entered into an agreement and executed an Indenture of Pre-emption dated December 16, 1927. Clauses 6 and 8 of the registered Indenture provided; "6. It may be mentioned that if either of the 1st or 2nd party considers it essential to sell or mortgage their own allotted portion the 1st party will offer the same proposal for sale or mortgage to the 2nd party and the 2nd party to the 1st party as the case may be, and if any of them agrees to buy it, at the market value the. other party will not be entitled to sell or mortgage to others. "8. All the aforesaid parties or their heirs and legal representatives would thereby remain binding to this."
(2.) Kunja Behari died on June 10, 1944 leaving a registered Will dated August 15, 1937. He was survived by his three sons, Upendra Nath Bandopadhyay, Dhirendra Nath Banopadhyay and Bhupendra Nath Bandopadhyay. In his Will, the testator bequeathed to his three sons, "just enjoyment and possession for life in equal shares in respect of the entire property in my share in the said premises No. 26, Badur Bagan Lane."
(3.) Upendra Nath had three sons and two daughters. Dhirendra Nath four daughters and Bhupendra Nath, one son and one daughter. The three brothers had purchased and were the joint owners of the premises Nos. 25-A and 25-B Badur Bagan Lane in Calcutta. In pursuance of an agreement between Upendra Nath and Bhupendra Nath, they executed and registered a deed of Exchange dated April 18, 1958. Among other provisions it had been included in the Deed, that Upendra Nath had relinquished and conveyed in favour of Bhupendra Nath and Pradhyot, "his undivided one-half part or share of and in the said dwelling house being premises No. 25-A, Badur Bagan Lane", and that Bhupendra Nath in turn, had relinquished and conveyed in favour of Upendra Nath "his undivided on-half part of share of and in the said dwelling house being premises No. 26, Badur Bagan Lane".;