H. Banerji, J.
1. This appeal is directed against the appellate order passedby the learned Additional District Judge, 14th Court, Alipore whereby he set aside the order of dismissal dated August 8, 1979 passed by the learned Subordinate Judge, 7th Court, Alipore in Title Suit No. 98 of 1974. The suit is one for declaration of the plaintiff's right of pre-emption in respect of the suit property and for specific performance of contract.
2. The plaint case is that one Ramcharit Shaw who owned premises Nos. 7/4, 7/5 and part of 9, Munsigaunge Road, P.S.-- Watgaunge, died in the year 1966 leaving his three sons including the plaintiff who jointly inherited the property in equal share. By a registered deed of partition executed on March 31, 1968 the inherited property was partitioned amongst the three brothers. It was provided in the deed of partition that if any of the parties intended to sell his allotted property he would intimate the others about his intention to sell and the other parties would have the right of pre-emption to purchase the property of the party intending to sell his share. One of the brothers, Harinaryan Shaw died on November 25, 1974 leaving the defendants Nos. 1 to 4 as his heirs and legal representatives but on December 8, 1974 the plaintiff learnt that Harinarayan Shaw had sold his right, title and interest in the suit property which was the allotted share of Harinarayan Shaw to the appellant-defendant No. 5, a stranger, on November 9, 1974 at a consideration of Rs. 8500/- but no intimation was given to the plaintiff about any intention of such sale.
3. The plaintiff's case is that such sale to the defendant No. 5 is not binding on the plaintiff and it could not affect the plaintiff's right of preemption. It is further alleged by the plaintiff that the defendant No. 5 got the Kobala executed by Harinarayan Shaw with full knowledge of preemption clause contained in the partition deed. The plaintiff has been ready and willing to purchase the suit property from the defendant No. 5 and the defendants Nos. 1 to 4 being the heirs and legal representatives of Harinarayan are bound to execute the deed of conveyance in favour of the plaintiff together with the defendant No. 5.
4. Contesting the suit the defendant No. 5 contends that Ramcharit Shaw who was a Hindu, governed by the Mitakshara School of Hindu Law, died leaving his three sons and daughter and several grand-children as his legal representatives and these co-sharers having been left out the partition has been void in law. It is further stated that the plaintiffs and the co-sharers themselves waived the stipulation as of pre-emption and that the plaintiff is estopped from claiming such right.
5. The Lower Appellate Court set aside the order of dismissal by the trial Court, and decreed the suit holding that both the deed of partition and the pre-emption clause contained therein were valid and binding on the parties.
6. The substantial questions of law in this appeal are :-
(1) whether the disputes raised in the present suit are exclusively triable by the West Bengal Land Reforms and Tenancy Tribunal (the 'Tribunal' for short);
(2) whether the learned Additional District Judge erred in law in reversing the decision of the learned Munsif who held the deed of partition to have been a void document on the grounds that all the co-parcenars were not parties to the partition and that the pre-emption clause in the deed is void;
(3) whether the Court below erred in granting the discretionary relief prayed for by the plaintiff.
7. Mr. Bhuiya, appearing for the appellant contends that the present appeal is not maintainable in this Court but should be sent to the Tribunal as the suit property is a Thika Tenancy property in respect of which the Tribunal has the exclusive jurisdiction to adjudicate the disputes and applications relating to matters under any provision of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 1981 (the '1981 Act' for short) which is one of the specified Acts as defined in Section 2(r) of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 (the '1997 Act' for short).
8. This contention is without any substance inasmuch as the present appeal arises out of a suit praying for relief under the provisions of the Specific Relief Act, 1963 and the 1981 Act has no application to the disputes raised in the present suit inasmuch as transfer inter se amongst the heirs of the thika tenants has been saved by the provisions of the 1981 Act.
9. Referring to the Full Bench decision of this Court in the case of Madan Mohan Ghosh and Ors. v. Sishu Bala Atta and Ors. reported in 76 CWN 1058, Mr. Bhuiya submits that under the provisions of Section 5 of the 1981 Act, lands comprised in thika tenancies vested in the State w.e.f. the date of commencement of the 1981 Act and as a result of such vesting each co-sharer of the thika tenancies became a direct tenant under the State and the co-sharership came to an end.
10. Mr. Dutta, appearing for the plaintiff-respondent contends that under the provisions of Section 6(3) of the 1981 Act, the interest of thika tenantsholding directly under the State shall be heritable and shall not be transferable except inter se amongst the heirs and existing co-sharers-interest or to the prospective heirs subject to the provisions of Sub-section 1 of Section 7 of the said Act.
11. Sub-section 3 of Section 6 of the 1981 Act is as follows :-
The interests of thika tenants and other lands holding directly under the State under Sub-Section 1 shall be heritable and shall not be transferable except inter se amongst the heirs and existing co-sharers' interest or to the prospective heirs subject to the provisions of Sub-section 1 of Section 7.
12. Mr. Dutta also contends that in such circumstances termination of co-sharership does not affect the plaintiff's right of pre-emption inasmuch as transfer amongst the heirs even after the co-sharership came to an end does not come within the mischief of Sub-section 3 of Section 6 of the Act. The words 'the heirs and existing co-sharers-interest or to the prospective heirs' appearing in Sub-section 3 make it clear that transfer amongst the heirs as also amongst the existing co-sharers-interest would not come within the mischief of this sub-section as the word 'and' appearing in the expression 'heirs and existing co-sharers interest' is disjunctive. In this view I find support from a decision of this Court in the case of Dhirendranath Nath v. Mohadeb Nath reported in 100 CWN 146.
13. Referring to Sections 3, 4, 6(d), 6(e) and Sections 7, 8 and 9 of the 1997 Act Mr. Bhuian contends that the Tribunal constituted under the 1997 Act shall exercise all the jurisdiction, power and authority exercisable immediately before the commencement of the 1997 Act by any Court including the High Court except, the writ jurisdiction under Articles 226 and 227 of the Constitution exercised by a Division Bench of the High Court, but excluding the Supreme Court for adjudication or trial of disputes and application relating to land reforms and matters connected therewith or incidental thereto and other matters arising out of a provision of a specified Act.
14. In the present case the disputes do not relate to land reforms and matters connected therewith or incidental thereto and other matters relating to any provision of a specified Act. Although the 1981 Act is a specified Act, the enforcibility of the right of pre-emption as contained in the deed of partition amongst the plaintiff /appellant and his co-sharers cannot be said to have arisen out of a dispute or an application relating to land reforms and other matters arising out of any provision of the 1981 Act or of any other specified Act. Therefore, the disputes raised in the present suit do not come within the purview of any of the sections of the 1997 Act referred to by Mr. Bhuiya.
15. In support of his contention that the decree passed by the Court below is a nullity, Mr. Bhuiya refers to the following decisions :-
1. : [1955]1SCR117 (Kiran Singh v. Chaman Paswan),
2. 65 CWN 478 (SSS Oil Mills Ltd. v. Judge, 2nd Industrial Tribunal),
3. : [1993]2SCR454 (Chiranjilal Shrilal Goenka (deceased) through LRS. v. Jasjit Singh and Ors.),
4. : [2000]2SCR1102 (Allahabad Bank v. Canara Bank) ,
5. : AIR2000SC2957 (United Bank of India, Calcutta v. Abhijit Tea Co. Pvt. Ltd.) .
16. In AIR SC 340 (supra) it has been held that a decree passed without jurisdiction is a nullity. Its invalidity can be set up wherever and whenever it is sought to be enforced or relied upon even at the stage of execution and even in collateral proceedings.
17. In 65 CWN 478 (supra) it was held that a matter affecting jurisdiction should not be treated as discretionary and consent would not create jurisdiction. In the decision reported in : [1993]2SCR454 (supra) also it was held that the decree passed by a Court without jurisdiction is a nullity and is non-est.
18. The effect of legislation like the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (the '1993 Act' for short) on a pending suit filed by the appellant for recovery of Rs. 31 crore from the respondent/ Company was considered by the Supreme Court in the decision reported in : AIR2000SC2957 (supra) and it was held by the Apex Court in the said case that the Civil Court was bound to take judicial notice of the change of law and to direct transfer of the Bank's suit to the appropriate tribunal for entertaining the same in accordance with the provisions of the 1993 Act. Similar view of exclusive jurisdiction of the tribunal in regard to adjudication of the applications from the Banks and Financial Institutions for Recovery of Debts due to such Banks and Financial Institutions has been held by the Apex Court in the decision reported in : [2000]2SCR1102 . But none of the five decisions is applicable to the facts of the present case as the provisions of the West Bengal Land Tenancy and Tribunals Act, 1997 which came into force during the pendency of the second appeal now before this Court does not authorise the Tribunal to entertain the suit before this Court, for specific performance of contract to enforce the pre-emption clause in the deed of partition only because the suit property is a thika tenancy holding as explained in paragraphs 12, 13 & 14 above.
19. Mr. Bhuiya has also referred to the decision in the case of BhagawantP. Sulakhe v. Digambar Gopal Sulakhe reported in : AIR1986SC79 where ithas been held by the Supreme Court that the character of any joint familyproperty does not change with the severance of the status of joint familyand the joint family property continues to retain its joint family characterso long as the joint family property is in existence and is not partitionedamongst the co-sharers. Since there is no dispute that the joint familyproperty in the instant suit was partitioned by virtue of the deed of partitiondated March 31, 1968, the above decision has no application to the facts ofthe present case.
20. Referring to the decision in the case of State of Rajasthan v. Harphool Singh (dead) through LRs. reported in : (2000)5SCC652 , Mr. Bhuiya contendsthat the Appeal Court validated the deed of partition on the ground that although the plaintiff had not stated in his plaint or in his evidence that he represented the group, the Appellate Court erred in making out such a case for the plaintiff.
21. The appellate Court held that the three sons of the late Ramcharit Shaw were the heads of all the branches and each branch took per stripe as regards every other branch but the members of each branch would take per capita as regards each other.
22. In this connection Mr. Dutta refers to the decision in the case of Smt. Durgarani Devi v. Mohiuddin and Ors. reported in 86 CLJ 198. In the said case the ancestral property was partitioned by a deed of partition amongst the five branches of co-sharers and all the members of a particular branch were not made parties in the partition but the Karta only thereof was made a party. In such circumstances it was held by the Court that the property was duly partitioned as the Karta of the joint family consisting of himself and the other members of that branch effectively represented all the members of that branch in the partition. As the First Appellate Court duly considered this legal position it cannot be said that the said Court committed any error in describing the mode of succession to the property left by Ramcharit Shaw reversing the finding of the trial Court that the deed of partition was void as all the members of each branch were not made parties to the deed.
23. Mr. Bhuiya also refers to the decision in the case of Kaivelikkal Ambunhi (dead) by Lrs. and Ors. v. H. Ganesh Bhandary reported in : AIR1995SC2491 , where it has been held that the 'rules of interpretation of other documents like a sale deed or a gift deed or a mortgage deed or for that matter, any other instrument by which interest in immovable property is created. While in these documents, if there is any inconsistency between the earlier or the subsequent part or specific clauses inter se contained therein, the earlier part will prevail over the later as against the rule of interpretation applicable to a Will under which the subsequent part, clause or portion prevails over the earlier part on the principle that in the matter of 'Will' the testator can always change his mind and create another interest in place of the bequest already made in the earlier part or on an earlier occasion. Undoubtedly, it is the last Will which prevails'.
24. This decision is not at all applicable to the facts of the present case in Clause 8 of the deed (exbt.1) it is specifically stated that in case any of the parties intended to sell his allotted share he would have to inform the other parties of such sale by a letter by registered post within three months. The party sending such letter would have to sell the property if any of the other parties intended to purchase within three months from the date of the despatch of the letter communicating the intention of sale. If the intending seller did not receive any written reply or did not intimate their intention to purchase the intending seller's share at the price mentioned by the seller, the latter would be at liberty to sell the property to a stranger. From a reading of the entire deed of partition nothing is found to suggest that there is any clause contrary to Clause 8 of the deed of partition whichprovides for the right of pre-emption in the said deed. It is found that the shares were given absolutely to each of the parties to the deed of partition by Clauses 1, 2 & 3 of the said deed and the pre-emption clause appears at Clause 8 of the deed. Only because the pre-emption clause is given in Clause 8 of the deed of partition it cannot be said that the deed is void because pre-emption clause is generally given in such deeds after the allotment of the shares to different parties.
25. Mr. Bhuiya also argues that the defendant No. 5-appellant purchased the suit property without notice of the pre-emption clause in the deed of partition. This argument is, however, without any merit inasmuch as the defendant No. 5-appellant, examined as D.W.-1 in the trial Court, in her cross-examination admits that her lawyer, Paresh Babu did everything regarding the purchase of the suit property and that the deed of partition was shown to her lawyer viz., Paresh Babu. Therefore, it cannot be said that the appellant purchased the suit property without notice of the preemption clause in the deed of partition.
26. Mr. Dutta, appearing for the respondent No. 1 has referred to the decision in the case of Vijay Lakshmi (Smt.) v. B. Himantha Raju Chetty reported in : AIR1996SC2146a in support of his contention that the right of pre-emption arises only on the sale of property and not following a bequest under a Will. This decision is not applicable to the facts of the present case as it is the sale to the appellant and not any bequest by Will which is sought to be pre-empted in the present suit.
27. Mr. Dutta refers to the decision in the case of Rambaran Prosad v. Ram Mohit Hazra reported in : [1967]1SCR293 affirming the decision of the Calcutta High Court in the said case reported in : AIR1961Cal151 . The Apex Court held in the facts and circumstances of the said case that pre-emption clauses in an award of partition was binding on assignees and successors-in-interest of the original contracting parties. In the present case also the plaintiff seeks to establish his right of pre-emption by virtue of the contract amongst the parties to the deed of partition.
28. The contention of Mr. Bhuiya that the Court below erred in granting the discretionary relief prayed by the plaintiff is without any substance. It has been clearly established that the respondent No. 3 purchased the property sought to be pre-empted with notice of such pre-emption clause in the deed of partition. Therefore, it cannot be said that the First Appellate Court committed any error in granting the discretionary relief of the specific performance of contract in respect of the right of pre-emption as contained in the deed of partition.
29. In view of the above I find that the present appeal is not sustainable and the same is dismissed. All interim orders stand vacated.
30. No order as to costs.