REPORTABLE  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6692 OF 2005

Rani Aloka Dudhoria and others …. Appellants

Versus

Goutam Dudhoria and others …. Respondents

WITH

CIVIL APPEAL NOS. 6693-6694, 6697, 6695 AND 6696 OF 2005

J U D G M E N T

S.B. SINHA,  J.

Plaintiffs in a suit for partition are appellants before us.  The dispute

between  the  parties  relates  to  three  items  of  properties  described  in

Schedules ‘A’, ‘B’ and ‘C’ of the plaint.    

Shorn of all unnecessary details the fact of the matter is as under :-

Azimganj Raj Estate belonged to  Raja Bejoy Singh Dudhoria.   He

died in 1933.  He was survived by two sons namely Kumar Chandra Singh

Dudhoria  (KCSD)  and  Kumar  Padam  Singh  Dudhoria  (KPSD)  who

succeeded to  his  estate.   On or  about  16.10.1953 a mutual  partition  was

entered  into  between  KCSD and  KPSD.   Some joint  family  immovable

properties were divided and allotted between them on 50 : 50 basis.  It was

also agreed that in future also on no account whatsoever there shall be any

deviation from this allotment and they would equally share the  profit and

loss arising out of business.   

KPSD died on 5.05.1968 and was survived by his widow Rani Aloka

Dudhoria and seven daughters, appellants herein except Seema Duhoria, the

original plaintiff No. 6.  Respondents are heirs and legal representatives of

KCSD.   

On or about 5.07.1977, a suit for partition was filed by the appellants

against KCDS and his sons, which was numbered as C.S. No. 384 of 1977,

wherein  they  admitted  equal  division  of  certain  immovable  properties

described in Schedule ‘A’ of the plaint and sought equal division thereof

2

between the parties in respect of properties mentioned in Schedule ‘B of the

plaint.   

On or about 20.07.1979 a preliminary decree was passed in the suit

declaring shares in respect of Schedule ‘B’ properties – half :  half between

the plaintiffs and the defendants.

One  Shri  Nirmal  Kumar  Mitra,  Advocate  was  appointed  as

Commissioner  of  Partition   for  the  purpose  of  dividing   the  properties

between the parties and determining their respective  liabilities (taxes etc)

on half  and half  basis.   It  was furthermore directed that  valuation of the

property situated 91, Netaji Subhash Road, Kolkatta be got done by a valuer

and then offered to the parties for sale.  

Several meetings were held by the Commissioner during the period

30.10.1979 and 10.02.1982.  

In the meantime, however, KCSD, died on 16.12.1980 leaving behind

defendants No. 2 to 6 as his heirs and legal representatives.   

3

On or about 10.07.1982 an application was filed by the defendants

praying inter alia for the following directions to the Commissioner :

“ (a)  to divide the properties in Schedule C by holding a lottery

amongst  the  parties  and  thereby  allotting  two  lots

accordingly;

(b) for determination of tax and other liabilities.”

By a consent order dated 1.09.1982 the said application was allowed,

directing:

“By consent of the parties there will be an order in terms  of  prayer  (a)  of  the  petition,  except  the Commissioner  of  Partition  will  sell  out  through lottery  the  premises  at  Jiaganj,  where  the  post office is situated.  The commissioner of Partition will  divide  the  properties  as  mentioned  in Schedule  ‘C’ into  two lots.   It  is  agreed by and between  the  parties  that  the  division  of  the properties into two lots first option will be given to the client of Mr. Anindya Mitra to choose the first  lot.   It  is  recorded  that  such  properties  as mentioned  in  Schedule  ‘C’  have  already  been divided  into  two  lots  by  the  defendants,  which would  be  submitted  to  the  Commissioner  of Partition  for  the  purpose  of  holding  the  lottery. Such lottery will be held by the Commissioner of partition  within  two  months  and  one  half  from date.  Whoever is in possession of the title deed in respect of the properties will submit the same to the Commissioner of partition for the purpose of handing  them over  to  the  party  concerned.   By consent of the parties there will also be an order in

4

terms of prayer (b) of the parties, so far as prayers (d) and (e) of the petition are concerned.  Mr. Deb Kumar  Sinha,  Advocate  of  M/s  Mukherjee  & Biswas and Mr. Ananda Agarwalla,  Advocate  of M/s Rajesh Khaitan & Co. will  sell  the property situated at Serampore along with the tank and hold the sale proceeds of such sale for the purpose of making payment in respect of the liabilities of the joint  properties.   Such  liabilities  will  be ascertained by them and approved at a meeting of the  parties  and  thereafter  disbursement  will  be made,  and  the  balance  amount  will  be  held  by them  till  further  orders  of  this  Court.   Such balance amount is to be deposited in a short terms fixed deposit account with any nationalized bank. Although  the  entire  order  has  been  passed  by consent  of the parties. Mr.Chakraborty submitted that  this  order  be  recorded  to  be  made  without prejudice  to  the  main  contentions  made  by  the parties in the original suit.  It is further recorded that the client of Mr. Chakraborty has not filed any affidavit in reply and under the circumstances he does  not  admit  the  allegations  as  contained  in affidavit in opposition.”

In the proceedings dated 18.10.1982 the Commissioner observed: ‘it

is  unfortunate nothing has yet been done on behalf  of  the plaintiffs  with

regard to supplying of scheme of partition’.    

The  Commissioner  asked  the  parties  to  give  a  clear  and  definite

answer  to  his  query  as  to  how  they  propose  to  make  valuation  of  the

5

properties  for  implementation  of  the  aforesaid  consent  order  dated

1.09.1982.   

An application was made for dismissal of Shri Nirmal Kumar Mitra

as a Commissioner of Partition.  While declining the said prayer, the High

Court by its order dated 5.07.1983 appointed Mr. Ranojit Mitra, Advocate

as Joint Commissioner of Partition to act jointly with him and carry out the

order dated 1.09.1982, the operative portion whereof reads as under:

“…Under  the  circumstances,  at  this  stage  it  was not open to Mr. Anindya Mitra’s client to urge that the  properties  should  be  valued  first  before  the same are put up for lottery by the Commissioner of Partition.   Various  charges  have  been  levied against the Commissioner of Partition and in view of loss  of confidence by the plaintiff  as also the defendants  including  the  defendant  no.  6  in  the Commissioner of Partition, on the basis of which they have prayed for removal of the Commissioner of Partition.  This Court does not wish to remove the Commissioner of Partition at this stage.  Mr. Ranajit Mitra is appointed Joint Commissioner of Partition to act with the Commissioner of Partition jointly and carry out this Court’s order passed on 1.9.82 forthwith.  There is also a similar direction on  Mr.  Deb  Kumar  Sinha  as  also  Mr.  Ananda Agarwalla  to  carry  out  the  earlier  order.   Costs would be costs in the cause.  

The  Commissioner  of  Partition  was  given  76 GMS.   To  be  as  remuneration,  the  Joint Commissioner of Partition would also receive the

6

same remuneration  of  76  Gms.  to  be  shared  by both the parties equally.

It  has  further  been brought  to  the  notice  of  this Court  by Mr.  A.C.  Kar  that  inspite  of  inventory being made and statement  having been given by the  previous  Commissioner  of  Partition  of  the moveable  properties,  these  moveable  properties and missing and to the steps had been taken with regard thereto.

All  parties  including  the  Joint  Commissioner  of Partition to act on signed copy of the minutes of this order on the usual undertaking.”

On  or  about  10.06.1983  defendants/respondents  made  yet  another

application for direction, inter alia, praying that:

“a) Plaintiffs be directed to choose any one of the lots from either annexure ‘J’ or ‘K’ herein.

b) The lot chosen by the plaintiffs be allotted to  them  and  the  other  lot  be  allotted  to  the defendants;

c) Alternatively,  the  lots  prepared  by  the defendants be put to lottery and allotment made in accordance with the result of the lottery”

7

On or about 25.07.1983, a meeting of the Joint Commissioners was

held in which properties which were not in dispute were amicably divided.

It  was  suggested  in  the  meeting  that  defendants  should  submit  their

valuation  in  respect  of  the  suit  properties  of  Rajbari,  Azimganj  and

Dharmshala at Azimganj, (which were said to be impartible estates and were

not included in any of the two lots) and the plaintiffs shall have an option

either to accept the offer and take properties at that valuation or to ask the

defendants to purchase the properties at that valuation.  In respect of third

property being, viz., situated at 91, Netaji Subhash Road, Calcutta it  was

directed that both the plaintiffs and defendants would come with their own

valuation and if valuation thereof is  agreed upon by the parties,  then the

order dated 20.07.1979 shall be carried out.  

In the meeting held on 30.07.1983 plaintiff No.2, Sheela selected lot

‘B’  out  of  the  two  lots  suggested  in  the  defendants’  scheme  ,  and

accordingly lot ‘A’ was allotted to the defendants.  Plaintiffs and defendants

declared that they do not have title deeds of any of the properties nor they

have created any encumbrances in respect  of the properties.   After some

discussions,  the  Joint  Commissioners  of  Partition  inter  alia  issued  the

following directions :

8

“(b) It is  made clear that  on 2nd August,  1983 the  parties  will  come  prepared  with  their valuations in respect of the three properties being premises  No.91,  Netaji  Subhas  Road,  Calcutta, Rajbari at Azimganj and Dharamsala at Azimpunj.

(c) On  2nd  August,  1983  the  Joint Commissioners  of  Partition  will  hold  auction  in respect of the said three properties at the valuation which  the  parties  will  make  which  would  be accepted as the reserve price.

(d) In  the  event  either  the  plaintiffs  or  the defendants do not give their valuation in respect of any  of  the  said  three  properties,  then  the procedures  which  were  decided  during  the  last meeting  held  on  25th  July,  1983  would  be followed.”    

On or  about  16.08.1983 the  defendants  made the third  application

inter alia praying for : (a) decree of partition in terms of allotment made by

the Joint Commissioners in its meting dated 30.07.1983; and (b) direction to

the  Commissioners  for  allotment  of  the  3  remaining  properties  without

valuation.   

On the  said  application,  it  was  recorded that  an  order  had  already

been passed in terms of prayer (a).  An order was also passed in terms of

prayer (b).  It,  however, appears that the prayers (a) and (b) made in the

9

notice of motion and the application were different.  Whereas in the prayer

(b)  of  the notice of  motion,  allotment  of  the  properties  was to  be made,

without valuation, no such prayer was made in the application itself.  In this

connection, we may notice that prayer (b) in the notice of motion was:

“(b) Directions  be  given  to  the  Joint Commissioner  of  Partition  regarding allotment  of  properties  being  premises No.91,  Netaji  Subhas  Road,  Calcutta, Rajbati  at  Azimganj  and  Dharamshala  at Azimganj to offer the property to the parties for being bid without valuation”

In the application, however the prayer (b) reads as under:

“(b) Directions  be  given  to  the  Joint Commissioner  of  Partition  regarding allotment  of  properties  being  premises No.91,  Netaji  Subhas  Road,  Calcutta, Rajbati  at  Azimgange  and Dharamshala  at Azimganj;”

We may also note the order passed by Khastgir, J. in the following

terms:

“The matter  was adjourned from time to time to enable  the  parties  to  finally  sign  the  terms  of settlement.  But the parties could not agree to the clauses suggested by the plaintiffs that in the event the plaintiffs became the successful bidders of the

10

joint  family  properties  the  defendants  should indemnify and keep the plaintiff safe and harmless in respect of any encumbrances or charge affecting such properties which might have been created by Kumar Chandra  Singh  Dudhoria,  since  deceased or his heirs and successors.  Similarly the plaintiffs agreed to  indemnify to  keep the  defendants  safe and harmless in respect of any encumbrances and any charge affecting such properties which might have  been  created  by  Kumar  Padam  Singh Dudhoria or his heirs and successors.  That clause appears to be reasonable in as much as the parties who bid for such properties and purchase the same at such auction held by the Joint  Receivers  may not  suffer due to some encumbrances created by the erstwhile owners.  Under the circumstances for the protection of interest of both the parties such clause should be there in the order itself.

An Order in terms of prayer (a) of the petition had already  been  passed  for  partition  in  terms  of allotment  made  at  the  joint  meeting  of  the Commissioner of Partition held on 30th July, 1983. There will also be an order in terms of prayers (b) and (c) of the petition.”

We will advert to this question a little later.

It,  however,  appears  that  during  the  period  11.06.1984  and

7.07.1991, i.e., for a period of about seven years, no demarcation in respect

of lot ‘A’ and lot ‘B’ properties had taken place.  No step was taken by any

of the parties to purchase the said properties, one way or the other.  The

11

question cropped up again before the Commissioner, in a meeting held on

7.07.1991,  wherein  on  behalf  of  the  appellants,  Amita,  Appellant  No.  4

participated.

It was agreed to by and between the parties that as in terms of the

order of the court, the three properties were to be auctioned between them,

valuation of those three properties by any valuer was not necessary.  Such a

consent appears to have been given to do away with the expenditures which

were required to be incurred therefor.

Admittedly the appellants remained absent in some meetings held by

the  Joint  Commissioners  of  Partition.   By a  letter  dated  27.08.1991,  the

Joint Commissioners expressed their unhappiness thereover stating that as

they were professional people, the parties should cooperate. It was directed:

“By  notice  dated  21st August,  1991  we  fixed  a meeting  today  at  the  residence  of  Mr.  Nirmal Mitra,  one  of  the  Joint  Commissioners  for  the purpose of implementation of the decisions taken by us during the meeting held on 7th July, 1991. This  meeting  was  extremely  important.   Mr. Goutam Dudhoria,  one  of  the party attended the residence of Mr. Nirmal Mitra in time and waited till 7.30 P.M.  However, no one attended on behalf of the Plaintiffs and the net result is that we could not hold the said meeting.  We do not appreciate this kind of conduct of any of the parties.  Parties

12

should realize that we are professional people and we cannot  afford  our  time  to  be  wasted  in  this manner.

Be that as it  may, please take notice that on 11th September,  1991  we  shall  hold  the  scheduled meeting at 4.30 p.m. at the Bar Library Club, first floor, High Court, Calcutta.  You are requested to attend the said meeting along with your respective clients.  During the said meeting we will take the necessary decisions relating to the items recorded in the minutes of the meeting dated 7th July, 1991. Should any party fail to attend the said meeting on the  scheduled  day  then  the  decision  would  be taken in his/her absence.”

Yet again for a period of about 2-3 years, steps were taken only for

demarcation of other properties in Lot ‘A’ and Lot ‘B’.  The question as

regards implementation of the order dated 11.06.1984 and partition of the

three properties without valuation in the aforementioned situation cropped

up once again.   

Defendants  moved  the  fourth  application  on  or  about  22.01.1997

stating  that  one of  the Joint  Commissioners,  viz.,  Mr. Ranojit  Mitra  was

elevated  as  a Judge of  the  Calcutta  High Court  and in view of the  non-

cooperation  of  the  appellants  herein  at  the  meetings  before  the

Commissioner, the question of division and disposal of the three properties

13

was still hanging; and the properties being in a dilapidated condition require

repairs and furthermore tax liabilities were mounting.   

Directions were sought for on the following terms:

“a) Mr.  Nirmal  Kumar  Mitra,  Bar  at  law  be directed to act as the Sole Commissioner of Partition with consequential directions;

b) Minutes of the meeting dated December, 19, 1993 and February 27, 1994 along with the plan  annexed  thereto  being  annexure  ‘O’, ‘G’ and ‘H’ respectively to this petition be treated as part  of the order dated June 11, 1984  and  be  drawn  up  and  completed accordingly.

c) The  commissioner  of  Partition  be  directed to:

(i) Sell the three properties referred to in paragraph 1 of this petition in terms of the order dated June 11, 1984 after giving  peremptory  direction  to  all concerned in this regard;

(ii) In  the  event  of  either  of  the  parties failing to attend the date to be fixed by the commissioner  of  partition  for auction,  liberty  be  given  to  the commissioner  of  partition  to  permit the  parties  present  to  purchase  the said properties at their own valuation.

(iii) Ascertain  and  apportion  the  liability  of  the  estate  and device ways and means to liquidate the same.

(iv) To complete allotment to the successful bidders within a stipulated time as may be fixed by this Hon’ble Court.”

14

Sujit Sinha, J. on the said application by an order dated 10.09.1997

directed that Shri Nirmal Kumar Mitra to remain the sole Commissioner and

furthermore directed Shri  A.P. Aggarwal,  who appeared on behalf  of  the

appellants, to file an affidavit to the said application, the next date wherefor

was fixed on 10.03.1997.   

By  an  order  dated  10.03.1997,  the  learned  Judge  noted  that  the

Commissioner had made partition, allotment and demarcation of the other

properties in accordance with the decree and directed him to carry out the

order  dated  11.06.1984  in  respect  of  allotment  of  the  remaining  three

properties within four weeks, wherefor seven days’ notice was required to

be served on the parties  in order to enable  them to appear personally or

through their  advocate and to proceed even ex-parte if any of the parties

chose not to appear.

Notice,  pursuant  to  the  said  order,  was  served  upon  the  learned

advocates for the parties.   By way of abundant caution, however,  notices

were directed to be served on three of the plaintiffs, viz., Plaintiff Nos. 1, 3

15

and 6.  According to the appellants, plaintiff - appellant No. 1 herein was

unwell and away to Delhi.  Plaintiff No. 3 had married long back and  had

been staying in USA for more than 15 years and the plaintiff No. 6 Seema

was colluding with the defendants.  No notice admittedly had been served

upon Amita, plaintiff No. 4.  It, however, appears that Shri A.P. Aggarwal

appeared and sought for  adjournment  inter  alia on the premise that  Rani

Aloka  Dudhoria,  appellant  No.  1  herein  was  ailing.   No  adjournment,

however,  was  granted.   Liberty  was  given  to  the  parties  to  mention  the

matter  before  the  court  for  extension  of  time.   It  is  stated  that  in  the

meantime the parties had changed their addresses.  Amita had shifted her

residence  from  48,  Gariahat  Road,  Calcutta  to  48/2B,  Gariahat  Road,

Calcutta.  

A prayer for extension of time was made only by the counsel for the

respondents.  The time was extended by three weeks, i.e., upto 7.05.1997 .

The Commissioner held a meeting on 8.05.1997.  According to the

appellants, no notice was served on them.  A notice, however, was sent on

28.04.1997 to M/s. Rajesh Khaitan & Co. intimating him about holding of

the  meeting  on  8.05.1997.   According  to  the  appellants,  Mr.  Anand

16

Aggarwal  did  not  inform them despite  having  knowledge  as  regards  the

changed address and contact numbers.  In the said meeting, however, Seema

participated.  She appeared with advocate Anand Aggarwal.   

Appellants contend that she had no authority therefor.   

In the said meeting, the learned Commissioner noticed the orders of

the High Court dated 20.07.1979 and 11.06.1984 so far as the same related

to auction of the property on a half and half share basis  to be held by the

parties and the same was to be conducted between the two groups stating:

“(a) Bid offer shall be made with regard to 50% interest  and  on  acceptance  of  the  bid,  the successful  bidder  will  pay  10%  of  the consideration  immediately  by  cheque  and the balance within 45 days.

(b) In  default  of  balance  consideration,  the initial 10% shall stand forfeited and the bid shall  stand  annulled,  whereupon  the  other party shall have the option to purchase the property at the same price and on the same terms and conditions.

(c) The  successful  bidder  will  have  the conveyance  made  in  respect  of  the  50% interest of the other party within 3 months of  the  date  of  payment  of  the  full consideration and the other party shall take necessary steps to comply therewith.

(d) Simultaneously  with  the  payment  of  the entire  consideration  the  other  party  shall hand  over  possession  along  with  all

17

documents  relating  to  title  or  tenancies  to the successful bidder.”

The bid in respect of the aforesaid three properties was to take place

on 9.05.1997.

Seema admittedly did  not  participate  in  the bid.   Defendant  No. 2

alone made a bid of Rs. 7 lakh for the Rajbari property and a bid for Rs.

75,000/- for Dharamshala property.  Defendant Nos. 2 and 3 made a joint

bid of Rs. 24 lakhs for the properties situate at 91, Netaji Subhash Road.

 It is not in dispute that the Rajbari property was situate on 4 bighas of

land.  It contained more than 100 rooms.  The Dharamshala property is a

double storeyed building situate on about one bigha of land.  The Netaji

Subhash Road property is situated on 12 ½ cottahs of land.  In the said bid

proceedings, it was, however, shown that the plaintiff No. 1 was allegedly

present and cheques had been handed over to her, as would appear from:

“ RAJBARI AT AZIMGANJ:

Plaintiffs –x Defendants No. 2 and 3 jointly  

Rs.7,00,000/-

18

A  cheque  for  Rs.35,000/-  (Rupees  thirty  five thousand) only being 5% of earnest money bearing No.  629603  dated  09.05.97  drawn  on  Federal Bank  Limited,  Bhowanipur,  Calcutta  is  handed over by Sidharth Dudhoria, the defendant No.3 to Rani Akola Dudhoria, the Plaintiff No.1

A  cheque  for  Rs.35,000/-  (Rupees  thirty  five thousand) only being 5% of earnest money bearing No.  378915  dated  09.05.97  drawn  on  Federal Bank  Limited,  Bhowanipur,  Calcutta,  is  handed over  by  Shri  Goutam  Dudhoria,  the  defendant No.2 to Rani Aloka Dudhoria the Plaintiff No.1

DHARAMSHALA AT AZIMGANJ:

Plaintiffs –x Defendant No. 2 Rs.75,000/-

A  cheque  for  Rs.75,000/-  (Rupees  Seventy  five thousand)  only being  10% of  the  earnest  money bearing  No.  378917  dated  09.05.97  drawn  on Federal  Bank  Limited,  Bhowanipur,  Calcutta  is handed  over  by Mr.  G.  Dudhoria,  the  defendant No.2 to Rani Akola Dudhoria, the Plaintiff No.1

     91, NETAJI SUBHAS ROAD, CALCUTTA

Plaintiffs –x Defendant No. 2 Rs.24,00,000/-

A  cheque  for  Rs.2,40,000/-  (Rupees  Two  lakhs forty  thousand)  only  being  the  agreed  earnest money  bearing  No.  378916  dated  09.05.1997 drawn  on  Federal  Bank  Ltd.,  Bhowanipur, Calcutta  is  handed  over  by  Shri  Dudhoria  the defendant  No.2  to  Rani  Akola  Dudhoria,  the Plaintiff No.1”

19

The appellants contend that the plaintiff No. 1 was not and could not

have been present on the said day in the High Court as she was at Delhi.

There is no denial to such assertion.

The  Defendants’  advocate  served  a  notice  asking  the  plaintiffs  to

discharge  their  obligations  under  the  conditions  of  sale  finalised  on

8.05.1997 including handing over of document relating to title, tenancies,

attornment, etc.   

According  to  the  plaintiffs,  this  letter  had  not  been  sent  to  or

forwarded  to  the  plaintiffs.   Stipulated  period  of  45  days  expired  on

20.06.1997.  Allegedly, despite the same, payments had not been made by

the defendants in respect of any of the properties.  A meeting was held only

on 30.06.1997 whence it  was stated on behalf of the appellants that they

were  not  in  possession  of  any  documents  in  respect  of  properties  at

Azimganj although the plaintiffs had agreed to hand over all the documents

available with them.   

On behalf of the defendants/respondents, a letter dated nil addressed

to Mr. Anand Agarwal was issued, stating:

20

“In this  regard we also  refer you to  the  meeting held at our office on 30th June which was attended by  you  with  your  client.   As  it  has  been represented by your clients through you that they are not in possession of any paper pertaining to the Rajbati and Dharamshala we under instruction of our  clients  forward  you  herewith  three  several cheques  aggregating  to  Rs.6,97,500/-  being  the balance  payment  in  respect  of  the  said  two properties  for  payment  to  your  clients.   It  may further be noted as agreed that you shall  at your earliest  sent  to  us  a  list  of  documents  in  your clients  possession  relating  to  91,  Netaji  Subhas Road, Calcutta and would also confirm whether all your clients are available to sign papers relating to transfer of the above properties and/or receipt of such  confirmation  our  clients  would  pay  the balance  consideration  of  the  said  third  property alternatively  an  application  would  be  made  for final disposal  of the suit  and upon such order as the Hon’ble Court may direct necessary steps will be taken.

Along with the said letter, the following cheques were enclosed, all of

which were drawn in favour of Mr. Anand Agarwal:

“1. Cheque No. 629605 dt. 1.7.97 Drawn by Siddharth Dudhoria on  the Federal Bank Ltd.  of Bhowanipore for Rs.3,15,000/-

2. Ch. No. 382712 dt. 1.7.97 drawn by Goutam Dudhoria on the Federal Bank Ltd., Bhowanipore for Rs.67,500/-

3. Cheque No. 382713 dt. 1.7.97 drawn by  

21

Goutam Dudhoria on the Federal Bank Ltd.,  Bhowanipore for Rs. 3,15,000/-“

It,  however,  stands  admitted  that  the  said  cheques  have  not  been

encashed.  The said payments furthermore were only in relation to two of

the properties.

According  to  the  plaintiffs,  the  appellant  Nos.  1  and  4  allegedly

returned to Calcutta only on 17.07.1997.

It is, at this juncture, Amita Dudhoria wrote a letter dated 24.07.1997

to M/s. Rajesh Khaitan & Co. asking for copies of all the orders and minutes

of the meetings which had taken place in their absence alleging that that Mr.

Agarwal had all  along been aware that Sheela Jain and herself  had been

looking after the matter and that they had been away from Calcutta.

Rani Aloka Dudhoria is said to have gone back to Delhi with Seema

for treatment  again on  28.07.1997.   Allegedly,  neither  Seema nor  Amita

Dudhoria disclosed about the development of the case to her.  However, in

the meantime, xerox copies of the documents relating to 91 Netaji Subhash

22

Road were forwarded to the defendants by the appellants in terms of a letter

dated 23.07.1997.   

Thereafter  Amita  alone  made  an  application  on  22.09.1997  for

cancellation of the sale of the three properties, stating:

“(1) In 1996-97, Rani Aloka, P1, and Seema, P6 had  shifted  from  the  original  house  to  reside together  at  a  new place  in  Calcutta;  she  herselt (Amita) had shifted to a separate new place.

(2) Amita had left Calcutta to stay at Delhi for a year  (1996-97)  for  medical  treatment  of  her mother, Rani Aloka, P1.”

It was prayed:

“b) The  purported  sale  of  three  properties namely  premises  no.  91,  N.S.  Road, Calcutta 700 001, Rajbati in Azimganj and Dharamsala at Azimganj on May 9, 1997 by the  Commissioner  of  Partition  Mr.  Nirmal Kumar Mitra, Barrister at Law, be set aside and/or cancelled;

d) Order dated March 10, 1997 passed by the Hon’ble  Justice  Sujit  Kumar  Sinha  be recalled and/or set aside.

e) Commissioner of  Partition and/or  Receiver be  directed  to  make fresh  inventory of  all movables  and/or  immovable  lying  inside Rajbati, Azimganj.”

23

On the next day, i.e., on 23.09.1997, the respondents made the fifth

application for confirming the sale of all the three properties in their favour.

Appellant No. 4 took a change of her attorney from M/s. Rajesh Khaitan &

Co. to M/s. Dipak Dey & Associates.

A.N.  Ray,  J.  (as  the  learned  Chief  Justice  then  was)  gave  an

opportunity  to the appellant to bid for the three properties again but they

failed to  do  so.   It  is  alleged that  for  the  first  time Mr. Anand Agarwal

informed Rani Aloka Duhoria about the application filed by Amita, Goutam

and  Sidharth.   Rani  Aloka  instructed  him to  oppose  the  application  for

confirmation  of  sale  of  the  defendants  and  to  support  the  application  of

Amita.

On 2.12.1997, Amita agreed to pay Rs. 20 lakhs in response to the

defendants’ offer and sought for six months’ time to deposit Rs. 10 lakhs

towards  50% of  the amount  but  the High  Court  rejected  the  said  prayer

stating that it was made with a view to delay the matter.  The application for

confirmation of sale was, therefore, allowed, stating:

“It was urged that notice of the sale was not given to all  the parties.   The advocates-on-record were all  along  with  notice  of  what  was  happening before the Learned Commissioner of Partition.  If

24

some party did not appear it was only because he or she did not choose to appear.

If the history of this litigation is reviewed it will be seen that the plaintiffs have not been active at all in the matter of the present litigation.  All steps were  taken  by  Mr.  Chakraborty’s  Clients  all along.”

The  other  plaintiffs  also  changed  their  lawyers  replacing  Anand

Agarwal with M/s Victor Moses & Co.

Two  Letters  Patent  Appeals,  one  by  Amita  and  another  by  other

plaintiffs except Seema, were filed, which were marked as APOT No. 742

of 1997 and APOT No. 71 of 1998.   

The Division Bench by an order dated 8.01.1999, with the consent of

the parties, directed resale of the properties, stating:

“It  is  recorded  that  all  allegations  against  Mr. Anand Agarwal, Advocate of M/s Rajesh Khaitan & Co., Advocates, are withdrawn.   Mr. Agarwal agrees  to  continue  to  represent  Miss  Sheema Dudhoria.

Let this matter appear in the list marked “TO BE MENTIONED” for filing of Terms of Settlement.

25

Miss Sheema Dudhoria is directed to be personally present in Court on that date.”

Terms  of  settlement  between  the  parties  were  considered.   Some

changes were proposed.  The agreed terms were signed by the parties on

28.01.1999.  Amita offered a sum of Rs. 21 lakhs.  An objection was raised

on  behalf  of  Goutam and  Sidharth  that  Amita  should  not  be  given  the

opportunity to bid separately.  In view of the said controversy, the Division

Bench released the matter by an order dated 29.01.1999.

We may, however, notice that whereas the Division Bench in its order

dated 8.01.1999 recorded that  all  allegations against  Mr. Anand Agarwal

were  withdrawn,  a  submission  has  been  made  before  us  that  as  the

settlement  could  not  have  been  given  effect  to,  the  same  also  stood

withdrawn.   

A special  leave  petition  was  preferred  by Amita  as  also  the  other

plaintiffs except Seema.   

By an order dated 13.03.2003, this Court refused to interfere in the

matters on the premise that the appeal had emanated from an interim order.

26

Contentions of the parties were however left open to be urged before the

High Court.   

By  reason  of  an  order  dated  10.02.2004,  the  Division  Bench

dismissed the Letter Patents Appeals being APOT Nos. 742 of 1997 and 71

of 1998.

On or about 12.03.2004, cheques representing the amount of balance

consideration were forwarded by Goutam and Sidharth, which are said to

have not been encashed.  

A  review  application  was  filed  by  the  parties  which  has  been

dismissed by reason of the impugned judgment dated 20.08.2004.

Mr.  Manoj  Goel,  learned  counsel  appearing  on  behalf  of  the

appellants, would submit:

I. The impugned judgment cannot be sustained as the auctioneers had in

collusion committed fraud on the plaintiffs and/ or the court, the particulars

whereof are :-

27

(i) The application dated 22.01.1997 was moved by the defendant No.

2 after a complete lull of 13 years when the plaintiff No. 1 was

unwell  and  the  plaintiff  No.  4  was  to  take  her  to  Delhi  for

treatment.  Thus, all proceedings took place behind their back.   

(ii) At no point of time, the necessity of valuing the property having

been  given  up,  only  because  a  chartered  valuer  was  not  to  be

appointed, the same would not mean that the property was not to

be valued at all.  Plaintiffs tainted before the Commissioner as and

when they noticed therefor.

(iii) When  one  of  the  Joint  Commissioners  was  elevated  as  a  High

Court  Judge and when a prayer had been made earlier  that  Mr.

N.K. Mitra be replaced by another Commissioner, the prayer for

his appointment as a sole Commissioner was an act of fraud on

court on the part of the respondents.   

(iv) As the defendants  knew that there was a provision for reserved

price  to  be  fixed  as  per  the  agreement  between  the  parties,  as

would  appear  from  the  order  dated  11.06.1984,  the  prayer

purported to have been made to value the said properties on their

individual basis was illegal.  Consequently, the sale without fixing

28

a reserved price was also illegal.  In any event, the sale should not

have been confirmed as the price was low and one of the plaintiffs

had  outbid  the  defendants’  offer  but  stringent  conditions  were

imposed, viz., minimum payment despite the fact that the auction

purchaser themselves did not comply with the said conditions.

(v) A peremptory order dated 10.03.1997 was taken by the defendants

when except plaintiff No. 6, no other plaintiff was available.   

(vi) The Commissioner could not have devised his own procedure as

regards service of notice despite the order dated 10.03.1997 that

notice should be served to all the parties.  There was no reason to

serve notices only on plaintiff Nos. 1, 3, and 6 although it was the

plaintiff No. 4 who had been representing them.  Notice was not

and could not have been served upon the plaintiff Nos. 1 and 4 as

at that point of time they were not in Calcutta.  The notice dated

5.04.1997 asking the parties  to appear on 10.04.1997 was for a

period of less than seven days’ despite the clear directions by the

High  Court  as  contained  in  its  order  dated  10.03.1997.   The

minutes of the meeting were again served on the Advocate and not

on the parties in violation of the court’s orders dated 11.06.1984

and 10.03.1997.

29

(vii) Four  weeks’  time  although  had  been  prayed  by  Mr.  Anand

Agarwal on the ground of illness of plaintiff No. 1, adjournment

was given for  a lesser  period so  as  to  enable  the defendants  to

complete the entire deal within the said period.   

(viii) Although the Commissioner advised the parties to seek extension

of time as the four weeks’ time had expired, an application was

made in  respect  thereof  by the  respondents  without  making the

appellants aware thereof.

(ix) Although the time granted by the court expired on 7.05.1997, the

purported sales were carried on 8.05.1997 and 9.05.1997 when the

Commissioner had become functus officio.

(x) Mr. Anand Agarwal had never informed the plaintiffs  about the

meetings  dated  8.05.1997  and  9.05.1997  and  on  the  said  dates

only defendant Nos. 2 and 3, their counsel and plaintiff No. 6 with

Mr. Anand Agarwal were present.  It was for the first time that the

plaintiff No. 6 Seema ever participated in the court proceedings or

proceedings before the Commissioner.

(xi) Despite the fact that the Plaintiff No. 6 was a minor when the suit

was instituted, which fact was known to Mr. Anand Agarawal, she

not  having  attained  majority  executed  a  power  of  attorney  in

30

favour of the plaintiff No. 1.  She could not have represented the

plaintiffs.   No  such  proof  of  authority  was  even  asked  by  the

defendants, nor any proof therefor was filed.  This appears to be

strange as the Commissioner who had been taking the proceedings

since  1979  knew  that  Sheela  Jain  and  Amita  alone  were

representing the plaintiffs.

(xii) Although the property situated at Shrirampore was to be sold for

discharging joint  fiscal  liabilities  of  both the parties,  one of the

conditions which was put was that the bidder shall pay and bear

the municipal and other land taxes.   

(xiii) Although 10% of the consideration amount was to be paid through

a cheque drawn in favour of the plaintiff No. 1, representing the

other plaintiffs, a cheque was drawn in favour of plaintiff No. 6

who put the same in the joint account with the plaintiff No. 1 and

also withdrew the amount.

(xiv) Although in the terms of  sale it  was stipulated  that  the balance

consideration  would be paid  within  45 days,  but  the  amount  in

respect of Rajbari and Dharamshala properties situate at Azimganj

was tendered only on 3.07.1997 i.e. much after the said stipulated

period  in  violation of  Clause (c)(ii)  as  also Clause (g)  in  terms

31

whereof no extension of time was permissible.  No payment has

been made till date in respect of the property situated at 91, Netaji

Subhash Road property which was offered only in 2004.

(xv) Although no documents of title or other papers were available, in

respect of the properties in suit as would appear from the minutes

of  the  meeting  of  the  Joint  Commissioner  dated  30.07.1983,

Clause (f) of the terms could not have been made a condition to be

fulfilled  simultaneously  with  the  payment  of  the  entire  balance

consideration.

(xvi) For  holding  of  meeting  dated  9.05.1998,  no  notice  /

communication was sent to the parties except the defendants and

Seema.   No  inter-branch  meeting  took  place  which  was  in

violation  of  the  terms of  the  preliminary decree.   Although the

plaintiff No. 1 was not present in the meeting dated 9.05.1997, it

was shown that the cheques towards 10% payment in respect of

three properties were handed over to her which clearly points out

the  fraudulent  action  on  the  part  of  the  defendants  and  their

collusion with plaintiff No. 6 and even the Commissioner.

(xvii) Although the defendants were aware that no document of title was

available, in their communication dated 20.06.1997, they sought to

32

enlarge the time for payment by writing a letter  just  three days

prior  to  the  expiry  of  45  days  period  and  put  a  condition  of

simultaneously for handing over of documents.

(xviii)No explanation has been offered by Mr. Anand Agarwal as also

the plaintiff No. 6 as to why they had not objected to such tender

of payment which was contrary to the stipulated terms of sale held

on  8.05.1997  which  clearly  demonstrates  that  they  had  been

colluding with the defendants.   

(xix) Cheques  drawn  in  the  name  of  Advocate  on  Record  was  no

payment in the eye of law particularly when the initial cheque in

respect of the deposit of 10% from the bid amount was drawn in

the name of the plaintiff  No. 1.   There is  nothing on record  to

show as to at whose instance the cheques were drawn in the name

of advocate and he had agreed to accept the same.

(xx) Yet  again,  so far  as  the  property situated at  91,  Netaji  Subhash

Road is concerned, no simultaneous payment was made which was

in  violation  of  the  terms  of  conditions  of  sale.   As  the  said

property  was  a  tenanted  one,  the  question  of  handing  over  of

actual physical possession thereof did not and could not arise.

33

II. The  properties  being  impartible  in  nature,  the  sale  of  the  said

properties could have taken place only in terms of the provisions

of Order XXVI, Rule 18 of the Code of Civil Procedure as also

those of the Partition Act.

III. The High Court in its order did not advert to the question as to

whether Seema had any authority or not to represent the appellant

wrongly  but  proceeded  to  hold  that  the  plaintiffs,  being  not

diligent, were not entitled to any relief.

IV. The High Court committed a serious illegality insofar as it failed

to deal with the contentions raised by the appellants on fraud and

collusion of the parties.   

V. The  Commissioner  had  no  authority  to  put  the  properties  on

auction on 8.05.1997 which was beyond the period of three weeks

granted by the court.

VI. No bid having taken place either inter-parties or intra-parties and

as the defendant Nos. 2 and 3 had bid only individually the same

could not have been confirmed.  

VII. As  the  properties  were  put  on  auction,  the  valuation  of  the

property was not relevant.

34

Mr.  P.S.  Narasimha,  learned  counsel  appearing  on  behalf  of  the

appellants in Civil Appeal Nos. 6693-94 of 2004 would contend:

(i) The  High  Court  committed  a  serious  error  to  consider  that  the

parties  were  not  diligent  throughout  on  an  assumption  that  the

matter had been going on from 1979 although diligence on their

part for a period of four months was only relevant.   

(ii) As  the  plaintiff  No.  6  was  at  all  material  time  and  still  is

supporting the defendants, the High Court should have considered

the fact that the plaintiffs had not been present when the auction

took place.

(iii) Serious  allegations  of  fraud  and  collusion  made  against  the

advocate  were  withdrawn  in  view of  the  fact  that  a  settlement

between the parties had been arrived at and as the settlement could

not be given effect to, withdrawal of allegations against him also

stood withdrawn.   

(iv) The direction on the part of the learned Single Judge to deposit the

entire amount was unfair as even the defendants did not deposit

the entire amount by way of fulfillment of the condition of sale

which although raised in the review application but had not been

dealt with.  As in terms of clause c(iii) of the condition of sale, the

35

amount was to be forfeited, the sale was confirmed but no payment

had been made within a period of six months.   

(v) In terms of the provisions of the Partition Act,  valuation of the

property was mandatory in nature.  It was to be made both before

and after the preliminary decree.

(vi) Although the question as to whether a fraud has been practised or

not  is a matter of proof,  the High Court committed an illegality

insofar as it refused to enquire into the matter.

Mr.  Sunil  Gupta  and  Mr.  Altaf  Ahmed,  learned  senior  counsel

appearing  on  behalf  of  the  respondent  Nos.  1  and 2,  on the other  hand,

would contend:

(i) The  appellants  did  not  file  any  application  before  the  learned

Single Judge to challenge the sale of the plaintiffs’ share in the

said  properties  in  favour  of  the  defendants.   They  merely

supported the application of the plaintiff No. 4 who alone had filed

an application before the learned Single Judge to assail  the said

sale.

36

(ii) When the plaintiff No. 2 Sheela was in Calcutta, she represented

the  plaintiffs.   After  her  marriage,  plaintiff  No.  4  Amita

represented the plaintiffs and when Amita also was not available,

plaintiff  No. 6 Seema represented the plaintiffs because none of

the other plaintiffs were in Calcutta.  She herself stated before the

Commission on 09.05.1997 that she had been authorised to attend

the  meeting  and  to  receive  cheques  for  and  on  behalf  of  the

plaintiffs.  Moreover, Seema, Amita and Rani Aloka were residing

together when Rani Aloka was in Calcutta during 1996-97.  This

fact clearly shows a perfect harmony between Rani Aloka, Seema

and Amita and, thus, the allegation that Seema did not have any

authority to represent them is manifestly an afterthought.

(iii) As regards the allegation of lack of notice of the meetings before

the Commissioner, the same is also false as the plaintiffs or their

advocate had notice of all the meetings and even the terms of the

bidding  were  settled  in  presence  of  Seema  and  the  plaintiffs’

advocate.  Under Chapter I, Rules 6 and 13 of the Original Side

Rules of Calcutta High Court, an advocate of a party is entitled to

represent his/ her client in the suit and in all matters in connection

therewith.

37

(iv) No allegation of collusion on the part of their advocate was made

by the plaintiffs before the learned Single Judge.  Furthermore, all

allegations  made  against  their  advocate  were  withdrawn  by the

plaintiffs before the Division Bench.

(v) As regards alleged collusion between Seema and the defendants,

no evidence in support thereof has been furnished.  

(vi) What  happened in  the  meetings  dated  8.05.1997  and 9.05.1997

was merely the implementation of what had earlier been agreed to

between the parties in the meetings dated 25.07.1983, 30.07.1983

and 7.07.1991.  

(vii) As regards valuation of the property before bidding the plaintiffs

had agreed that valuation of the three properties was not necessary

which is evident from the orders dated 5.07.1983 and 11.06.1984

as  also  the  minutes  of  the  meetings  dated  25.07.1983  and

30.07.1983.  Moreover, there had never even been a suggestion to

the court by any side that since the property is indivisible for the

reasons stated in Section 2 of the Partition Act, there needs to be a

public sale.  The sale took place only as an equitable measure for

the  purposes  of  carrying  out  the  division  ordered  in  the

preliminary decree.

38

(viii) The plaintiffs  have never cooperated with the defendants  or the

Commissioner in implementing the orders of the court and failed

and/  or  neglected  to  attend  several  meetings  called  by  the

Commissioner.   

(ix) Under Section 12 of the Limitation Act, 1963, for the purpose of

computing the limitation period, the day on which the order was

passed  has  to  be  excluded.   As  the  last  extension  of  time was

granted by an order dated 17.04.1997 for  three weeks,  it  would

expire on 8.05.1997 and not on 7.05.1997.  Furthermore, the terms

and conditions of the bidding process were finalized on 8.05.1997

and on 9.05.1997, only the same were given effect to.   

The relationship between the parties is not in dispute.  The extent of

the joint family properties is also not in dispute.  We are concerned with

only 3 impartiable  properties  as  described in  Schedule  ‘B’ of  the  plaint,

namely  –  premises  No.  91,  Netaji  Subhas  Road,  Calcutta,  Rajbari  at

Azimganj and Dharamshala at Azimganj.  Indisputably the said properties

were put to auction, a bidding was held by the Commissioner of Partition on

9th May, 1997.  So far as the property - Rajbati at Azimganj is concerned,

defendant Nos. 2 and 3 had purchased it jointly for a sum of Rs.7,00,000/-

39

whereas the property commonly known as Dharamshala at Azimganj was

purchased by defendant No.2 alone for a sum of Rs.75,000/-.  Similarly the

property at Netaji Subhas Road, Calcutta was purchased by defendant No.2

alone for a sum of Rs.24,00,000/-  

The core question which arises for our consideration is as to whether

the said purported auction was held de’hors the provisions of the Partition

Act, 1893 or in accordance therewith.  Indisputably the property situated at

Netaji  Subhas  Road,  Calcutta,  is  a  double  storeyed  building  on  a  land

measuring  12 ½ cottah.  It is situated at a prime location.  

Rajbari at Azimganj has been constructed on a land measuring more

than 4 bighas.  The building consists of more than 100 rooms.  Indisputably

again  a  large  number  of  joint  movable  properties  situate  therein.   The

property known as Dharamshala  at  Azimganj  also has  a double storeyed

building situate on 1 bigha of land approximately.

Validity of the sale of the said properties, as indicated hereinbefore, is

in question inter alia on the premise that :-

40

(i) The  provisions  of  the  Partition  Act  have  not  been

complied with.  

(ii) Seven out of eight plaintiffs had no notice as regards

the date fixed for auction.

(iii) Defendants/respondents  in  any  event  having  not

deposited  the  amount  required  within  the  time

stipulated,  the  auction  sale  was  required  to  be  set

aside.

When a property is put to auction in a suit for partition, the provisions

of the Partition Act, indisputably, shall apply.   

Section 2 of the Partition Act, 1893 provides that whenever in a suit

for partition in which, if instituted prior to the commencement of the Act, a

decree for partition might have been passed, it appears to the court that, by

reason  of  the  nature  of  the  property  to  which  the  suit  relates,  or  of  the

number of the shareholders therein, or of any other special circumstance, a

division of the property cannot reasonably or conveniently be made and that

a sale of property and distribution of the processes would be more beneficial

for  all  the  shareholders,  the  court  may, direct  sale  thereof  subject  to  the

41

condition  that  the  request  therefor  had  come  from  a  shareholder  or

shareholders  interested  individually  or  collectively  to  the  extent  of  one

moiety or upwards.  What therefore was necessary is that there should be a

request  from a  shareholder  ;  a  formal  prayer  to  that  effect  may not  be

necessary ; a positive finding that the property is incapable of division by

metes  and  bounds  would  be  necessary  and  that  the  property  cannot  be

reasonably or conveniently be partitioned.   

Section  3  of  the  Act  envisages  sale  of  the  property  within  the

shareholders.  It unlike the provisions of the Code of Civil Procedure, does

not debar a shareholder from taking part in auction inter alia on the premise

that the shareholder may be interested in keeping the property to himself.  A

balance must be struck in regard to the individual interest of the shareholder

having regard to the conflicting interest in the respective bids vis-à-vis the

value of the property.   

Parties have half share in each of the properties in suit.  In terms of

the preliminary decree and order dated 20th July, 1979 valuation of the suit

property was to be done by a well known valuer.  Such an order was passed

on  the  basis  of  an  agreement  between  the  parties.   Ascertainment  of

42

valuation of the suit property was directed in terms of Sections 2 and 3 of

the Partition Act.  The said order indisputably had not been varied, altered

or modified.  

Azimganj  properties  had  initially  been  put  in  two  lots.   However,

subsequently  the  defendants-respondents  through  their  application  dated

16th August,  1983  took  out  the  same from that  two  lots.   From various

applications as also of the proceeding before the Commissioner of Partition,

no mechanism could be agreed upon for division of the said properties.  It

was, therefore, a case where the requirement of Section 2 of the Partition

Act were clearly attracted.  An application was also filed on 16th August,

1983 by the defendants/respondents stating :-

“11. Your  petitioner  states  that  in  order  to obviate  the  question  of  valuation  of  properties  a base price be fixed from which the parties may be at  liberty  to  bid  as  was  the  order  made  His Lordship the Honourable Mr. Justice A.K. Sarkar on  20th July,  1979  and  the  same  procedure  be followed in respect of the three properties.”  

Thus, base or the reserve price was to be fixed for the said properties

also.  The said decision is fortified from the Minutes of the Meeting dated

43

30th July, 1983 of the Joint Commissioner and the order of the Court dated

10th June, 1984.   

Before the High Court specific ground in this behalf had been taken.

In fact there is a clear admission on the part of the defendants/respondents

as would  appear  from their  application  dated  16th August,  1983 that  the

properties were kept out of the lots since they were incapable of partition by

metes and bounds.   

It  furthermore  appears  that  in  their  counter-affidavit  the

defendants/respondents have clearly admitted:

“Thereafter  the  defendants  in  the  said  suit  being Kumar  Chandra  Singh  Dudhoria  and  his  branch prepared a Scheme for partition of the immoveable properties  and  submitted  the  same  to  the Commissioner  of  Partition.   The  said  Scheme suggested,  inter  alia,  that  three  properties  which could  not  be  partitioned  by  metes  and  bounds namely  Premises  No.01,  Netaji  Subhas  Road, Calcutta,  Rajbari  and  Dharamshala  at  Azimganj (hereinafter referred to as the said properties)  be offered  to  the  parties  for  sale  through  bidding without valuation.  The rest of the joint immovable properties were divided into two lots viz. “A” and “B”.   

44

It may not, therefore, be correct to contend that the provisions of the

Partition Act were not attracted.  

Sub-section (2) of Section 3 mandates valuation to be made by the

court at which a sale of the share or shares can be directed to be made only

when the highest  price is  offered to be paid by another  co-sharer.   Sub-

section (3) of Section 3 thereof provides that if no shareholder is willing to

buy share or shares at the price so ascertained, the applicant or applicants

shall  be  liable  to  pay  all  costs  of  or  incidental  to  the  application  or

applications,  which  leads  to  the  conclusion  that  in  the  absence  of  pre-

determining  valuation  in  regard  to  the  half  share  of  the  properties,  the

properties in question could not have been put to auction sale.   

It has been contended that the plaintiffs agreed that valuation of the

property was not  necessary.  The said contention  cannot  be accepted for

more than one reason, firstly because of the order passed by the High Court

in passing a preliminary decree, which could be varied or modified only by

a subsequent order ; secondly because once the provisions of the Partition

Act are held to be applicable, keeping in view the legal principles attracting

45

construction  of  Sections  2  and  3  thereof,  no  deviation,  therefore,  in  our

opinion was permissible.   

It is not the contention of the plaintiffs/appellants that only a public

sale  was  permissible  in  law  but  even  in  regard  to  agreed  inter  se  sale

amongst the co-sharers, the provisions of the Partition Act were required to

be followed.   

In K. Ramamurthi Iyer  v.  Raja V. Rajeswara Rao, [ (1972) 2 SCC

721 ] this Court held :-

“ The scheme of Sections 2 and 3 apparently is that if the nature of the property is such or the number of shareholders is so many or if there is any other  special  circumstance and a division of the property cannot reasonably or conveniently be made the court can in its discretion, on the request of any of the shareholders interested individually or  collectively  to  the  extent  of  one  moiety  or upwards,  direct  a  sale  of  the  property  and distribute  the  proceeds  among  the  shareholders. Now  where  a  court  has  been  requested  under Section 2 to direct a sale any other shareholder can apply for leave to buy at a valuation the share or shares  of  the  party  or  parties  asking for  sale.  In such a situation it  has been made obligatory that the court  shall  order  a  valuation  of  the  share  or shares and offer to sell the same to the shareholder who has  applied  for  leave  to  buy the share  at  a price ascertained by the court. In other words if a

46

plaintiff  in  a  suit  for  partition  has  invoked  the power of the court to order sale instead of division in a partition  suit  under  Section 2 and the other shareholder  undertakes  to  buy at  a valuation  the share of the party asking for sale the court has no option  or  choice or  discretion left  to  it  and it  is bound to order a valuation of the share in question and  offer  to  sell  the  same  to  the  shareholder undertaking or applying to buy it  at  a valuation. The  purpose  underlying  the  section  undoubtedly appears to be to prevent the property falling into the hands of third parties if that can be done in a reasonable  manner.  It  would  appear  from  the Objects  and  Reasons  for  the  enactment  of  the Partition Act that as the law stood the court was bound to give a share to each of the parties and could not direct a sale or division of the proceeds. There  could  be  instances  where  there  were insuperable  practical  difficulties  in  the  way  of making an equal division and the court was either powerless to give effect to its decree or was driven to all kinds of shifts and expedients in order to do so. The court was, therefore, given a discretionary authority to direct a sale where a partition could not reasonably be made and the sale would, in the opinion  of  the  court,  be  more  beneficial  to  the parties. But having regard to the strong attachment of  the  people  in  this  country  to  their  landed possessions the consent of the parties interested at least to the extent of a moiety in the property was made a condition precedent to the exercise by the Court of the new power. At the same time in order to prevent any oppressive exercise of this privilege those shareholders who did not desire a sale were given a right to buy the others out at a valuation to be determined by the court.

47

As regards construction of Section 3 of the Act it was held :-

“…The language of Section 3 of the Partition Act does not appear to make it obligatory on the court to  give  a  positive  finding  that  the  property  is incapable  of  division  by  metes  and  bounds.  It should only “appear” that  it  is  not  so capable of division.  It  has  further  been  contended  that  the respondent  had  maintained  throughout  that  the property  was  capable  of  division.  He could  not, therefore, take advantage of the provisions of the Partition Act…”  

[See also  Sathi Lakshmana KC v.  PC Mohandas, 2008 (4) KLT 401

and Smt. Rukmani w/o Late Ethraj v. Uday Kumar S/o Late B. Venkatesalu,

ILR 2008 KAR 13]

Our attention  has been drawn to  a decision  of  this  Court  in  Badri

Narain Prasad Choudhary  v.  Nil Ratan Sarkar, [(1978) 3 SCC 30].  Therein

while  opining  that  Sections  2 and 3 of  the Partition Act  are  interlinked,

having  regard  to  the  fact  that  the  property  being  small  could  not

conveniently and reasonably be partitioned without destroying its intrinsic

wealth,  this  Court  evolved  an  equitable  method  to  take  the  value of  the

property  as Rs 50,000/- in 1963 and allowed a reasonable increase for the

rise in price since 1963, taking into account the rise in price in the locality,

and  gave  the  defendant  the  first  option  to  retain  the  whole  property  on

48

payment  of  13/16 share  of  that  valuation  (including  the  increase)  to  the

plaintiffs within a period of specified therein.   

The said decision does not lay down any legal principle.  In any event

it has no application to the facts of the present case, keeping in view the

extent  of  the  properties,  as  indicated  by  us  heretobefore.    We  may

furthermore notice that therein unfortunately attention of this Court was not

drawn to the decision of this Court in K. Ramamurthi Iyer (supra).   

It was urged before us that such a question having never been raised,

this Court should not permit the same to be raised before this Court for the

first time.  It, however, appears that the plaintiffs/appellants raised the said

contention in the grounds of appeal.  Though raised, the same had not been

considered by the Division Bench.

In any event  if  the defendants-respondents  intend to  invoke equity

they must also do equity. As would appear from the record, apart from the

order passed at the time of passing of the preliminary decree dated 20th July,

1979 but also from the Minutes of the Joint Commissioner’s Meeting dated

30th July, 1983 ; application of the respondents dated 16th August, 1983 and

from the order dated 10th June, 1984, it is clear that the provisions of the

49

Partition Act shall apply, particularly when in view of the decision of this

Court  in  K.  Tamamurthi  Iyer (supra),  neither  any  aforementioned

application was necessary nor any specific finding thereto was imperative.

Once it is held that the provisions of the Partition Act are applicable, the

court was bound to comply with the provisions thereof.  If that is the legal

principle, on interpretation of the Partition Act as also from the decision of

this Court, it must be held that the Commissioner of Partition and the High

Court failed to comply with the said provisions.   

In  Malati  Ramchandra  Raut  (Mrs)  v.  Mahadevo  Vasudeo  Joshi,

[1991 Supp (1) SCC 321 ] this Court held :-

“9. It is the duty of the court to order the valuation of the shares of the party asking for a sale of the property under Section 2 and to offer  to sell  the shares of such party to the shareholders applying for leave to buy them in terms of Section 3 at the price determined upon such valuation.”  

We may also notice that in T.S. Swaminathan   v.  Official Receiver

of West Tanjore, [ AIR 1957 SC 577 ], this Court held as under :-  

“14.   It must be remembered that the decree was one for partition of the properties belonging to the

50

joint  family  of  which  the  Defendant  3  and  the appellant were coparceners. While effecting such a partition  it  would  not  be  possible  to  divide  the properties  by  metes  and  bounds  there  being  of necessity  an  allocation  of  properties  of  unequal values amongst  the members of the joint family. Properties  of  a  larger  value  might  go  to  one member  and  properties  of  a  smaller  value  to another  and therefore there would have to  be an adjustment  of  the  values  by  providing  for  the payment  by  the  former  to  the  latter  by  way  of equalisation of their shares. This position has been recognised  in  law  and  a  provision  for  such payment  is  termed  “a  provision  for  owelty  or equality of partition’.”

We may quote with approval the meaning of the term ‘owelty’ :-

“‘Owelty’.—When  an  equal  partition  cannot  be otherwise made, courts of equity may order that a certain sum be paid by the party to whom the most valuable property has been assigned. The sum thus directed to be paid to make the partition equal is called ‘owelty’.”

This could clearly show that the court has no power to direct sale de’ hors

the provisions of the Partition Act.  

This brings us to the question as to whether the provisions of Section

6(1) of the Partition Act have been complied with or not.  Sub-section (1) of

51

Section 6 of the Partition Act mandatorily requires fixation of a reserved

price.   Parties appear to have agreed thereto before the Commissioner of

Partition as would be cleared from the respondents’ application dated 16th

August, 1983.  Such a stand had also been taken by the parties before the

High Court as would appear from the order dated 11th June, 1984 which is to

the following effect :-

“….It  has  been  suggested  by  the  Advocate  on Record of the Petitioner as also of the defendants that a base price be fixed as the reserve price and thereafter  the parties may be given the liberty to bid for the properties and the ultimately purchaser in  turn  would  pay  the  half  price  to  the  other party…”  

It  is  of  significance  to  notice  that  respondents  in  their  application

dated 22nd January, 1997 prayed for a direction from the High Court to the

Commissioner of Partition that “they may be given leave to sell  the said

properties without fixing any reserve price” as also “that a liberty be given

to the Commissioner of Partition to permit the parties present to purchase

the said properties at their own valuation.”  

If the provisions of Section 6 of the Partition Act are imperative in

nature  any  such  prayer  could  not  have  been  entertained.   Such  a

52

leave/liberty had not been granted to the Commissioner.  The Commissioner

was directed to carry out of the auction sale in terms of the order dated 11th

June,  1984.   It  has  been  urged  that  the  plaintiffs-appellants  themselves

agreed that  the properties  need not  be valued.   However,  from the order

dated 11th June,  1984 it  appears  that  with  a view to  avoid the costs  and

expenditure  to  be  incurred  toward  the  appointment  of  the  valuer,  it  was

stated that the valuation of the properties need not be done by a valuer but

the  same would  not  mean that  the  plaintiffs-respondents  had  themselves

agreed not to have any valuation of the properties at all.  The respondents,

however, had even not denied or disputed that he had also agreed to the

same  which  would  appear  from  the  following  statements  made  by

respondent  No.2  in  his  affidavit  before  the  High  Court,  which  read  as

under :-

“9. Your  petitioner  states  that  Advocate  on behalf  of  your  petitioner  as  also  the  Advocates, appearing for the other defendants had suggested that a base price be fixed as the reserved price and thereafter  the  parties  may  bid  for  the  properties and ultimate purchaser shall have to pay the half price  to  the  other  party  in  order  to  obviate  the costs  and  expenditure  involved  in  having  the properties  valued  by  a  valuer  but  the  said suggestion was never acceded to by the plaintiffs. In this connection the copies of the minutes of the meeting dated 25th July 1983 and 30th July 1983 are annexed hereto and collectively marked as ‘D’.

53

… … …..

12. Your  petitioner  further  states  that  if  the properties  are  to  be  valued  by  a  valuer  the minimum costs of such valuation would be about Rs.25,000/- and your petitioner is not in a position to  afford  such  expenses  in  respect  of  such valuation.   If  the  procedure  suggested  by  your petitioner is accepted neither the plaintiffs nor the defendants  would  be  prejudiced  in  any way but expenses  for  valuation  of  the  properties  can  be dispensed with.”

We may also notice from the order sheet dated 11th June, 1983 that

the  Court  had  allowed  the  prayers  (b)  & (c)  of  the  petition  and  not  of

‘Notice of Motion’ where prayer (b), as noticed hereinbefore,  was to the

following effect:-

“b) Directions  be  given  to  the  Joint Commissioner  of  Petition  regarding allotment  of properties  being  premises  no.  91,  Netaji  Subhas Road,  Calcutta,  Rajbati  at  Azimganj  and Dharamshala at Azimganj.”

This court would go by the records of the High Court and not by the

prayer made in the notice of motion.

54

No application for modification of that order had been prayed for.  In

any event the said order could not have been passed in supersession of the

order dated 20th July, 1979.   Valuation of a property of this nature even, in

the interest of justice, is to protect the rights of the parties.  Code of Civil

Procedure provides therefor as would appear from Order XXI Rule 72A(2).

Although  the  said  provision  may  not  ipso  facto  available  but  we  are

referring thereto, as apart from the fact that the court had such a duty to fix

the reserve  price,  this  Court  in  D.S.  Chohan  v.   State  Bank  of  Patiala,

[  (1997)  10 SCC 65 ] had set  aside the sale for  not  complying with  the

statutory provisions of fixing the reserve price under Order XXI Rule 72A

(2) of the Code of the Civil Procedure.  

We have been taken through the conduct of the parties in great detail.

Even if for the time being we keep aside non-appearance of some of the

plaintiffs-appellants  at  each  stage  of  the  proceedings  before  the

Commissioner(s) of Partition, it is clearly borne out from the records that

admittedly notices had been issued by the Commissioner of Partition only to

three plaintiffs on 5th April, 1997, namely plaintiff No1 ; plaintiff No.3 and

plaintiff No.6.  Why no notice was issued to Amita Dudhoria has not been

explained.   It  is  difficult  to  comprehend  that  only  three  of  them  were

55

chosen, - one of them being ill, another being in U.S.A. for more than 26

years and another allegedly colluding with the defendants.    

It is not necessary for us to delve in detail in regard to the conduct of

Shri Anand Aggarwal, Advocate, but in view of Rule 18  of Order XXVI of

the Code of Civil Procedure, there cannot be any doubt, whatsoever that the

Commissioner should have issued notice to all the parties.

Mr. Manoj Goel has placed reliance on a large number of decisions

before  us  to  contend  that  Rule  18  of  Order  XXVI  is  mandatory.   We,

however, need not advert to the said decisions as atleast seven out of eight

plaintiffs contend before us that they did not have notice of bidding.  None

of the plaintiffs have been shown to have bid for any of the three properties.

It is unlikely that they would stay out even if they had notice and allowed

the defendants to bid behind their back.  Sheema Dudhoria evidently had

been supporting the defendants.   Even the learned Single Judge recorded

that she had given instructions to support the case of the defendants.

Such a notice was also necessary as in a suit for partition each party

has an individual right.  One of them atleast is siding with the defendants.

Even  the  plaintiffs  admittedly  had  received  payment  in  part.   Even  the

56

defendants did not offer the bid jointly.  Defendant No.2 in his individual

capacity had offered his bid in one of the properties in his individual name

and only with defendant No.3 in respect of one of the properties.

It must also be placed on record that the High Court in its order dated

10th March,  1997,  categorically directed the Commissioner of Partition to

give  at  least  7  days’ clear  notice  to  the parties  before  holding  any such

meeting  so  as  to  enable  them to  be  present  personally  or  through  their

advocates.  Issuance of such a notice was imperative in character.  

In  D.S. Chohan v.  State Bank of  Patiala [(1997)  10 SCC 65],  this

Court held:

“…An  objection  was  raised  by  the  appellants against  the  acceptance  of  the  said  bid  of  the respondent  on  the  ground  that  there  was  non- compliance  with  the  mandatory  provisions  of Order 21, Rule 72-A CPC. The said objection was rejected  by  the  learned  Single  Judge  and  the appeal filed by the appellants has been dismissed by the Division Bench of the High Court by the impugned judgment. 3. In view of the specific requirement contained in sub-rule (2) of Rule 72-A of Order 21 CPC that in cases  where  leave  to  bid  is  granted  to  the mortgagee,  the Court  shall  fix  a reserve price as regards  the  mortgagee  and  unless  the  Court otherwise directs the said reserve price has to be in consonance  with  requirement  of  clauses  (a)  and (b),  it  was  incumbent  for  the  Court  to  fix  the

57

reserve  price.  In  the  order  dated  2-1-1981  the Court, while permitting the respondent mortgagee to  make  the  bid,  did  not  give  any  direction regarding  fixing  the  reserve  price.  The  sale  in favour  of  the  respondent  having  been  made  in violation of the mandatory provisions of Order 21, Rule 72-A(2) CPC cannot be upheld and has to be set aside.”

A Division Bench of the Kerala High Court in Nedungadi Bank Ltd.

v.  Ezhimala  Agrl.  Products [2003  (3)  KLT  1011]  while  opining  that

“reserve price” and “upset price” though analogous and almost homologous

but are not synonymous, stating:

“…While understood in the context in which the expression  is  employed  in  the  code,  "reserve price" means a price reserved at an auction as the minimum amount realisable by sale of the property so  as  to  realise  the  entire  mortgage  debt  or  a proportionate portion of the mortgage debt- a price which will remain static during the sale unless the court on grounds of genuine diffidence on the side of the decree-holder chooses to reduce the same. Fixation of reserve price is  peculiar  to situations where  court  grants  permission  to  mortgagee- decree-holders  to bid in  the auction.  Upset  price and reserve price are certainly the lowest prices for which the properties will  be sold in auction. But the term "reserve price is exclusive to mortgagee- purchasers.  The  term  "upset  price"  is  used generally  in  respect  of  purchases  by  all  others including third parties. When upset price has been

58

fixed,  the  bid  should  commence  with  that  price and the sale will ultimately be held for an amount higher than that price. But in the case of reserve price, the bid can commence with the upset price which may be an amount below the reserve price. But the moment the mortgage-decree holder avails the leave granted to him by the court, the sale will be  knocked  down  in  his  favour  for  the  reserve price,  though  nothing  prevents  a  conscientious decree-holder from bidding and purchasing for a higher amount.”

Emphasizing the need to comply with the statutory rules as contained

in various provisions under Order XXI of the Code of Civil Procedure, this

Court in Manilal Mohanlal Shah and Others v. Sardar Sayed Ahmed Sayed

Mahmad and another [AIR 1954 SC 349] held that the inherent power of the

court cannot also be resorted to circumvent the mandatory provisions of the

Code.

This Court  in  Laxmikant Chhotelal Gupta v.  State of Maharashtra,

[ (2007) 5 SCC 713 ] clearly held :-  

“14. Even  when  an  auction  takes  place  under orders of the competent civil court, the procedures laid  down  in  the  Code  of  Civil  Procedure  are required  to  be  complied  with.  Objections  to  the validity of sale at the instance of one party or the other  are  required  to  be  considered  and determined.  Even an appeal  lies  against  such  an

59

order in terms of Order 43 Rule 1(u) of the Code of Civil Procedure.

15. Provisions  of  a  statute,  whether  directory or mandatory,  necessitating  strict  or  substantial compliance  are  questions  which  must  be determined by the courts. This Court thought that the High Court would do so. Presumably the effect and purport of this Court’s order having not been brought  to  its  notice,  we,  therefore,  are  of  the opinion that  the  matter  should be directed  to  be considered afresh by the competent authority. We are informed at the Bar that Respondent 4 being Assistant  Commissioner  of  Sales  Tax  is  the competent authority therefor. We, therefore, while setting  aside  the order  of  the  High  Court  would direct  the  said  authority  to  consider  the contentions raised by the appellants herein on their own merits.”

A large  number  of  circumstances  had  further  been  brought  to  our

notice to establish collusion and fraud.   We may notice some of them.

The application dated 20th January, 1997 was moved after 13 years at

the time when plaintiff No.1 was unwell and plaintiff No.4 had to take her

to Delhi for treatment.  No court proceeding had taken place for 13  years.

A reserved price had not been fixed.  Notices had not been given to all the

60

parties.  For the said purpose, the Commissioner could not have devised his

own procedure.

Sheema Dudhoria  had  shown  an  unusual  interest  in  attending  the

meetings allegedly without instructions from other plaintiffs.  Even Anand

Agarwala,  Advocate,  appeared  without  notice.   He  did  not  raise  any

objection in that regard and even accepted the cheque after the expiry of 45

days wherefor no order of the court or the Commissioner of Partition was

obtained.   

If any auction had taken place by fraud or collusion the same is non

est in the eyes of law.  We are not suggesting that mere suspicion of fraud

would amount to proof thereof but the High Court in our opinion should

atleast have gone into such a question.  The Division Bench, in our opinion,

should also have gone into this question.  If it required proof, the question

should have been clearly answered by referring to the documents and other

materials on record so as to enable it to arrive at a finding that no fraud or

collusion had taken place.  A finding to that effect one way or the other was

required to be arrived at.  The Division Bench proceeded on the basis that

despite notices the plaintiffs did not participate in the proceeding without

61

considering as to whether their plea that they did not receive any notice was

correct  or not.  Even the learned Single Judge did not  return any finding.

The  learned  Single  Judge  did  not  frame  any  issue.   Furthermore  some

material irregularities had also taken place in the conduct of auction.  Notice

of clear 7 days had not been given to the plaintiffs.   Only 10% of the sale

amount was received by plaintiff No.6.  Even that amount was in the name

of Rani Aloka Dudhoria.  The cheque was deposited in the joint account

which was withdrawn by her alone.   

On one occasion the High Court declined to confirm sale in favour of

the appellants  when six  months’ time had been asked for the purpose of

deposit  of  the amount.   However,  such a request  on the  part  of plaintiff

No.4-appellant had not been acceded to.    

The  defendants-respondents  did  not  deposit  the  amount  within  45

days of the date of auction.  It is stated that no payment had been made in

respect of the property 19, Netaji Subhash Road, Calcutta.  The cheque was

made in the name of the Advocate on record.  Although initially the cheque

was  drawn  in  the  name of  plaintiff  No.2,  there  was  no  such  stipulation

therefor.  Any payment made to Anand Aggarwala after the expiry of the

stipulated period of 45 days must be held to be in violation of the terms and

62

conditions stipulated  in regard to the sale of the  property dated 8th May,

1977.   

In  Behari Kunj Sahkari  Avas Samiti v.  State of U.P. & Ors. [2008

(10) SCALE 551], this Court observed:

“13. In State of A.P. and Anr. v. T. Suryachandra Rao  [2005(6)  SCC  149] it  was  observed  as follows:

By  "fraud"  is  meant  an  intention  to  deceive; whether it is from any expectation of advantage to the party himself or from the ill  will towards the other  is  immaterial.  The  expression  "fraud" involves  two  elements,  deceit  and  injury  to  the person  deceived.  Injury  is  something  other  than economic  loss,  that  is,  deprivation  of  property, whether movable or immovable or of money and it will include and any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non- economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always call loss or detriment to the deceived. Even in  those  rare  cases  where  there  is  a  benefit  or advantage  to  the  deceiver,  but  no  corresponding loss  to  the  deceived,  the  second  condition  is satisfied.”  

Fraud as is  well  known vitiates  all  solemn acts.   Suppression of  a

document, it is also trite, may amount to fraud on the court.  The effect of

63

commission of fraud must be taken note of.  [See also  Bank of India and

Another v. Avinash D. Mandivikar and Ors. (2005) 7 SCC 690]

For the views we have taken, it is not necessary for us to go into the

questions of fraud and collusion in details.  The impugned judgments of the

High Courts are set aside.  We, however, keeping in view the peculiar facts

and  circumstances  of  the  case  and  in  exercise  of  our  jurisdiction  under

Article  142  of  the  Constitution  of  India  would  issue  the  following

directions:-

(a) The matter shall be fixed before the learned Single Judge of the

High Court  under the heading “FOR BEING MENTIONED”

on 6.04.2009, on which date all the parties shall remain present

either  personally  or  through  their  learned  Advocates.   No

separate notice therefor need be issued.

(b) The High Court shall pass an order as regards the valuation of

the properties under the provisions of the Partition Act.

(c) The  High  Court  may  either  by  itself  or  through  the

Commissioner  of  Partition  or  any  other

64

Advocate/Commissioner cause an inter party auction to be held

on a date to be fixed therefor.

(d) All  amounts  deposited  or  paid  to  the  parties  by  respondent

No.2 and/or  3 shall  be returned to them forthwith.  If  in the

parties auction sale is not found to be possible, the High Court

may pass such other order/orders as may deem fit and proper.   

The appeals  are allowed with the aforementioned directions.  There

shall be no order as to costs.    

………………………J.

    ( S.B. SINHA )

………………………J.

 ( CYRIAC JOSEPH )

New Delhi

March 05, 2009

65