Aloka Dudhoria & Ors. Vs. Goutam Dudhoria & Ors.  INSC 493 (5
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
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.
all unnecessary details the fact of the matter is as under :- 2 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.
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.
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 3 between the parties in respect of
properties mentioned in Schedule `B of the plaint.
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
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.
meetings were held by the Commissioner during the period 30.10.1979 and
meantime, however, KCSD, died on 16.12.1980 leaving behind defendants No. 2 to
6 as his heirs and legal representatives.
4 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;
determination of tax and other liabilities."
consent order dated 1.09.1982 the said application was allowed, directing:
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.
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 5 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.
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."
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'.
Commissioner asked the parties to give a clear and definite answer to his query
as to how they propose to make valuation of the 6 properties for implementation
of the aforesaid consent order dated 1.09.1982.
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:
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.
Commissioner of Partition was given 76 GMS. To be as remuneration, the Joint
Commissioner of Partition would also receive the 7 same remuneration of 76 Gms.
to be shared by both the parties equally.
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.
parties including the Joint Commissioner of Partition to act on signed copy of
the minutes of this order on the usual undertaking."
about 10.06.1983 defendants/respondents made yet another application for
direction, inter alia, praying that:
Plaintiffs be directed to choose any one of the lots from either annexure `J'
or `K' herein.
lot chosen by the plaintiffs be allotted to them and the other lot be allotted
to the defendants;
Alternatively, the lots prepared by the defendants be put to lottery and
allotment made in accordance with the result of the lottery"
8 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.
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
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 :
"(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.
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.
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
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.
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 10 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:
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"
application, however the prayer (b) reads as under:
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;"
also note the order passed by Khastgir, J. in the following terms:
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 11 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.
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.
will also be an order in terms of prayers (b) and (c) of the petition."
advert to this question a little later.
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 12 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.
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
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:
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.
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 13 should realize that we are professional people and we
cannot afford our time to be wasted in this manner.
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.
any party fail to attend the said meeting on the scheduled day then the
decision would be taken in his/her absence."
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.
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 14 was still hanging; and the properties being
in a dilapidated condition require repairs and furthermore tax liabilities were
were sought for on the following terms:
Mr. Nirmal Kumar Mitra, Bar at law be directed to act as the Sole Commissioner
of Partition with consequential directions;
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.
commissioner of Partition be directed to:
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;
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.
Ascertain and apportion the liability of the estate and device ways and means
to liquidate the same.
complete allotment to the successful bidders within a stipulated time as may be
fixed by this Hon'ble Court."
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
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.
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 16 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,
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 .
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 17 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.
contend that she had no authority therefor.
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:
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.
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.
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
Simultaneously with the payment of the entire consideration the other party
shall hand over possession along with all 18 documents relating to title or
tenancies to the successful bidder."
in respect of the aforesaid three properties was to take place on 9.05.1997.
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 = 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:
-x Defendants No. 2 and 3 jointly Rs.7,00,000/- 19 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:
-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"
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.
no denial to such assertion.
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.
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.
of the defendants/respondents, a letter dated nil addressed to Mr. Anand
Agarwal was issued, stating:
"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.
with the said letter, the following cheques were enclosed, all of which were
drawn in favour of Mr. Anand Agarwal:
Cheque No. 629605 dt. 1.7.97 Drawn by Siddharth Dudhoria on the Federal Bank
Bhowanipore for Rs.3,15,000/-
No. 382712 dt. 1.7.97 drawn by Goutam Dudhoria on the Federal Bank Ltd.,
Bhowanipore for Rs.67,500/-
No. 382713 dt. 1.7.97 drawn by 22 Goutam Dudhoria on the Federal Bank Ltd.,
Bhowanipore for Rs. 3,15,000/-"
however, stands admitted that the said cheques have not been encashed. The said
payments furthermore were only in relation to two of the properties.
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.
had all along been aware that Sheela Jain and herself had been looking after
the matter and that they had been away from Calcutta.
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 23 Road were forwarded to
the defendants by the appellants in terms of a letter dated 23.07.1997.
Amita alone made an application on 22.09.1997 for cancellation of the sale of
the three properties, stating:
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.
had left Calcutta to stay at Delhi for a year (1996-97) for medical treatment
of her mother, Rani Aloka, P1."
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;
dated March 10, 1997 passed by the Hon'ble Justice Sujit Kumar Sinha be
recalled and/or set aside.
Commissioner of Partition and/or Receiver be directed to make fresh inventory
of all movables and/or immovable lying inside Rajbati, Azimganj."
24 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.
No. 4 took a change of her attorney from M/s. Rajesh Khaitan & Co. to M/s.
Dipak Dey & Associates.
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.
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:
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 25 some party did not appear it was only
because he or she did not choose to appear.
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."
plaintiffs also changed their lawyers replacing Anand Agarwal with M/s Victor
Moses & Co.
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
Division Bench by an order dated 8.01.1999, with the consent of the parties,
directed resale of the properties, stating:
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.
matter appear in the list marked "TO BE MENTIONED" for filing of
Terms of Settlement.
Sheema Dudhoria is directed to be personally present in Court on that
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
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.
leave petition was preferred by Amita as also the other plaintiffs except
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.
Contentions of the parties were however left open to be urged before the High
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.
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.
application was filed by the parties which has been dismissed by reason of the
impugned judgment dated 20.08.2004.
Goel, learned counsel appearing on behalf of the appellants, would submit:
impugned judgment cannot be sustained as the auctioneers had in collusion
committed fraud on the plaintiffs and/ or the court, the particulars whereof
are :- 28 (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.
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.
When one of the Joint Commissioners was elevated as a High Court Judge and when
a prayer had been made earlier that Mr.
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.
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 29
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
peremptory order dated 10.03.1997 was taken by the defendants when except
plaintiff No. 6, no other plaintiff was available.
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
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.
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.
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
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.
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 31 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.
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.
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.
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 32 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.
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.
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.
Although the defendants were aware that no document of title was available, in
their communication dated 20.06.1997, they sought to 33 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.
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.
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.
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.
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.
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.
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.
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.
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.
the properties were put on auction, the valuation of the property was not
P.S. Narasimha, learned counsel appearing on behalf of the appellants in Civil
Appeal Nos. 6693-94 of 2004 would contend:
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
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.
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.
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 36 amount was to be forfeited, the sale was confirmed
but no payment had been made within a period of six months.
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
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.
Gupta and Mr. Altaf Ahmed, learned senior counsel appearing on behalf of the
respondent Nos. 1 and 2, on the other hand, would contend:
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.
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
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
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
regards alleged collusion between Seema and the defendants, no evidence in
support thereof has been furnished.
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.
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.
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.
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.
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/- 40 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 = cottah. It
is situated at a prime location.
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
of the sale of the said properties, as indicated hereinbefore, is in question
inter alia on the premise that :- 41 (i) The provisions of the Partition Act
have not been complied with.
Seven out of eight plaintiffs had no notice as regards the date fixed for
Defendants/respondents in any event having not deposited the amount required
within the time stipulated, the auction sale was required to be set aside.
property is put to auction in a suit for partition, the provisions of the
Partition Act, indisputably, shall apply.
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 42
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
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-`-vis the value of the
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 43 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
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."
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 44 30th July,
1983 of the Joint Commissioner and the order of the Court dated 10th June,
the High Court specific ground in this behalf had been taken.
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
furthermore appears that in their counter-affidavit the defendants/respondents
have clearly admitted:
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
45 It may
not, therefore, be correct to contend that the provisions of the Partition Act were not attracted.
(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
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 46 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.
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.
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 47 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.
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
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
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
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 49 payment of 13/16 share of that valuation
(including the increase) to the plaintiffs within a period of specified
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).
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.
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 50 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.
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
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
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 51
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.
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'."
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
could clearly show that the court has no power to direct sale de' hors the
provisions of the Partition
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 52 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
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."
provisions of Section 6 of the Partition Act are imperative in
nature any such prayer could not have been entertained. Such a 53 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.
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'.
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."
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."
court would go by the records of the High Court and not by the prayer made in
the notice of motion.
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).
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
been taken through the conduct of the parties in great detail.
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 56
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.
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.
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.
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.
plaintiffs admittedly had received payment in part. Even the 57 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.
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.
Chohan v. State Bank of Patiala [(1997) 10 SCC 65], this Court held:
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
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
58 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."
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
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.
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 59
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
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."
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.
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 60 order in terms of Order 43
Rule 1(u) of the Code of Civil Procedure.
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."
number of circumstances had further been brought to our notice to establish
collusion and fraud. We may notice some of them.
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.
reserved price had not been fixed. Notices had not been given to all the 61
parties. For the said purpose, the Commissioner could not have devised his own
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.
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 62 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.
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
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
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 63 conditions stipulated in regard to
the sale of the property dated 8th May, 1977.
Kunj Sahkari Avas Samiti v. State of U.P. & Ors. [2008 (10) SCALE 551],
this Court observed:
In State of A.P. and Anr. v. T. Suryachandra Rao [2005(6) SCC 149] it was
observed as follows:
"fraud" is meant an intention to deceive;
it is from any expectation of advantage to the party himself or from the ill
will towards the other is immaterial. The expression "fraud"
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.
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
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 64 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"
6.04.2009, on which date all the parties shall remain present either personally
or through their learned Advocates. No separate notice there for need be
High Court shall pass an order as regards the valuation of the properties under
the provisions of the Partition
High Court may either by itself or through the Commissioner of Partition or any
other 65 Advocate/Commissioner cause an inter party auction to be held on a
date to be fixed there for.
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
appeals are allowed with the aforementioned directions. There shall be no order
as to costs.
...........................J. ( S.B. SINHA ) .
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