Rani Aloka Dudhoria & Ors. Vs. Goutam Dudhoria & Ors. [2009] INSC 493 (5 March 2009)
Judgment
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
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 :- 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.
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 3 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.
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;
(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 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.
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 6 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 7 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"
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.
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 :
9 "(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 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:
"(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 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.
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 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.
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 13 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 14 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."
15 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 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, 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 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.
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 18 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 = 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/- 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:
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"
20 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:
21 "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 22 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 23 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."
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.
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 25 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.
26 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.
27 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 :- 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.
(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 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 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.
30 (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 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.
(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 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.
(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 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.
(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.
34 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.
35 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 36 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.
37 (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.
38 (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.
39 (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/- 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.
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 :- 41 (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 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 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-`-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 valuatio
