# Tara Chandra Gupta v. Dr. Shakti Basu & Ors

- **Citation:** (2025) 6 ILRA 92
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-06-09
- **Bench:** Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tara-chandra-gupta-v-dr-shakti-basu-ors-50985
- **Pages:** 13

## Headnote

A. Civil Law - Partition suit - Preliminary
decree - Modification of shares on death of
co-sharer - Civil Procedure Code, S. 97 -
Scope of Section 97 CPC - Power of Court
to vary shares before final decree -
Pending final decree, the shares are liable
to be varied on account of intervening
events such as death of a party or change
of law, and though Section 97 CPC
provides an appeal against a preliminary
decree, the said provision would not be a
bar to file an application for amendment
of a decree. Remedy to question the
preliminary decree is under Section 97
CPC by filing appeal and not by making
any application for recalling the order.
(Para 59-61)

B. Chandi Das Basu filed Suit No. 254 of
1976 seeking partition by metes and
bounds
of
ancestral
properties.
A
preliminary decree determining the shares
of co-sharers was passed on 27.11.1979,
which was affirmed in First Appeal. For
execution, Final Decree Case No. 111 of
1980 was instituted by Chandi Das Basu.
On 20.06.1991, defendant no. 1, Ajay
Kumar Basu (brother of Chandi Das Basu)
died. On 17.02.1993 Chandi Charan Basu,
brother of Chandi Das Basu, died issueless
and intestate. On 27.03.1995, Chandi Das
Basu executed a registered agreement to
sell in favour of Tara Chandra Gupta
(present petitioner), his own share and
also the share of his deceased brother
Chandi Charan Basu. The agreement
disclosed existence of pending litigation
and preliminary decree. In the year 1997,
Chandi Das Basu died. His legal heirs filed
substitution application in Final Decree
Case No. 111/1980 on 01.07.1997, but
never pressed it. On 23.08.1997 he
executed another agreement to sell in
favour of Naseem Uddin and Safiq Ahmad,
despite the earlier 1995 agreement in
favour
of
Tara
Chandra
Gupta.
On
28.09.1998, Tara Chandra Gupta filed suit
for specific performance against heirs of
Chandi Das Basu and Naseem Uddin &
Safiq
Ahmad.
It
was
decreed
on
20.04.2010. First Appeal was dismissed on
22.10.2017; Second Appeal was dismissed
on 28.02.2020; SLP dismissed by Supreme
Court
on
14.09.2021.
Tara
Chandra
Gupta's right to obtain the sale deed
attained finality. On 25.04.2009, Amitabh
Basu, one of the sons of late Ajay Kumar
Basu (original defendant no. 1) filed
Application 65-C in Final Decree Case No.
111 of 1980 seeking variation in shares of
co-sharers after death of Chandi Charan
Basu
(who
had
died
issueless).
On
07.05.2012 Application 65-C was allowed;
preliminary
decree
modified.
On
04.02.2021 Tara Chandra Gupta filed
Application 72-C to be impleaded in Final
Decree Case No. 111 of 1980; which was
allowed on 20.07.2021. On 13.08.2021
Tara Chandra Gupta filed Application 86-C
to
recall/set
aside
the
order
dated
07.05.2012
modifying
the
preliminary
decree. Tara Chandra Gupta argued that
order dated 07.05.2012 was ex parte,
passed without notice to all necessary
parties including heirs of Chandi Das Basu.
On
08.12.2021,
the
sale
deed
was
executed from the Executing Court in
favour of Tara Chandra Gupta in respect of
6 All. Tara Chandra Gupta Vs. Dr. Shakti Basu & Ors.
93
agreement to sell executed by Chandi Das
Basu. Courts below rejected Tara Chandra
Gupta's recall plea holding that the order
of 07.05.2012 was not ex parte, parties
were duly represented. Tara Chandra
Gupta
invoked
Article
227
of
the
Constitution challenging orders rejecting
his
recall
application
86-C.
Held:
Petitioner
purchased
knowing
the
litigation
and
after
nine
years
of
modification of the preliminary decree
cannot allege the order dated 07.05.2012
as ex-parte. After the death of Chandi
Charan Basu no formal application for
amendment was moved by his heirs, the
application by the legal heirs of defendant
no. 1 was rightly allowed on 07.05.2012;
twice
publication
was
made
for
appearance of the heirs of the plaintiff,
who after filing substitution application in
1997 stayed away from the litigation and
even
did
not
contest
the
specific
performance
suit.
The
order
dated
07.05.2012 was therefore not

## Text

_Characters 0–39,932 of 42,365. This is a partial read: ask again with offset=39932 for what follows._

92 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2025) 6 ILRA 92
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.06.2023

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Matters Under Article 227 No. 14008 of
2024 (Civil)

Tara Chandra Gupta ...Petitioner
Versus
Dr. Shakti Basu & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bhuwan Raj, Sri Shiv Om Vikram Singh
Chauhan, Sri Vishnu Gupta (Sr. Adv.), Sri
Manish Goyal (Sr. Adv.)

Counsel for the Respondents:
Sri Nitin Yasharth, Sri Yasharth, Sri V.K.
Upadhyay (Sr. Adv.)

A. Civil Law - Partition suit - Preliminary
decree - Modification of shares on death of
co-sharer - Civil Procedure Code, S. 97 -
Scope of Section 97 CPC - Power of Court
to vary shares before final decree -
Pending final decree, the shares are liable
to be varied on account of intervening
events such as death of a party or change
of law, and though Section 97 CPC
provides an appeal against a preliminary
decree, the said provision would not be a
bar to file an application for amendment
of a decree. Remedy to question the
preliminary decree is under Section 97
CPC by filing appeal and not by making
any application for recalling the order.
(Para 59-61)

B. Chandi Das Basu filed Suit No. 254 of
1976 seeking partition by metes and
bounds
of
ancestral
properties.
A
preliminary decree determining the shares
of co-sharers was passed on 27.11.1979,
which was affirmed in First Appeal. For
execution, Final Decree Case No. 111 of
1980 was instituted by Chandi Das Basu.
On 20.06.1991, defendant no. 1, Ajay
Kumar Basu (brother of Chandi Das Basu)
died. On 17.02.1993 Chandi Charan Basu,
brother of Chandi Das Basu, died issueless
and intestate. On 27.03.1995, Chandi Das
Basu executed a registered agreement to
sell in favour of Tara Chandra Gupta
(present petitioner), his own share and
also the share of his deceased brother
Chandi Charan Basu. The agreement
disclosed existence of pending litigation
and preliminary decree. In the year 1997,
Chandi Das Basu died. His legal heirs filed
substitution application in Final Decree
Case No. 111/1980 on 01.07.1997, but
never pressed it. On 23.08.1997 he
executed another agreement to sell in
favour of Naseem Uddin and Safiq Ahmad,
despite the earlier 1995 agreement in
favour
of
Tara
Chandra
Gupta.
On
28.09.1998, Tara Chandra Gupta filed suit
for specific performance against heirs of
Chandi Das Basu and Naseem Uddin &
Safiq
Ahmad.
It
was
decreed
on
20.04.2010. First Appeal was dismissed on
22.10.2017; Second Appeal was dismissed
on 28.02.2020; SLP dismissed by Supreme
Court
on
14.09.2021.
Tara
Chandra
Gupta's right to obtain the sale deed
attained finality. On 25.04.2009, Amitabh
Basu, one of the sons of late Ajay Kumar
Basu (original defendant no. 1) filed
Application 65-C in Final Decree Case No.
111 of 1980 seeking variation in shares of
co-sharers after death of Chandi Charan
Basu
(who
had
died
issueless).
On
07.05.2012 Application 65-C was allowed;
preliminary
decree
modified.
On
04.02.2021 Tara Chandra Gupta filed
Application 72-C to be impleaded in Final
Decree Case No. 111 of 1980; which was
allowed on 20.07.2021. On 13.08.2021
Tara Chandra Gupta filed Application 86-C
to
recall/set
aside
the
order
dated
07.05.2012
modifying
the
preliminary
decree. Tara Chandra Gupta argued that
order dated 07.05.2012 was ex parte,
passed without notice to all necessary
parties including heirs of Chandi Das Basu.
On
08.12.2021,
the
sale
deed
was
executed from the Executing Court in
favour of Tara Chandra Gupta in respect of
6 All. Tara Chandra Gupta Vs. Dr. Shakti Basu & Ors.
93
agreement to sell executed by Chandi Das
Basu. Courts below rejected Tara Chandra
Gupta's recall plea holding that the order
of 07.05.2012 was not ex parte, parties
were duly represented. Tara Chandra
Gupta
invoked
Article
227
of
the
Constitution challenging orders rejecting
his
recall
application
86-C.
Held:
Petitioner
purchased
knowing
the
litigation
and
after
nine
years
of
modification of the preliminary decree
cannot allege the order dated 07.05.2012
as ex-parte. After the death of Chandi
Charan Basu no formal application for
amendment was moved by his heirs, the
application by the legal heirs of defendant
no. 1 was rightly allowed on 07.05.2012;
twice
publication
was
made
for
appearance of the heirs of the plaintiff,
who after filing substitution application in
1997 stayed away from the litigation and
even
did
not
contest
the
specific
performance
suit.
The
order
dated
07.05.2012 was therefore not ex-parte,
and
the
remedy
to
question
the
preliminary decree is under Section 97
CPC by filing appeal and not by making
any application for recalling the order
dated 07.05.2012. Petitioner cannot claim
the benefit of Section 41 of the Transfer of
Property Act as he knew the fact that by
preliminary decree dated 27.11.1979, the
shares of the parties have been defined
and plaintiff-Chandi Das Basu could only
transfer his 5/48 and 5/24 share of
property mentioned in Schedule-A & B,
but has also entered into an agreement
for the share of Chandi Charan Basu
without there being any modification of
preliminary decree. (Para 58, 61)

Dismissed. (E-5)

(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1. Heard Sri Vishnu Gupta, learned
Senior Counsel along with Sri Manish
Goyal, learned Senior Advocate assisted by
Shiv Om Vikram Singh Chauhan for the
petitioner and Sri V.K. Upadhyay, learned
Senior Advocate along with Sri Yasharth,
learned counsel for respondent no.7.

2. Present writ petition filed under
Article 227 of the Constitution of India
questions the order dated 23.09.2024
passed in Civil Revision No.92 of 2024 by
Additional District Judge/ Special Judge
(E.C. Act), Prayagraj, and order dated
29.05.2024 passed by Judge, Small Cause
Court, Prayagraj on Application 86-C for
recall of the order dated 07.05.2012 passed
in F.D. Case No.111 of 1980 for modifying
the preliminary decree passed in Original
Suit No.254 of 1976.

3. Facts, in brief, are that one
Shyama Charan Basu had two sons, Shrish
Chandra Basu and BamanDas Basu. He
was employed as a headmaster and later as
Registrar at Lahore, and after his death
Shrish Chandra Basu and Baman Das Basu
settled at Allahabad (now Prayagraj).
Shrish Chandra Basu was a District Judge
and died in the year 1918 while in service.
BamanDas Basu was a medical graduate
and was employed as a Major in the
Medical Corps in the Indian Army. Both
the brothers lived together during their
lifetime at 63 Bahadurganj, Allahabad.

4. After death of Shrish Chandra
Basu, his sons and grandsons and after the
death of Major Baman Das Basu, his son
Dr. L.M. Basu continued to live at 63
Bahadurganj. In 1931, L.M. Basu shifted at
249, Leader Road, and since then the
branch of BamanDas Basu is not in the
occupation of House No.63 Bahadurganj.

5. Shrish Chandra Basu had two
sons, Dr. S.N. Basu and Ramendranath
Basu. During his lifetime, Shrish Chandra
Basu had purchased other immovable
property given in Schedule-B to the plaint.
94 INDIAN LAW REPORTS ALLAHABAD SERIES
S.N. Basu had died issueless in the year
1967, however, he executed a Will
bequeathing his share to the three sons of
Ramendranath Basu and lifetime interest in
favour of Km. Deepti Basu in respect of
House No.63 Bahadurganj.

6. Ramendranath Basu had three
sons from his first wife, namely, Ajay
Kumar Basu, Chandi Charan Basu and
Chandi Das Basu. After death of his first
wife, he re-married and had one son Gopal
Chandra Basu and two daughters Preeti
Basu and Dipti Ghosh. Share of Baman
Das Basu was inherited by his son Lalit
Mohan Basu and thereafter by his son
Deepankar Basu.

7. Chandi Das Basu son of Late
Ramendranath Basu filed Suit No.254 of
1976 before the Court of Civil Judge
(Senior
Division),
Allahabad
seeking
partition by meets and bounds of Property
No.63 Bahadurganj, Allahabad described in
Schedule-A to the plaint and claimed 5/48
share, while also claimed relief for
affecting partition of immovable property
detailed in Schedule-B, claiming 5/24
share.

8. According to the plaint, Shrish
Chandra Basu and Baman Das Basu had
half share in Property No.63 Bahadurganj,
while the property described in Schedule-B
of the plaint was exclusively purchased by
Shrish Chandra Basu during his lifetime
which was to be succeeded by his branch
i.e. the heirs of Lt. Ramendranath Basu.

9.
By
the
judgment
dated
27.11.1979, Civil Judge (Senior Division),
Allahabad allotted 5/48 share in property
Schedule-A to plaintiff Chandi Das Basu
and 5/24 share in Schedule-B. While,
defendant no.6- Deepankar Basu was
allotted
half
share
in
the
property
mentioned in Schedule-A. Further, a
preliminary decree was prepared as regards
the share of all the co-sharers of the
property mentioned in Schedule-A and B.
Chandi Das Basu filed a Final Decree Case
No.111 of 1980.

10. Defendant no.1- Ajay Kumar
Basu filed First Appeal No.162 of 1980
challenging the preliminary decree before
this Court against the order of the trial
Court for directing the rendition of
accounts, but did not challenge the share
determined in the preliminary decree. The
appeal was partly allowed and the decree
passed by the trial Court for partition of
plaintiff's
5/48
share
mentioned
in
Schedule-A and 5/24 share in property
mentioned in Schedule-B except House
No.71, Bahadurganj and Plot No.27, Bai
Ka Bagh, Allahabad was affirmed subject
to plaintiff making good the deficiency of
court fees amounting to Rs.966/-. Further,
the decree passed in favour of defendant
no.6 was also affirmed.

11. Amin report dated 13.05.1985
was confirmed by the trial Court, but on
objections of one of the defendants, Ajay
Kumar Basu, the order was recalled on
12.02.1987. Chandi Das Basu challenged
the said order through Civil Revision
No.363 of 1987 before this Court. An order
of status quo was passed directing the
parties not to alienate the property.

12. On 20.06.1991, Ajay Kumar
Basu died leaving behind his wife, four
sons and three daughters. On 17.02.1993,
Chandi Charan Basu also died issueless. A
registered agreement to sell was executed
by Chandi Das Basu on 27.03.1995 in
favour of petitioner- Tara Chandra Gupta in
respect of his share and also of his brother
6 All. Tara Chandra Gupta Vs. Dr. Shakti Basu & Ors.
95
Chandi Charan Basu, in respect of House
Nos.63, 65 and 67, Bahadurganj for Rs.4
lakhs. Rs.50,000/- was paid in advance, and
the balance amount was to be paid at the
time of execution of the sale deed. Amitabh
Basu, legal heir of Ajay Kumar Basu filed
Contempt No.655 of 1995 against Chandi
Das Basu for flouting the orders of this
Court passed in Civil Revision No.363 of
1987.

13. On 09.11.1995, Civil Revision
No.363 of 1987 was dismissed. An S.L.P.
No.8939 of 1996 was filed by Chandi Das
Basu before Hon'ble Apex Court which
was dismissed on 09.12.1996 and order
dated 12.02.1987 passed by Civil Judge
asking for fresh amin report was confirmed.

14. On the other hand, Dipankar
Basu sold half of his share in favour of
Janhit
Sahkari
Avas
Samiti,
which
thereafter transferred the same to Motilal
Gupta,
who
thereafter
instituted
proceedings for preparation of final decree
which was registered as Final Decree Case
No.33 of 1997.

15. On 09.05.2005, Civil Judge
(Senior Division) issued direction carving
out share of Dipankar Basu by calling
second amin report. The said order was
challenged through civil appeal before the
District Judge by wife of Ajay Kumar
Basu. The said appeal was allowed by
order dated 12.11.2008, and the matter was
remanded back to the trial Court for fresh
amin report which is still pending.

16. In the meantime, Amitabh Basu
one of the legal heirs of Ajay Kumar Basu
filed an application 65-C on 25.04.2009 for
variation in share of co-sharers after the death
of Chandi Charan Basu who had died
issueless and intestate. On 07.05.2012,
application
65-C
was
allowed
and
preliminary decree was modified.

17. In the meantime, Chandi Das
Basu died in the year 1997 and his legal heirs
Vishwajit Basu, Samarjit Basu and Smt. Iti
Rakshit entered into an agreement to sell with
one Naseem Uddin and Safiq Ahmad in
respect of share of Chandi Das Basu and
Chandi Charan Basu, for which, already an
agreement to sell was registered in favour of
petitioner-
Tara
Chandra
Gupta
on
27.03.1995.

18.
Tara
Chandra
Gupta
on
28.09.1998
filed
a
suit
for
specific
performance which was registered as Suit
No.520 of 1998 against Naseem Uddina,
Safiq Ahmad and legal heirs of Chandi Das
Basu. It was decreed on 20.04.2010. A First
Appeal No.74 of 2010 was filed by Naseem
Uddin and Safiq Ahmad which was
dismissed on 22.10.2017. Against the said
judgment, Naseem Uddin and Safiq Ahmad
filed Second Appeal No.722 of 2017 before
this Court. The Co-ordinate Bench of this
Court on 28.02.2020 dismissed the second
appeal, against which, a Special Leave to
Appeal (C) No.9688 of 2020 was filed before
the Hon'ble Apex Court which was
dismissed on 14.09.2021.

19. Petitioner- Tara Chandra Gupta
filed application 72-C on 04.02.2021 for
impleadig him as a party in the Final Decree
Case No.111 of 1980. The said application
was allowed on 20.07.2021. Thereafter, Tara
Chandra Gupta filed application 86-C on
13.08.2021 for setting aside the order dated
07.05.2012 modifying the preliminary decree
and the shares of the co-sharers. Objections
94-C was filed by Amitabh Basu.

20. During pendency of the said
application, on 08.12.2021, the sale deed
96 INDIAN LAW REPORTS ALLAHABAD SERIES
was executed from the Executing Court in
favour of Tara Chandra Gupta in respect of
agreement to sell executed by Chandi Das
Basu. Both the Final Decree Cases No.111
of 1980 and 33 of 1997 were consolidated
by the orders of Civil Judge (Senior
Division), Allahabad on 11.01.2022.

21.
Application
86-C
was
dismissed by the trial Court on 29.05.2024,
against which, the petitioner preferred Civil
Revision No.92 of 2024 which was
dismissed by order dated 23.09.2024, hence
the present writ petition.

22. Sri Manish Goyal, learned
Senior Counsel appearing for the petitioner
submitted that on the application moved for
modification of preliminary decree, it was
necessary to issue notice to all the parties.
The order dated 07.05.2012 was passed
without issuing due notice to all necessary
parties. According to him, Chandi Charan
Basu had passed away in 1993, and an
application for modification in respect of
preliminary decree dated 27.11.1979 was
filed in the year 2009 i.e. after more than
16 years. He also submitted that Section
141 CPC provides for misc. proceedings
and procedures to be followed in regard to
suits. Thus, it was mandatory on the part of
the Court before allowing modification
application to have followed the procedures
provided therein.

23.
He
next
contended
that
modification application dated 25.04.2009
was filed by Dr. Amitabh Basu on behalf of
Lt. Ajay Kumar Basu was not maintainable
when heirs of Ajay Kumar Basu were taken
on record in the year 2015. He also
contends that the Court below committed
error
in
allowing
the
modification
application filed in Final Decree Case
No.111 of 1980, while dealing with Final
Decree Case No.33 of 1997. The order was
passed on consent of Motilal Gupta, a
stranger to the property in question, without
hearing the heirs of Chandi Das Basu and
other coparcener, who were necessary
parties.

24. He also emphasised that
Motilal Gupta had purchased the share of
BamanDas Basu which was inherited by
his grandson Dipankar Basu who had
transferred his half of share in favour of
Janhit
Sahkari
Avas
Samiti
and
proceedings of Final Decree Case No.33 of
1997 were initiated by Motilal Gupta
whose consent was immaterial in Final
Decree Case No.111 of 1980.

25.
He
next
contended
that
application seeking recall of order dated
07.05.2012 filed by petitioner ought to
have been considered on merit inasmuch as
petitioner was entitled to be heard in the
first instance. Modification of preliminary
decree was done behind the back of heirs of
Chandi Das Basu. Once, the petitioner has
stepped into shoes of Chandi Das Basu, he
had right to contest the application on
which orders were passed ex-parte.

26. It was also contended that sale
of property to petitioner by Chandi Das
Basu which included share of Chandi
Charan Basu having been affirmed by
Hon'ble Apex Court by dismissal of SLP
filed against the judgment upholding
agreement to sale would debar petitioner
from contesting the same. According to
him, Chandi Charan Basu died issueless
and according to Dayabhaga school,
Chandi Das Basu was the lone surviving
brother and the share of Chandi Charan
Basu was succeeded by Chandi Das Basu,
which both the Courts below failed to
consider. He has also relied upon Section 8
6 All. Tara Chandra Gupta Vs. Dr. Shakti Basu & Ors.
97
of Hindu Succession Act, 1956 especially
to the schedule wherein class-II heirs have
been mentioned who shall succeed to the
property of male Hindu dying instestate.
According to him, it is only Chandi Das
Basu who was entitled to succeed as Ajay
Kumar Basu died in the year 1991, and
Chandi Charan Basu died issueless in the
year 1993.

27. He lastly contended that
petitioner being bonafide purchaser is
protected under Section 41 of Transfer of
Property Act, 1882 having entered into a
registered agreement to sell with Chandi
Das Basu during his lifetime on 27.03.1995
and sale deed finally executed after the suit
for specific performance was decreed by
the trial Court having been confirmed by
Hon'ble Apex Court on 08.12.2021.
Reliance has been placed upon the decision
rendered by Hon'ble Apex Court in the
following cases:-

1.
Venkata Reddy and others
Vs. Pethi Reddy, 1962 SCC OnLine SC
320,
 2. Bikoba Deora Gaikwad and
another Vs. Hirabai Marutirao Ghorgare,
(2008) 8 SCC 198

 3. Shri Ramesh Chandra Vs.
Seth Ghanshiam Das, 1955 SCC OnLine
ALL 75
 4. Ram Kumar Vs. State of U.P.
and Others, (2023) 16 SCC 691

 5. A.V. Papayya Sastry and
others Vs. Govt. of A.P. and Others,
(2007) 4 SCC 221

 6. S.P. Chengalvaraya Naiduv
Vs. Jagannath and others, (1994) 1 SCC 1

 7.
Kantaru
Rajeevaru
(Sabarimala Temple Review-5 J.) Vs.
Indian Young Lawyers Assn., (2020) 2
SCC 1

 8. Spencer and Company Ltd.
And
another
vs.
Vishwadarshan
Distributors Pvt. And others (1995) SCC 1

 9. Suganthi Suresh Kumar Vs.
Jagdeeshan (2002) 2 SCC 420

 10. Titupati Balaji Developers
(P) Ltd. vs. State of Bihar (2004) 5 SCC 1

 11. Ram Kishore vs. State of
U.P. (2012) SCC OnLine All 605

 12. Crystal Developers Vs. Asha
Lata Ghosh, (2005) 9 SCC 375

 13. Syed Abdul Khader Vs. Rami
Reddy, (1979) 2 SCC 601

 14.
Kannappa
Chettiar
Vs.
Abbas Ali, (1952) 2 SCC 124

 15. Ram Chandra Aggarwal Vs.
State of U.P., (1966) SCC OnLine SC 232

 16. Jaswant Singh Vs. Parkash
Kaur, (2018) 12 SCC 249

 17.
Mst.
Nagina
Devi
Vs.
Brijnandan Pd.
Sinha,
(1972)
SCC
OnLine 74

 18. Sheo Soondary Vs. Pirthee
Singh, (1877) SCC OnLine 6

 19. Rajkishore Lahoory Vs.
Gobind Chunder Lahoory, (1875) I.L.R. 1
C 28
98 INDIAN LAW REPORTS ALLAHABAD SERIES
20. Asha Vaish Vs. VII Additional
District Judge Alld, (1997) SCC OnLine
All 308

28. Sri V.K. Upadhyay, learned
Senior Counsel appearing for respondent
no.7 submitted that partition suit filed in
the year 1976 by plaintiff Chandi Das Basu
clearly reveals in para 2 of the plaint that
common ancestor late Shyama Charan
Basu was employed as a headmaster and
later on as a Registrar at Lahore. After his
death, his sons settled down at Allahabad,
and they lived together jointly during their
lifetime at 63 Bahadurganj, Allahabad.
There is no averment in the plaint that
plaintiff and defendant hails from West
Bengal and have migrated to U.P. and are
governed by principles of Dayabhaga Law
in the matter of succession.

29. It is for the first time that
subsequent purchaser of plaintiff has raised
this question because parties are Bengali.
No such issue was raised either before the
trial
Court,
or
revisional
Court.
Applicability of Mitakshara or Dayabhaga
is mixed a question of fact to be decided on
the basis of pleading and proof on the
records of case. Reliance has been placed
upon a decision rendered in case of
Badriparasad Jagannath Agrawal and
another Vs. Madhu Dr. Harindrakumar
Lahiri and others, 2008 (4) Mh.L.J. 185.

30. It was next contended that the
suit filed by Chandi Das Basu clearly
reveals that pleadings were based on
Mitakshara School of Law, and in absence
of initial pleading and necessary proof for
Dayabhaga Law, no Court could return any
finding on the said question.

31. It is not the right stage or forum
to decide question of inheritance of share of
deceased Chandi Charan Basu. The Court
in its supervisory jurisdiction under Article
227 of the Constitution of India may not
consider
the
submissions
made
on
petitioner's behalf as there is neither
pleading nor any material before the Court
or any forum where the matter was raised.
Reliance has been placed upon the decision
rendered in case of K. Chinnammal
(Dead) Thr. Lrs. Vs. L.R. Eknath and
another, 2023 SCC OnLine SC 611.

32. It was next contended that
without any adjudication by Court, the
purchaser in interest of plaintiff i.e. Chandi
Das Basu on his own allocated the share of
brother
Chandi
Charan
Basu
and
unilaterally altered the share of 5/48 in
Schedule-A i.e. House No.63 Bahadurganj,
and 5/24 in Schedule-B property decided in
preliminary
decree
dated
27.11.1979,
which was affirmed by this Court vide its
judgment dated 16.05.1986.

33. According to him, it is
inconsequential
that
Executing
Court,
pursuant
to
decree
in
the
specific
performance suit of the petitioner, had
transferred the entire share of Chandi Das
Basu including that of Chandi Charan Basu
in favour of petitioner as there was no
dispute regarding the extent of share of
Chandi Das Basu in the said proceedings.
As far as the share of Chandi Charan Basu
was concerned, it was neither an issue nor
was adjudicated by any Court in specific
performance suit which culminated by
decision of Hon'ble Apex Court. It is only
on the basis of narration made in the
agreement to sell that the sale deed was
executed
and
the
suit
for
specific
performance was decreed.

34.
He
next
contended
that
application 65-C was filed on behalf of
6 All. Tara Chandra Gupta Vs. Dr. Shakti Basu & Ors.
99
Ajay Kumar Basu through his legal heirs in
Final Decree Case No.111 of 1980. All
family members were parties in both the
Final Decree Case No.33 of 1997 and 111
of 1980. The heirs of defendant no.1 Ajay
Kumar Basu had come on record in Final
Decree Case No.33 of 1997 as evident from
the order-sheet dated 10.12.2004. Further,
the order-sheet reveals that heirs of Chandi
Das Basu were served by publication on
12.01.2000 itself and service was deemed
sufficient by publication on 25.01.2005. On
08.04.2005, Court directed to put up
connected file on 28.05.2005 for final
disposal.

35. The order dated 09.05.2005
deciding both the Final Decree Case No.33
of 1997 and 111 of 1980 was passed in the
same order-sheet. Moreover, Amitabh Basu
son of defendant no.1 and his brothers had
already come on record by means of Civil
Appeal No.142 of 2005 preferred against
the order dated 09.05.2005.

36. He also contended that ordersheet reveals that both the Final Decree
Cases were connected though, no formal
order was passed. At the time of
consideration
of
application
65-C,
petitioner was not the party, and had only
agreement to sell in his favour. He despite
having knowledge by means of agreement
to sell that Final Decree Case No.111 of
1980
was
going
on,
the
petitioner
deliberately did not move any impleadment
application before passing of the order
dated 07.05.2012. The petitioner had filed
recall application 86-C on 13.08.2021 i.e.
after 9 years, though even then at that time,
no sale deed was executed in his favour.

37. It was then contended that
petitioner cannot be allowed to take up case
of heirs of Chandi Das Basu to say that
order dated 07.05.2012 is ex-parte, as there
was conflict of interest between the
petitioner and heirs of Chandi Das Basu.

38. Sri Upadhyay then emphasised
that heirs of Chandi Das Basu filed
substitution application (Paper No.16-A) on
01.07.1997, while they executed agreement
to sell on 23.08.1997 in favour of Safiq
Ahmad and Naseem Uddin and thereafter,
never pressed the substitution application
and left the Final Decree Case. However,
heirs of Chandi Das Basu were served by
publication on 12.01.2000 which is clear
from the order dated 25.01.2005 and were
again served by publication in Civil Appeal
No.142 of 2005 arising out of order dated
09.05.2005. The heirs of Chandi Das Basu
never turned before any Court, admittedly
even proceedings before all the Courts in
specific
performance
case
filed
by
petitioner right from trial Court uptill Apex
Court. It was thus not possible to serve
copy of application 65-C to petitioner or
legal heirs of Chandi Das Basu. Recall
application 86-C moved on 13.08.2021 is
primarily on two grounds; (i) that order
dated 07.05.2012 is ex-parte and, (ii)
application 65-C was moved in Final
Decree Case No.111 of 1980, but order was
passed in Final Decree Case No.33 of 1997.
Revisional Court had recorded categorical
findings on both these grounds taken.

39. It was also contended that in a
partition suit, modification of shares always
take place on birth and death of co-sharers
even after passing of preliminary decree
and it is only in partition suits that two or
more decree can be passed, but not in other
suits. A Suit No.386 of 2024 has already
been filed for cancellation of sale deed
dated
08.12.2021
which
is
pending
consideration before Civil Judge (Senior
Division), Allahabad.
100 INDIAN LAW REPORTS ALLAHABAD SERIES
40. It has been lastly contended
that
the
petitioner
had
remedy
of
challenging the order dated 07.05.2012 in
an
appeal
and
no
application
for
modification or recalling the order is
maintainable.

41. I have heard respective counsel
for the parties and perused the material on
record.

42. The case in hand has a long
chequered history. In a partition suit filed in
the year 1976, a preliminary decree was
passed on 27.11.1979 defining the shares of
all the co-sharers in the suit. It is an admitted
fact that one of the co-sharers/defendant no.1-
Ajay Kumar Basu had challenged the
preliminary decree before this Court through
First Appeal No.162 of 1980. The first appeal
was partly allowed on 16.05.1986 and this
Court confirmed the preliminary decree of
the trial Court to the extent of shares of the
parties therein and directed the plaintiff
Chandi Das Basu to make good deficiency of
court fees.

43. During the pendency of first
appeal before this Court, plaintiff Chandi
Das Basu had admittedly filed Final Decree
Case No.111 of 1980. In the said case,
amin report was confirmed, later on the
application of one of the parties, the report
was recalled by order dated 12.02.1987.
The order of the trial Court was challenged
by Chandi Das Basu through Civil
Revision No.363 of 1987, which was
finally dismissed on 09.11.1995. In the
meantime, two brothers of Chandi Das
Basu, namely, Ajay Kumar Basu and
Chandi Charan Basu unfortunately died on
20.06.1991 and 17.02.1993.

44. Chandi Das Basu who had filed
Final Decree Case No.111 of 1980 never
moved any application before the Court for
modifying the preliminary decree. Instead,
he entered into a registered agreement to
sell on 12.03.1995 with petitioner- Tara
Chandra Gupta not only in respect of his
5/48 share in Schedule- A and 5/24 in
Schedule-B
allotted
to
him
in
the
preliminary decree, but also in respect of
share allotted to his deceased brother
Chandi Charan Basu. Entire description of
the suit filed in the year 1976 including the
preliminary decree and filing of Final
Decree Case No.111 of 1980 was disclosed
in the agreement to sell.

45. Petitioner- Tara Chandra Gupta
immediately became aware of the fact that
he was purchasing the property which was
in litigation as till date no final decree was
prepared and property was not divided by
meets and bounds, only the shares of the
parties were determined by the preliminary
decree which was affirmed by the judgment
of this Court rendered in First Appeal
No.162 of 1980.

46.
Chandi
Das
Basu
had
specifically mentioned in the agreement to
sell that on the basis of Dayabhaga School
of Law, he was entitled to the share of
Chandi Charan Basu and was entering into
agreement to sell with petitioner- Tara
Chandra Gupta, but he never made any
application before the Court for getting the
preliminary decree modified. It was after
his death in the year 1997 that his two sons
Vishwajit
Basu,
Samarjit
Basu
and
daughter Smt. Iti Rakshit moved a
substitution application (Paper No.16-A) on
01.07.1997 in Final Decree Case No.111 of
1980. The legal heirs of Chandi Das Basu
thereafter executed a registered agreement
to sell on 23.08.1997 in favour of Safiq
Ahmad and Naseem Uddin in respect of the
same property for which Chandi Das Basu
6 All. Tara Chandra Gupta Vs. Dr. Shakti Basu & Ors.
101
had earlier executed agreement to sell in
favour of petitioner on 12.03.1995.

47. This led to filing of Suit
No.520 of 1998 by petitioner- Tara
Chandra Gupta for specific performance
against the legal heirs of Chandi Das Basu
and Naseem Uddin and Safiq Ahmad. In
the said suit, none of the co-sharers of the
property in dispute were arrayed as a party.
Though, petitioner- Tara Chandra Gupta
had full knowledge of the fact that Final
Decree Case which was filed by Chandi
Das Basu himself was pending before the
Court. It is wrong to say that the heirs of
Chandi Das Basu were not made party in
subsequent proceedings as they had filed
their substitution application (Paper No.16A), but did not press the same due to the
fact that they already transferred their
interest to Naseem Uddin and Safiq
Ahmad, despite the fact that their father
had already entered into agreement to sell
with Tara Chandra Gupta in the year 1995.

48. The legal heirs of Chandi Das
Basu were never interested in contesting
the Final Decree Case No.111 of 1980. The
suit for specific performance filed by
petitioner- Tara Chandra Gupta attained
finality by the orders of Apex Court dated
14.09.2021 and was binding between the
parties inter se.

49. In the meantime, the other
branch of Baman Das Basu where there
was no dispute as to their share, his
grandson Dipankar Basu had transferred his
half share of property mentioned in
Schedule-A to Janhit Sahkari Avas Samiti
who finally transferred it to Motilal Gupta
who had filed Final Decree Case No.33 of
1997. As the heirs of Chandi Das Basu
were not pursuing Final Decree Case
No.111 of 1980, publication was made in
daily newspaper in the year 2000, and
Court proceeded to hold the notice to be
sufficient upon them in the year 2005. The
order dated 09.05.2005 was subjected to
challenge
in
civil
appeal
in
which
publication was also made as regards legal
heirs of Chandi Das Basu, but they chose to
stay away as they had already transferred
their share in favour of Naseem Uddin and
Safiq Ahmad after taking due consideration
from them and suit being contested by
petitioner,
Naseem
Uddin
and
Safiq
Ahmad.

50. The legal heirs of defendant
no.1 were left with no option, but to
continue with Final Decree Case No.111 of
1980 and moved application 65-C in the
year 2009 for getting the preliminary
decree modified. Argument raised by
petitioner counsel that no notice was issued
to legal heirs prior to the passing of
modification order dated 07.05.2012 falls
flat in view of the fact that after moving
substitution application on 01.07.1997,
legal heirs of Chandi Das Basu lost interest
in contesting the matter as they themselves
had executed agreement to sell in favour of
Naseem Uddin and Safiq Ahmad on
23.08.1997.

51. Both the father and his children
had executed agreement to sell in favour of
petitioner and Naseem Uddin and Safiq
Ahmad in the year 1995 and 1997 without
getting the preliminary decree of 1979
modified.

52. At this stage, petitioner cannot
raise
question
as
to
shares
of
all
coparceners to be divided on the basis of
Dayabhaga School of Law as neither the
plaint discloses any fact nor any effort was
made by the plaintiff himself after the death
of Chandi Charan Basu on 17.02.1993. The
102 INDIAN LAW REPORTS ALLAHABAD SERIES
legal heirs of Chandi Das Basu also after
1997 never got the preliminary decree
modified on the basis of present claim as
raised by petitioner before this Court. Both
the alleged transfer of their rights through
agreement to sell by Chandi Das Basu and
his legal heirs in regard to share of Chandi
Charan Basu could not have taken place
without the preliminary decree being
modified.

53. From the judgment placed
before Co-ordinate Bench of this Court
rendered in Second Appeal No.722 of 2017,
it is clear that issue was never raised or
brought to the notice of the Court that share
of Chandi Charan Basu is also included in the
agreement to sell on the basis of Dayabhaga
School of Law. Judgment clearly reveals that
only consideration was as to whether the
agreement to sell executed and entered by
Chandi Das Basu in favour of petitioner- Tara
Chandra Gupta would prevail over the
subsequent agreement to sell executed by
Vishwajit Basu, Samarjit Basu and Iti Rakshit
in favour of Naseem Uddin and Safiq
Ahmad. It was on the basis of preliminary
decree passed in the suit filed by the plaintiff
Chandi Das Basu, a registered agreement to
sell having been entered on 12.03.1995, the
suit for specific performance was decreed and
was confirmed by Hon'ble Apex Court.

54. Issue in regard to the shares of
other co-sharers after death of Chandi
Charan Basu was never in consideration
before the Courts, nor the co-sharers were
made party in the suit instituted by plaintiff
being Suit No.520 of 1998, though he was
well aware of Final Decree Case No.111 of
1980 pending consideration among the cosharers.

55. Chandi Das Basu could not have
transferred the share of Chandi Charan Basu
without getting the preliminary decree of
1979 modified. It was a fraud played by him
upon the other co-sharers as the preliminary
decree dated 27.11.1979 had defined share of
each co-sharer in the property mentioned in
Schedule-A & B of the plaint.

56. Transfer could have only been
made after getting the preliminary decree
modified. Both Chandi Das Basu and his
legal heirs have washed away their hands by
entering into their respective agreement to
sell
with
parties
leading
chaos
and
unnecessary litigation between co-sharers and
outsiders.

57. Petitioner who was well aware
that he was purchasing a disputed property
and litigation was pending between cosharers, never moved any application for
being impleaded as a party in the said
proceedings. On the contrary, after the
preliminary
decree
was
modified
on
07.05.2012, he has moved an application 86C for recalling the said order on 13.08.2021
i.e. prior to the decision of the Apex Court as
well as before the sale deed was executed on
08.12.2021.

58. He cannot claim the benefit of
Section 41 of the Transfer of Property Act
being a bonafide purchaser knowing the fact
that by preliminary decree dated 27.11.1979,
the shares of the parties have been defined
which was confirmed in First Appeal No.162
of 1980, and plaintiff- Chandi Das Basu
could only transfer his 5/48 and 5/24 share of
property mentioned in Schedule-A & B, but
has also entered into an agreement for the
share of Chandi Charan Basu without their
being any modification of preliminary decree.

59. He has knowingly purchased
the litigation and after 9 years of
modification of preliminary decree, cannot
6 All. Tara Chandra Gupta Vs. Dr. Shakti Basu & Ors.
103
stand up and allege the order dated
07.05.2012 as ex-parte. Section 97 CPC
provides for appeal from preliminary
decree, which is as under:-

 "97. Appeal from final decree
where no appeal from preliminary decree.
Where
any
party
aggrieved
by
a
preliminary
decree
passed
after
the
commencement of this Code does not
appeal from such decree, he shall be
precluded from disputing its correctness in
any appeal which may be preferred from
the final decree."

60. In Phoolchand vs. Gopal Lal,
1967 AIR (SC) 1470, Hon'ble Court laid
emphasis that pending final decree, shares are
liable to be varied on account of intervening
event such as death of a party, or change of
law. This was subsequently followed by
Hon'ble Apex Court in case of S. Sai Reddy
vs. S.Narayan Reddy, 1991 (3) SCC 647,
wherein the Court held that shares are liable to
be varied on account of intervening events.

61. The Apex Court in Baliram
Atmaram Kelapure vs. Indirabai, 1996 (8)
SCC 400, held that though Section 97 CPC
provides for an appeal against preliminary
decree, but amendment of a decree was not
barred. Similar view was taken by Apex Court
in case of S. Satnam Singh & Ors. vs.
Surender Kaur & Anr., (2009) 2 SCC 562,
wherein the Apex Court taking a similar view
held as under:-

 "20. Indisputably, Section 97 of the
Code of Civil Procedure provides for an appeal
against preliminary decree but the said
provision, in our opinion, would not be a bar to
file an application for amendment of a decree.

 21. The court may not have a suo
motu power to amend a decree but the
same would not mean that the court cannot
rectify a mistake. If a property was subject
matter of pleadings and the court did not
frame an issue which it ought to have done,
it can, at a later stage, when pointed out,
may amend the decree.

 22. The power of amendment, in a
case of this nature, as noticed hereinbefore,
would not only be dependent upon the
power of the court but also the principle
that a court shall always be ready and
willing to rectify the mistake it has
committed."

62. Thus, I find that after the death
of
Chandi
Charan
Basu
no
formal
application for amending the preliminary
decree as to his share was moved by
Chandi Das Basu, nor his legal heirs, thus,
the application moved by legal heirs of
defendant no.1 was rightly allowed on
07.05.2012, on the basis of material
available on record and the parties being
represented therein. Once, the legal heirs of
Chandi Das Basu were avoiding the Court
and petitioner was watching the litigation
from outside without intervening the same,
the Court could not be faulted for amending
the preliminary decree so as to vary the
shares of the co-sharers after death of
Chandi Charan Basu.

63. Argument raised on behalf of
petitioner as to order being an ex-parte order
holds no ground in view of above discussion
and also the fact that twice publication was
made for appearance of legal heirs of Chandi
Das Basu, who after filing substitution
application in 1997 stayed away from the
litigation itself. They had also not contested
the suit for specific performance instituted by
the petitioner which itself is the revelation of
the fact that after getting the money, they
were not interested in pursuing the matter.
104 INDIAN LAW REPORTS ALLAHABAD SERIES
64. Further, the remedy to question
the preliminary decree is under Section 97
CPC by filing appeal and not by making
any application for recalling the order dated
07.05.2012 as it is not an ex-parte order
and was contested between the parties
litigating therein.

65. It was also emphasised by the
petitioner that application was moved in Final
Decree Case No.111 of 1980, while the order
has been passed on Final Decree Case No.33
of 1997. This Court finds that both the final
decree cases were going on together, though
formal order was not passed for consolidating
the two cases.