# RANI ALOKA DUDHORIA AND OTHERS v. GOUTAM DUDHORIA AND OTHERS

- **Citation:** [2009] 4 S.C.R. 204
- **Court:** Supreme Court of India
- **Decided:** 2009-03-05
- **Case number:** Civil Appeal No. 6692 of 2005
- **Bench:** S.B. Sinha, Cyriac Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rani-aloka-dudhoria-and-others-v-goutam-dudhoria-and-others-25633
- **Pages:** 49

## Headnote

Partition Act, 1893:
Sections 2, 3, 6 - Partition - Positive findings - Need for
c - Discussed.
Fraud and collusion between parties - Taking note of -
Not necessary to go into the questions of fraud and collision
in detail - Impugned judgments set aside - In view of the
peculiar facts and circumstances certain directions issued -
D Constitution of India, 1950-Article 142- CPC, O.XXI r. 72A(2).
In the present appeals against orders of High Court,
the questions involved relate to Sections 2, 3 and 6 of
Partition Act as also collusion and fraud in respect of
E partition of certain properties.
Allowing the appeals with certain directions, the
Court
HELD: 1. If the defendants-respondents intend to
invoke equity they must also do equity. As would appear
..
F from the record, apart from the order passed at the time
of passing of the preliminary decree dated 20th July, 1979
but also from the Minutes of the Joint Commissioner's
Meeting dated 30th July, 1983, application of the
respondents dated 16th August, 1983 and from the order
G dated 10th June, 1984, it is clear that the provisions of the
Partition Act shall apply. Neither any aforementioned
application was necessary nor any specific finding thereto
was imperative. Once it is held that the provisions of the
H
204
RANI ALOKA DUDHORIA AND OTHERS V.
205
GOUTAM DUDHORIAAND OTHERS
Partition Act are applicable, the court was bound to comply A
•
with the provisions thereof. If that is the legal principle,
on interpretation of the Partition Act as also from the
decision of this Court, it must be held that the
Commissioner of Partition and the High Court failed to
comply with the said provisions.[Para 25] [242-C-E]
B
K. Ramamurthi Iyer v. Raja V Rajeswara Rao, (1972) 2
SCC 721; Sathi Lakshmana KC v. PC Mohandas, 2008 (4)
--4
KLT 401; Smt. Rukmani w/o Late Ethraj v. Uday Kumar Sia
l
Late B. Venkatesalu !LR 2008 KAR 13; Ma!ati Ramchandra
Rauf (Mrs) v. Mahadevo Vasudeo Joshi, 1991 Supp (1) SCC c
321 and TS. Swaminathan v Official Receiver of West Tanjore,
AIR 1957 SC 577 - relied on.
Badri Narain Prasad Choudhary v. Nil Ratan Sarkar,
(1978) 3 sec 30 - held inapplicable.
D
~
2. Sub-section (1) of Section 6 of the Partition Act
mandatorily requires fixation of a reserved price. Parties
appear to have agreed thereto before the Commissioner
of Partition as would be clear from the respondents'
application dated 16
1
h August, 1983. Such a stand had also E
been taken by the parties before the High Court as would
appear from the order dated 11th June, 1984. It is of
significance to notice that respondents in their application
dated 22nd January, 1997 prayed for a direction from the
High Court to the Commissioner of Partition that "they F
may be given leave to sell the said properties without fixing
any reserve price" as also "that a liberty be given to the
Commissioner of Partition to permit the parties present
to purchase the said properties at their own valuation." If
the provisions of Section 6 of the Partition Act are G
...;
imperative in nature any such prayer could not have been
entertained. Such a leave/liberty had not been granted to
the Commissioner. The Commissioner was directed to
carry out of the auction sale in terms of the order dated
11
1
h June, 1984. It has been urg~d that the plaintiffsH
206
SUPREME COURT REPORTS
[2009] 4 S.C.R.
A appellants themselves agreed that the properties need not
be valued. However, from the order dated 11th June, 1984
it appears that with a view to avoid the costs and
expenditure to be incurred toward the appointment of the
valuer, it was stated that the valuation of the properties
8 need not be done by a valuer but the same would not
mean that the plaintiffs-respondents had themselves
agreed not to have any valuation of the properties at all.
The respondents, however, had even not denied or
disputed that he had also agreed to the same. [Para 26]
C [243-F-G; 244-A-F]
3. No application for modification of the order had
been prayed for. In any event the sai

## Text

_Characters 0–39,858 of 91,314. This is a partial read: ask again with offset=39858 for what follows._

[2009] 4 S.C.R. 204
A
RANI ALOKA DUDHORIA AND OTHERS
v
GOUTAM DUDHORIA AND OTHERS
Civil Appeal No. 6692 of 2005
B
MARCH 5, 2009
(S.B. SINHA AND CYRIAC JOSEPH, JJ.)
Partition Act, 1893:
Sections 2, 3, 6 - Partition - Positive findings - Need for
c - Discussed.
Fraud and collusion between parties - Taking note of -
Not necessary to go into the questions of fraud and collision
in detail - Impugned judgments set aside - In view of the
peculiar facts and circumstances certain directions issued -
D Constitution of India, 1950-Article 142- CPC, O.XXI r. 72A(2).
In the present appeals against orders of High Court,
the questions involved relate to Sections 2, 3 and 6 of
Partition Act as also collusion and fraud in respect of
E partition of certain properties.
Allowing the appeals with certain directions, the
Court
HELD: 1. If the defendants-respondents intend to
invoke equity they must also do equity. As would appear
..
F from the record, apart from the order passed at the time
of passing of the preliminary decree dated 20th July, 1979
but also from the Minutes of the Joint Commissioner's
Meeting dated 30th July, 1983, application of the
respondents dated 16th August, 1983 and from the order
G dated 10th June, 1984, it is clear that the provisions of the
Partition Act shall apply. Neither any aforementioned
application was necessary nor any specific finding thereto
was imperative. Once it is held that the provisions of the
H
204
RANI ALOKA DUDHORIA AND OTHERS V.
205
GOUTAM DUDHORIAAND OTHERS
Partition Act are applicable, the court was bound to comply A
•
with the provisions thereof. If that is the legal principle,
on interpretation of the Partition Act as also from the
decision of this Court, it must be held that the
Commissioner of Partition and the High Court failed to
comply with the said provisions.[Para 25] [242-C-E]
B
K. Ramamurthi Iyer v. Raja V Rajeswara Rao, (1972) 2
SCC 721; Sathi Lakshmana KC v. PC Mohandas, 2008 (4)
--4
KLT 401; Smt. Rukmani w/o Late Ethraj v. Uday Kumar Sia
l
Late B. Venkatesalu !LR 2008 KAR 13; Ma!ati Ramchandra
Rauf (Mrs) v. Mahadevo Vasudeo Joshi, 1991 Supp (1) SCC c
321 and TS. Swaminathan v Official Receiver of West Tanjore,
AIR 1957 SC 577 - relied on.
Badri Narain Prasad Choudhary v. Nil Ratan Sarkar,
(1978) 3 sec 30 - held inapplicable.
D
~
2. Sub-section (1) of Section 6 of the Partition Act
mandatorily requires fixation of a reserved price. Parties
appear to have agreed thereto before the Commissioner
of Partition as would be clear from the respondents'
application dated 16
1
h August, 1983. Such a stand had also E
been taken by the parties before the High Court as would
appear from the order dated 11th June, 1984. It is of
significance to notice that respondents in their application
dated 22nd January, 1997 prayed for a direction from the
High Court to the Commissioner of Partition that "they F
may be given leave to sell the said properties without fixing
any reserve price" as also "that a liberty be given to the
Commissioner of Partition to permit the parties present
to purchase the said properties at their own valuation." If
the provisions of Section 6 of the Partition Act are G
...;
imperative in nature any such prayer could not have been
entertained. Such a leave/liberty had not been granted to
the Commissioner. The Commissioner was directed to
carry out of the auction sale in terms of the order dated
11
1
h June, 1984. It has been urg~d that the plaintiffsH
206
SUPREME COURT REPORTS
[2009] 4 S.C.R.
A appellants themselves agreed that the properties need not
be valued. However, from the order dated 11th June, 1984
it appears that with a view to avoid the costs and
expenditure to be incurred toward the appointment of the
valuer, it was stated that the valuation of the properties
8 need not be done by a valuer but the same would not
mean that the plaintiffs-respondents had themselves
agreed not to have any valuation of the properties at all.
The respondents, however, had even not denied or
disputed that he had also agreed to the same. [Para 26]
C [243-F-G; 244-A-F]
3. No application for modification of the order had
been prayed for. In any event the said order could not have
been passed in supersession of the order dated 20th July,
1979. Valuation of a property of this nature even, in the
0 interest of justice, is to protect the rights of the parties.
Code of Civil Procedure provides therefor as would
appear from Order XXI Rule 72A(2). [Para 27] [245-F]
D.S. Chohan v. State Bank of Patia/a, (1997) 10 SCC 65
- referred to.
E
4. The application dated 20th January, 1997 was
moved after 13 years at the time when plaintiff No.1 was
unwell and plaintiff No.4 had to take her to Delhi for
treatment. No court proceeding had taken place for 13
years. A reserved price had not been fixed. Notices had
F not been given to all the parties. For the said purpose, the
Commissioner could not have devised his own
procedure. Sheema Dudhoria had shown an unusual
interest in attending the meetings allegedly without
instructions from other plaintiffs. Even Anand Agarwala,
G Advocate, appeared without notice. He did not raise any
objection in that regard and even accepted the cheque
after the expiry of 45 days wherefor no order of the court
or the Commissioner of Partition was obtained. [Paras 30,
31] [249-E-G]
H
Nedungadi Bank Ltd. v. Ezhima/a Agrl. Products 2003
•
•
RANI ALOKA DUDHORIA AND OTHERS V.
207
GOUTAM DUDHORIAAND OTHERS
(3) KLT 1011; Manila! Mohan/a/ Shah and Others v. Sardar A
Sayed Ahmed Sayed Mahmad and another AIR 1954 SC 349
and Laxmikant Ch hotel al Gupta v. State of Maharashtra, (2007)
5 sec 713 - relied on.
5. If any auction had taken place by fraud or collusion
the same is non est in the eyes of law. It is not suggested 8
that mere suspicion of fraud would amount to proof
thereof but the High Court should atleast have gone into
such a question. The Division Bench should also have
gone into this question. If it required proof, the question
should have been clearly answered by referring to the C
documents and other materials on record so as to enable
it to arrive at a finding that no fraud or collusion had taken
place. A finding to that effect one way or the other was
required to be arrived at. The Division Bench proceeded
on the basis that despite notices the plaintiffs did not D
participate in the proceeding without considering as to
whether their plea that they did not receive any notice was
correct or not. Even the Single Judge did not return any
finding. He did not frame any issue. Furthermore some
material irregularities had also taken place in the conduct E
of auction. Notice of clear 7 days had not been given to
the plaintiffs. Only 10% of the sale amount was received
by plaintiff No.6. Even that amount was in the name of
Rani Aloka Dudhoria. The cheque was deposited in the
joint account which was withdrawn by her alone. On one
F
occasion the High Court declined to confirm sale in favour
of the appellants when six months' time had been asked
for the purpose of deposit of the amount. However, such
a request on the part of plaintiff No.4-appellant had not
been acceded to. The defendants-respondents did not G
deposit the amount within 45 days of the date of auction.
It is stated that no payment had been made in respect of the
property 19, Netaji Subhash Road, Calcutta. The cheque was
made in the name of the Advocate on record. Although
initially the cheque was drawn in the name of plaintiff No.2,
H
208
SUPREME COURT REPORTS
[2009] 4 S.C.R.
A there was no such stipulation therefor. Any payment made
to Anand Aggarwala after the expiry of the stipulated period
of 45 days must be held to be in violation of the terms and
conditions stipulated in regard to the sale of the property
B
dated 8th May, 1977. [Para 32] [249-H; 250-A-H]
6. Fraud as is well known vitiates all solemn acts.
Suppression of a document, it is also trite, may amount
to fraud on the court. The effect of commission of fraud
must be taken note of. [Para 33] [251-D-E]
c
Behari Kun} Sahkari vas Samiti v. State of UP & Ors.
2008 (10) SCALE 551; Bank of India and Another v. Avinash
0. Mandivikar and Ors. (2005) 7 SCC 690 - referred to.
7. In view of the above, it is not necessary to go into
the questions of fraud and collusion in details. The
D impugned judgments of the High Courts are set aside.
E
However, keeping in view the peculiar facts and
circumstances of the case and in exercise of jurisdiction
under Article 142 of the Constitution of India, the following
directions are issued:
(a) The matter shall be fixed before the Single Judge
of the High Court under the heading "FOR BEING
MENTIONED" on 6.04.2009, on which date all the parties
shall remain present either personally or through their
learned Advocates. No separate notice therefor need be
F issued.
G
H
(b) The High Court shall pass an order as regards
the valuation of the properties, under the provisions of the
Partition Act.
(c) The High Court may either by itself or through the
Commissioner of Partition or any other Advocate/
Commissioner cause an inter party auction to be held on
a date to be fixed therefor.
(d) All amounts deposited or paid to the parties by
RANI ALOKA DUDHORIA AND OTHERS V.
209
GOUTAM DUDHORIA AND OTHERS
respondent No.2 and/or 3 shall be returned to them A
"
forthwith. If in the parties auction sale is not found to be
possible, the High Court may pass such other order/orders
as may deem fit and proper.[Para 34] [251-F-H; 252-A-C]
Case Law Reference
B
(1972) 2 sec 121
relied on
Para 23
2008 (4) KLT 401
relied on
Para 23
ILR 2008 KAR 13
relied on
Para 23
(1978) 3 sec 30
held inapplicable
c
Para 24
1991 Supp (1) sec 321 relied on
Para 25
AIR 1957 SC 577
relied on
Para 25
(1997) 10 sec 65
D
referred to
Para 27
~.
2003 (3) KLT 1011
relied on
Para 29
AIR 1954 SC 349
relied on
Para 29
(2007) 5 sec 113
relied on
Para 29
E
2008 (10) SCALE 551
referred to
Para 32
(2005) 1 sec 690
referred to
Para 32
•
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 6692
F
of 2005
From the Judgement and Order dated 20.08.2004 of the
Hon'ble Hight Court of Calcutta in Review Application being G.A.
No. 1186 of 2004 in APOT No. 71 of 1998.
WITH
G
y
Civil Appeal Nos. 6693-6694, 6697, 6695 & 6696 of 2005
Altaf Ahmed, Sunil Gupta, Manoj Goel, Shuvodeep Roy,
Gopal Verma, Brij Bhusan, Manoj Goel, Shuvodeep Roy, Gopal
H
210
SUPREME COURT REPORTS
[2009] 4 S.C.R.
A Verma, Suruchi Aggarwal, P.S. Narasimha, Hemant Sharma,
Ajay Kumar, Biju Mattan, Altaf Ahmed, Arijit Benerjee, Sandeep
Narain, Shri Narain (Mis. S. Narain & Co.), for appearing
parties.
B
S.B. SINHA, J.
1. 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.
2. Shorn of all unnecessary details the fact of the matter is
'.
c as under:
Azimganj Raj Estate belonged to Raja Bejoy Singh
Dudhoria. He died in 1933. He was survived by two sons namely
Kumar Chandra Singh Dudhoria (KCSD) and Kumar Padam
D 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
E 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
1
F 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
1,..
as C.S. No. 384 of 1977, wherein they admitted equal division
of certain immovable properties described in Schedule 'A' of
G the plaint and sought equal division thereof between the parties
in respect of properties mentioned in Schedule 'B of the plaint.
\'II
On or about 20.07.1979 a preliminary decree was passed
in the suit declaring shares in respect of Schedule 'B' properties
H - half: half between the plaintiffs and the defendants.
,__
RANI ALOKA DUDHORIAAND OTHERS V.
211
GOUTAM DUDHORIAAND OTHERS [S.B. SINHA, J.]
One Shri Nirmal Kumar Mitra, Advocate was appointed
A
~
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
B
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 c
leaving behind defendants No. 2 to 6 as his heirs and legal
representatives.
On or about 10.07.1982 an application was filed by the
defendants praying inter alia for the following directions to the
Commissioner :
D
" (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."
E
,
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
F
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
G
option will be given to the client of Mr. Anindya Mitra to
choose the first lot. It is recorded that such propertie_s 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
H
., .
212
SUPREME COURT REPORTS
[2009] 2 S. C.R.
A
the lottery. Such lottery will be held by the Commissioner
of partition within two months and one half from date.
y
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
B
party concerned. By consent of the parties there will also
be an order in 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 Mis Mukherjee & Biswas and
Mr. Ananda Agarwalla, Advocate of Mis Rajesh Khaitan &
c
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
D
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.
E
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."
~
F
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
G definite answer to his query as to how they propose to make
valuation of the properties for implementation of the aforesaid
r
consent order dated 1.09.1982.
An application was made for disniissal of Shri Nirmal
H Kumar Mitra as a Commissioner of Partition. While declining
RANI ALOKA DUDHORIAAND OTHERS V.
213
GOUTAM DUDHORIAAND OTHERS [S.8. SINHA, J.)
the said prayer, the High Court by its order dated 5.07.1983 A
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 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."
B
c
D
E
F
G
H
;
214
SUPREME COURT REPORTS
[2009] 4 S.C.R.
A
On or about 10.06.1983 defendants/respondents made
B
c
yet another application for direction, inter alia. praying that:
"a) Plaintiffs bf 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"
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
0
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
E 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.
F
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 '/:>: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
G encumbrances in respect of· the properties. After some
discussions, the Joint Commissioners of Partition inter alia
issued the following directions :
"(b) It is made clear that on 2nd August, 1983 the parties
will come prepared with their valuations in respect of the
H
three properties being premises No.91, Netaji Subhas
_,
RANI ALOKA DUDHORIAAND OTHERS V.
215
GOUTAM DUDHORIA AND OTHERS [S.B. SINHA, J.]
Road, Calcutta, Rajbari at Azimganj and Dharamsala at A
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 B
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." c
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.
D
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 notice of motion and the E
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 ih the application itself. In
this connection, we may notice that prayer (b) in the notice of
motion was:
F
"(b) Directions be given to the Joint Commissioner of
Partition regarding allotment of properties being premises
No.91, Netaji Subhas Road, Calcutta, Rajbati atAzimganj
and Dharamshala at Azimganj to offer the property to the
parties for being bid without valuation"
G
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,
H
A
B
c
D
E
F
G
216
SUPREME COURT REPORTS
[2009] 4 S.C.R.
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 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 Oudhoria 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."
3. We will advert to this question a little later.
4. It, however, appears that during the period 11.06.1984
and 7.07.1991, i.e., for a period of about seven years, no
H demarcation in respect of lot 'A' and lot 'B' properties had taken
RANI ALOKA DUDHORIAAND OTHERS V.
217
GOUTAM DUDHORIAAND OTHERS [S.B. SINHA, J.]
place. No step was taken by any of the parties to purchase the A
said properties, one way or the other. The question cropped up
again before the Commissioner, in a meeting held on 7.07.1991,
wherein on behalf of the appellants, Arnita, Appellant No. 4
participated.
5. It was agreed to by and between the parties that as in
B
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.
C
6. 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 0
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
E
decisions taken by us during the meeting held on ?th .;u1y,
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
F
is that we could not hold the said meeting. We do not
appreciate this kind of conduct of any of the parties. Parties
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 G
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
H
218
SUPREME COURT REPORTS
[2009] 4 S.C.R.
A
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."
7. Yet again for a period of about 2-3 years, steps were
B 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.
c
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
D division and disposal of the three properties was still hanging;
and the properties being in a dilapidated condition require
repairs and furthermore tax liabilities were mounting.
E
F
G
9. 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;
H
(ii)
In the event of either of the parties failing to attend
RANI ALOKA DUDHORIAAND OTHERS V.
219
GOUTAM DUDHORIAAND OTHERS [S.B. SINHA, J.]
the date to be fixed by the commissioner of partition
A
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.
B
(iv)
To complete allotment to the successful bidders within
a stipulated time as may be fixed by this Hon'ble
Court."
10. Sujit Sinha, J. on the said application by an order dated C
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.
D
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 w;'~in E
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 exparte if any of the parties chose not to appear.
F
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 and 6. According to the
appellants, plaintiff - appellant No. 1 herein was unwell and away G
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 Arnita, plaintiff No. 4. It, however, appears
that Shri A.P. Aggarwal appeared and sought for adjournment H
220
SUPREME COURT REPORTS
[2009] 4 S.C.R.
A
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. Arnita had shifted her
B residence from 48, Gariahat Road, Calcutta to 48/28, Gariahat
Road, Calcutta.
c
11. 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 Mis. Rajesh Khaitan
& Co. intimating him about holding of the meeting on 8.05. 1997.
0 According to the appellants, Mr. Anand 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.
E
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
F was to be conducted between the two groups stating :
G
"(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
H
same terms and conditions.
•
'
RANI ALOKA DUDHORIA AND OTHERS V.
221
GOUTAM DUDHORIA AND OTHERS [S.B. SINHA, J.]
(c)
The successful bidder will have the conveyance made A
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 B
consideration the other party s.hall hand over
possession along with all documents relating to title
or tenancies to the successful bidder."
The bid in respect of the aforesaid three properties was c
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 D
situate at 91, Netaji Subhash Road.
It is not in dispute that the Rajbari property was situate on
4 big has of land. It contained more than 100 rooms. The
Dharamshala property is a double storeyed building situate on
E
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:
F
"RAJ BARI AT AZIMGANJ:
Plaintiffs -x
Defendants No. 2 and 3 jointly
Rs.7,00,000/-
A cheque for Rs.35,000/- (Rupees thirty five thousand) G
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)
H
222
SUPREME COURT REPORTS
[2009] 4 S.C.R.
A
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
B
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,
C
Bhowanipur, Calcutta is handed over by Mr. G. Dudhoria,
the defendant No.2 to Rani Akola Dudhoria, the Plaintiff
No.1
D
E
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"
12. The appellants contend that the plaintiff No. 1 was not
and could not have been present on the said day in the High
F
Court as she was at Delhi. There is no denial to such assertion.
G
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
H properties. A meeting was held only on 30.06.1997 whence it
RANI ALOKA DUDHORIA AND OTHERS V.
223
GOUTAM DUDHORIAAND OTHERS [S.B. SINHA, J.]
was stated on behalf of the appellants that they were not in
A
-I
possession of any documents in respect of properties at
Azimganj although the plaintiffs had agreed to hand over all the
documents available with them.
13. On behalf of the defendants/respondents, a letter dated
B
nil addressed to Mr. Anand Agarwal was issued, stating :
"In this regard we also refer you to the meeting held at our
office on 30th June which was attended by you with your
client. As it has been represented by your clients through
you that they are not in possession of any paper pertaining c
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 D
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
E
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
F
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/-
G
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
H
A
B
224
SUPREME COURT REPORTS
[2009] 4 S.C.R.
Goutam Dudhoria on the Federal Bank Ltd.,
Bhowanipore for Rs. 3, 15,000/-"
It, however, stands admitted that the said cheques have
not b~en 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, Arnita Dudhoria wrote a letter dated
24.07.1997 to M/s. Rajesh Khaitan & Co. asking for copies of
C 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.
D
Rani Aloka Dudhoria is said to have gone back to Delhi
with Seema for treatment again on 28.07.1997. Allegedly, neither
Seema nor Arnita Dudhoria disclosed about the development
of the case to her. However, in the meantime, xerox copies of
the documents relating to 91 Netaji Subhash Road were
E forwarded to the defendants by the appellants in terms of a letter
dated 23.07.1997.
F
G
H
Thereafter Arnita alone made an application on
22.09.1997 for cancellation of the sale of the three properties,
stating :
"(1)1n 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 (Arnita) had shifted to a
separate new place.
(2) Arnita had left Calcutta to stay at Delhi for a year (199697) for medical treatment of her mother, Rani Aloka, P1 ."
It was prayed:
"b)
The purnorted sale of three properties namely
premises 110. 91, N.S. Road, Calcutta 700 001,
RANI ALOKA DUDHORIAAND OTHERS V.
225
GOUTAM DUDHORIAAND OTHERS [S.B. SINHA, J.]
Rajbati in Azirnganj and Dharamsala at Azimganj on
A
'
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 B
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."
c
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 Mis. Dipak Dey & D
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
E
application filed by Arnita, Goutam and Sidharth. Rani Aloka
instructed him to oppose the application for confirmation of sale
of the defendants and to support the application of Arnita.
~
On 2.12.1997, Arnita agreed to pay Rs. 20 lakhs in
response to the defendants' offer and sought for six months'
F
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.