# TARINIKAMAL PANDIT AND ORS v. PERFULLA KUMAR CHATTERJEE (DEAD) BY L.RS

- **Citation:** [1979] 3 S.C.R. 340
- **Court:** Supreme Court of India
- **Decided:** 1979-02-21
- **Case number:** Civil Appeal No. 1626 of 1973
- **Bench:** V. R. Krishna Iyer, P. S. Kailasam, A. D. KosHAL
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tarinikamal-pandit-and-ors-v-perfulla-kumar-chatterjee-dead-by-l-rs-7797
- **Pages:** 15

## Headnote

Plea, which is a pure question of lalv taken for the first time
may
be
permitted to be raised even at the last tier of appellate stage fn the Sr1preme
Court.
Suit against purchaser, non-n1aintainability on ground of purchase being
C
on behalf of plaintiff-Whether applies to an auction sale
by
a Receiver
appointed under Order 40 Rule 1 of the Civil Procedure Code--Scope of section 66 of the C.P.C. read wlih Order XX/ Rule 82 and Order XL Rule I.
"Purchase certified by the Court" in Section 66 refers only to 1he
ci~rti
ficate issued by the Court to the Purchaser under Order XXl Rule 94 C.P.C~.
D
The plaintiffs-appellants filed a suit
against
the
defendants-respondents
claiming their title on an unregistered document to the suit
property and
premises purchased by the latter through a sale by the Receiver under the
orders of the Court, on the ground that they were co-owners thereof by virtue
of the said document.
The trial conrt decreed the suit but th;?J High Court,
on appeal, accepted the appeal and dismissed the suit.
E
Allowing the appeal by certificate, the Court
F
G
HELD : 1. A pure question of la"'' on the facts and circumstances of a
case can be taken for the first time in the Supreme Court. [351 B-C]
(a) In the instant case, the plea that "as the title has vested in the respon·
dent by virtue of the confirmation of sale and the registered conveyance, the
plaintiffs-appellants cannot rely on an unregistered document" is a pure qucs·
tion of law not involving any investigation of the facts.
[35IC-E]
Yaswant Deorao Deshmukh v. Walchand Ramchand Kothari, [1950] S.C.R.
852 @ 861; Raia Sri Sailendra Narayan Bhanja Rao v. State of Orissa [1956J
S.C.R. 72; Seth Badri Prasad and Ors. v. Seth Nagarmal and Ors.,
[1959]
Suppl. I S.C.R. 769 @ 773; State of U.P. and Anr. v. Anand Swarup, (1974]
2 S.C.R. 188; T. A. Appanda Mudaliar v. State of Madras, A.I.R. 1976 S.C.
2459; applied.
2. In a suit against the purchaser on the ground that the purchase was
made on behalf of plaintiff or on behalf of some
one through
whom the
plaintiff c1aims, the plaintiff cannot succeed in displacing the title
of the -
defendant on the basis of the unregistered agreement. [352 C]
ff
On the pleadings, in the instant case, the question of law raised cannot
result in the suit being dismissed as
not maintainable. The claim of the
appellant as a real owner was not based on the unregistered agreement alone.
•
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TAiUN!KAMAL V. P. K. CHATTERJEE
.341
The suit was basied on the plea that the suit property and the premises werA
A
purchased in ownership (i.e.) on the claim that the appellants-plaintiffs were
the real owners of the property. [352 C-D]
G. H. C. Arifi v. Jadunath Mazumdar Bo.hadur,
Aferitin1e Electric Co. Ltd. v. General Dairies Ltd.,
ferred to.
A.LR.
1931
P.C. 79,
A.LR. 1937 PC 114; re3. Section 66 of the Civil Procedure Code prohibits any person claiming
that a purchase certified by the Court in such manner as may be prescribed iu,
favour of a person was made on behalf of the plaintiff. In order to invoke the
prohibition it is necessary to establish that the person against whom the suit
cannot be maintained is a person claiming title under a purchase certified by
the Court in such manner as may be prescrjbed. A certificate by the Court
for the purchase in the manner prescribed is. therefore. C'sscntial. [353 B-C]
The word "prescribed" is defined under section 2(16) of the Civil Procedure Code, as meaning prescribed by Rules. The provision as to grant of a
certificate by a court under a purchase is prescribed in Order 21. Order 21,
Rules 64 to 73 prescribe the procedure relating to sale generally while Rules
82 to 103 prescribe the procedHre relating to sale of immovable property.
When the Court makes an order confirming the aale under Order 21, Rule 92,
the sale becomes "'bgolute.
After the sale becomes absolute under
Rule 94
the Court shall grant a certificate specifying the properties sold and the name
of the person who at the time of the sale i! de

## Text

_Characters 0–39,955 of 41,828. This is a partial read: ask again with offset=39955 for what follows._

340
A
TARINIKAMAL PANDIT AND ORS.
v.
PERFULLA KUMAR CHATTERJEE (DEAD) BY L.RS.
February 21, 1979
I
[V. R. KRISHNA IYER, P. S. KAILASAM AND A. D. KosHAL, JJ.]
Plea, which is a pure question of lalv taken for the first time
may
be
permitted to be raised even at the last tier of appellate stage fn the Sr1preme
Court.
Suit against purchaser, non-n1aintainability on ground of purchase being
C
on behalf of plaintiff-Whether applies to an auction sale
by
a Receiver
appointed under Order 40 Rule 1 of the Civil Procedure Code--Scope of section 66 of the C.P.C. read wlih Order XX/ Rule 82 and Order XL Rule I.
"Purchase certified by the Court" in Section 66 refers only to 1he
ci~rti
ficate issued by the Court to the Purchaser under Order XXl Rule 94 C.P.C~.
D
The plaintiffs-appellants filed a suit
against
the
defendants-respondents
claiming their title on an unregistered document to the suit
property and
premises purchased by the latter through a sale by the Receiver under the
orders of the Court, on the ground that they were co-owners thereof by virtue
of the said document.
The trial conrt decreed the suit but th;?J High Court,
on appeal, accepted the appeal and dismissed the suit.
E
Allowing the appeal by certificate, the Court
F
G
HELD : 1. A pure question of la"'' on the facts and circumstances of a
case can be taken for the first time in the Supreme Court. [351 B-C]
(a) In the instant case, the plea that "as the title has vested in the respon·
dent by virtue of the confirmation of sale and the registered conveyance, the
plaintiffs-appellants cannot rely on an unregistered document" is a pure qucs·
tion of law not involving any investigation of the facts.
[35IC-E]
Yaswant Deorao Deshmukh v. Walchand Ramchand Kothari, [1950] S.C.R.
852 @ 861; Raia Sri Sailendra Narayan Bhanja Rao v. State of Orissa [1956J
S.C.R. 72; Seth Badri Prasad and Ors. v. Seth Nagarmal and Ors.,
[1959]
Suppl. I S.C.R. 769 @ 773; State of U.P. and Anr. v. Anand Swarup, (1974]
2 S.C.R. 188; T. A. Appanda Mudaliar v. State of Madras, A.I.R. 1976 S.C.
2459; applied.
2. In a suit against the purchaser on the ground that the purchase was
made on behalf of plaintiff or on behalf of some
one through
whom the
plaintiff c1aims, the plaintiff cannot succeed in displacing the title
of the -
defendant on the basis of the unregistered agreement. [352 C]
ff
On the pleadings, in the instant case, the question of law raised cannot
result in the suit being dismissed as
not maintainable. The claim of the
appellant as a real owner was not based on the unregistered agreement alone.
•
•
TAiUN!KAMAL V. P. K. CHATTERJEE
.341
The suit was basied on the plea that the suit property and the premises werA
A
purchased in ownership (i.e.) on the claim that the appellants-plaintiffs were
the real owners of the property. [352 C-D]
G. H. C. Arifi v. Jadunath Mazumdar Bo.hadur,
Aferitin1e Electric Co. Ltd. v. General Dairies Ltd.,
ferred to.
A.LR.
1931
P.C. 79,
A.LR. 1937 PC 114; re3. Section 66 of the Civil Procedure Code prohibits any person claiming
that a purchase certified by the Court in such manner as may be prescribed iu,
favour of a person was made on behalf of the plaintiff. In order to invoke the
prohibition it is necessary to establish that the person against whom the suit
cannot be maintained is a person claiming title under a purchase certified by
the Court in such manner as may be prescrjbed. A certificate by the Court
for the purchase in the manner prescribed is. therefore. C'sscntial. [353 B-C]
The word "prescribed" is defined under section 2(16) of the Civil Procedure Code, as meaning prescribed by Rules. The provision as to grant of a
certificate by a court under a purchase is prescribed in Order 21. Order 21,
Rules 64 to 73 prescribe the procedure relating to sale generally while Rules
82 to 103 prescribe the procedHre relating to sale of immovable property.
When the Court makes an order confirming the aale under Order 21, Rule 92,
the sale becomes "'bgolute.
After the sale becomes absolute under
Rule 94
the Court shall grant a certificate specifying the properties sold and the name
of the person who at the time of the sale i! declared to be the
purchaser.
Such certificate is required to bear the day and the date on which the sale
became absolute. (353 C-E]
The certificates by the Court referred to in Section 66 C.P.C. is a certificate
under Order 21, Rule 94. The procedure envisaged for sale generally
and
sale of ·immovable property under Order 21
i~ sale by a public auction. S!le
by a Court through the Receiver appointed by
Court is not contemplated
under these provisions. In a sale by a Receiver a certificate to the purchaser
under Order 21, Rule 94,
i~ not given by the Court. Therefore, the prohibition under Sec. 66 cannot be invoked in the case of a sale by the Receiver.
A Receiver is appointed. under Order 40 Rule 1, and a property can be sold'
by the Receiver on the directions of the Court even by private negotiations.
The requirement of Sec. 66 of the C.P.C.,
i~ a certificate by the Court as
prescribed. Since Section 66 is not applicable to sales by Receiver it is not
necessary to go into the question whether a ~ale by the Receiver under the
Rules of the Calcutta High Court v;ould come within the purview of s. 66.
Section 66 refers to execution of sales only and has 110 application to a sale
held by a Receiver~ In this case, the conveyance Ex. 5 was in accordance with
the original side Rule of the High Court. [353 E-G]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1626 of 1973.
Appeal by Special Leave from the Judgment and Order dated
16-9-1971 of the Calcutta High Court in Appeal from Original Decree
No. 209/66.
S. N. Andley, K. C. Sharma, Prem Malhotra and Uma Datta for the
appellant.
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342
SUPREME COURT REPORTS
(1979] 3 s.c.I:.
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L. N. Sinha, G. S. Chatterjee, D. N. Mukherjee and D. P. Mukherjee
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for the Respondent.
The Judgment and Order of the Court was delivered by
KAILASAM, J.-This appeal is by plaintiff 1, legal representatives of
plaintiff 2 and plaintiff 3 by certificate granted by the High Court
of
Calcutta against its judgment dismissing the suit.
The suit was filed by the plaintiffs for the declaration of each of the
plaintiffs' title to the extent of I/4th share each and in all 3/4th for all
the plaintiffs of the suit property and the premises with the findings that
the suit property and the premises were purchased in co-ownership awarding the plaintiffs and the defendants equal I/4th share each in terms of
the agreement dated 2.4.1960 and for partition of the suit property and
premises in equal 1/4th share each and for a decree of Rs. 45,000 with
further accruals by way of receipt of further rent till full realisation of
the claim. In the alternative a decree for accounts of the dissolvr.d
partnership on declaration of dissolution of the same and partition of
the suit property and premises in equal 1/4th share to each of the plaintiffs and the defe'1dant by metes and bounds.
The defendant in his written statement denied the claim of the plaintiff and contended that the suit property was ne.ver purchased in coownership or that the plaintiffs were entitled to 3 /4th share. He contended that plaintiffs 2 and 3 advanced Rs. 10,000 each as loan and that
they had no claim to the property he having purchased the property in
court auction as the absolute owner.
The trial court decreed the suit.
The defendant preferred
an
appeal to the High Court which accepted the appeal and dismissed the
suit.
The facts of the case may be shortly stated. The suit property in
Darjeeling belonged to one Harbhajan Singh Wesal.
He executed a
mortgage in favour of the Calcutta National Bank Ltd.
The bank instituted a suit against Harbhajan Singh Wesal for recovery of Rs.
l ,82,4CJ3-11-3 and for enforcement of the mortgage. Pending suit the
Calcutta National Bank was wound up and the High Court of Calcutta
passed a decree against Harbhajan Singh and appointed the Official
Liquidator of the Calcntta National Bank as Receiver of the mortgaged property including the suit properties. On 5-9-1959 a final decree
was passed directing the sale of the mortgaged property including the
suit properties at Darjeeling by public auction subject to confirmation
by the Court.
The defendant Prafulla Kumar Chatterjee was interested in buying
the property in Darjeeling. He was negotiating with the Receiver for
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TARINIKAMAL v. P. K. CHATTERJEE (Kailasam, J.)
343
the purchase of Darjeeling properties.
On 10.6.1959 he received a
letter from D. N. Mukherjee Advocate advising him to give an offer to
the Rece\yer and on 22:6.59 the defendant obtained an engineering estim_ate and made an offer to the Receiver to purchase the property
for
.Rs. 32,000.
On 20.11.59 an advertisement appeared in the newspaper
by P.W. 1, K. K. l{shetry, Solicitor of the bank, for auction of the suit
property.
Tue property was auctioned on 15th December, 1959 and
the defendant offered the highest bid for Rs. 30,000.
On the same day
the defendant deposited Rs. 7,500/-. While the sale
was awaiting
confirmation by the High Court a higher offer was made by one Baidyanath Ga"i and thereupon the defendant offered Rs. 40,000 which was accepted by the court and the sale in favour of the defendant was confirmed
by the the High Court for a sum of Rs. 40,000 tm 19.1.60. The defendant
deposited a sum of Rs. 2,500 in addition to Rs. 7,500 that had already
be~n .::!...-posited.
The t.1e[cndant \Vas granted,, three months' time for
depositing the balance sum of Rs. 30,000. Tue defendant did not have
funds to pay the bqlancc of Rs. 30,000 and had to raise the amount.
On 2.4.1960 an agreement was entered into between the three plaintiffs and the defendant.
The suit by the plaintiffs is mainly based on
this agreement P-45 dated 2.4.60.
Tue agreement is signed by
the
three plaintiffs as well as by the defendant.
·. According to·the recital
in the agreement the parties after learning from the notification in the
newspaper of the sale of the suit proPerty agreed between them·selves to
call the bid jointly in co-o\vnership in the nanie of the defendant and
that in pursuance of the agreement the defendant was deputed to call
the bid. Tue agreement further states that accordingly the defendant
w1s. s,nt to Calcutta and the bid at the auctiort which was finally knocked
down on 19.1.60 for a sum of Rs. 40,000 in the name of the defendant.·
Tue agreement also provided that the plaintiffs and the defendants
would be entitled to equal shares in the property. Another term of the
agreeIIlent provided that the conveyance shall be drawn in the joint
names ~f the parties by obtaining kave from the High Court.
· On 7.4.60 the defendant executed two receipts Exs. 22 and 22A in
'favour of the second and the third plaintiffs respectively.
It is recited
in the receipt that the defendant received a sum of Rs. 10,000 as
the
share of the purchase price of the property sold in public auction
by
the Official Liquidator in pursuance of the agreement amongst themselves. Though the receipt was typed in Darjeeling on 7.4.60 the defendant signed the receipt at Calcutta on 11-4-60;
In the meantime
en 8.4.60 the ddendant filed an application in the High Court
of Calcutta praying that the time for completion of the sale be extended
by three. months from 19-4-60 and the conveyance be executed in
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SUPREME COURT REPORTS
[1979] 3 S.C.R.
favour of the three plaintiffs and himself. On 11-4-60
a sum of
Rs. 30,000 was paid to M. R. Kshetry. The request for the conveyance
to be made in favour of the three plaintiffs and the defendant was
given up and the court directed the execution of the conveyance in
favour of the defendant alone. On 17-6-60.a conveyance was executed
by the Registrar of the High Court and the Receiver in favwr of the
defendant alone in pursuance of the order of the court dated 11-4-60.
On 2-1-61 the plaintiffs served a notice on the defendant calling upon
him to partition the property and deliver their shares
and
render
accounts. On 3-6-61 the plaint in the suit was filed.
The plaintiffs apart from oral evidence very strongly rely on three
documents to prove that they are joint owners and are entitled to 3 /4th
share in the suit property.
The first document is the agreement between the parties dated 2.4.60.
The second are two receipts dated
7.4.60 is'sued by the defendant in favour of plaintiffs 2 and 3.
The third
document is the application filed by the defendant on 8-4-60 in the High
Court praying that the conveyance may be effected in favour of the three
plaintiffs and himself.
The case for the plaintiffs is that between 20th
and 23rd November, 1959 there was an advertisement in the newspapers
by the Official Receiver announcing the sale of the suit property. According to the plaintiffs the three plaintiffs and the defendant mutually agreed
to call the bid jointly in co-ownership in the name of the defendant and
to purchase the property in equal share·s contributing equolly foe bid
money and the other costs as might be. incurred for the conveyance of
the property.
It was further agreed that the plaintiffs and defendaot
would have equal share in the property. According to the plaintiffs in
pursuance of the agreement the. defendant was sent to Calcutta where he
bid on 15.12.59 for Rs. 30,000 and the bid was confirmed by the High
Court on 19.1.60 for a sum of Rs. 40,000.
Out of the bid money a
sum of Rs. 7,500 was paid to the Receiver on 15.12.59 and a sum of
Rs. '.!,500 on 19-1-60 and the balance of Rs. 30,000 on 11-4-60. In
the meantime it is stated that the plaintiffs and the defendants considered
i.t advisable to have the verbal agreement between them reduced to writing and thus the agreement dated 2.4.60 came into existence.
After the
full bid money was paid, the plaintiffs contributing equally, a deed of
conveyance was executed on 17-6-60 and registered at Darjeeling.
According to the mutual agreement the parties were entitled· as cosharers to enjoy and occupy the suit property in co-ownership and
were also e»citled to income from them. It was further agre<d that
the defendant would manage thei joint property for the co-owners of
the property and the defendant would realise the .rents for and on
behalf of the parties with liability to pay the respective shares
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TARINIKAMAL v. P. K. CHATTERJEE (Kailasam, !.)
345
to each of the plaintiffs.
The defendant, on the other hand, submitted
that he was trying to purchase the suit property from the previous owner
Harbhajan Singh by private negotiations before the proceeding was started for auction sale. The defendants efforts to purchase the property
from the owner proved abortive and he decided to purchase the snit property in the auction sale when the property was advertised for sale. As
the defendant was not acquainted with the procedure of court's sale he
approached the first plaintiff for legal service and the first plaintiff gave
directions as to how the defendant 'should proceed.
The defendant
denied that he was sent by the plaintiffs to Calcutta for calling the bid.
According to him he went of his own accord, attended the public auction
on 15.12.59 and offered Rs. 30,000 for purchasing the property and
when the bid was accepted he paid Rs. 7,500 and that money belonged
to him alone. Eventually, the sale was confirmed in favour of the defendant for Rs. 40,.000 and he paid a sum of Rs. 2,500 in court to make up
Rs. 10,000 i.e. one-fourth of the bid-amount all by himself.
As the
defendant had to pay the balance of Rs. 30,000 and as he was in short
of funds he approached the first plaintiff who was his lawyer and asked
for his advice. As the time for payment of balance amount was fast approaching the defendant frantically tried to find a person who could advance him temporary loan of Rs. 20,000 which amount he needed for
completing the purchase.
As he was not successful he. requested the
first plaintiff to find from amongst his clients persons who could
make
temporary advance of the amount.
According to the defendant in the
first week of April, 1960 the first plaintiff informed the defendant that
two of his clients, namely plaintiff Nos. 2 and 3, were agreeable to advanoe the requisite amount but in view of the provisions of Bengal Money
Lenders' Act they were not willing to advance the amount unles·s some
sort of safeguards were provided for and the transaction was not described as loan.
The first plaintiff drafted a document in the form of an
agreement and the defendant signed it under the advice. and suggestion
of the first plaintiff on the understanding that the document was not intended to be acted upon and was only to remain a·s a security for the
loan and that the recitals in the said document do not represent the
real nature of the transaction.
The defendant admitted that plaintiffs
2 and 3 advanced to the defendant a sum of Rs. 110,000 each by way of
.loan and the defendant had to sign in their favour the documents acknowledging the receipt of the loan.
The defendant denied that
the
plaintiffs and the defendant contributed equally for payment of the bid
money or in defraying the incidental costs in equal shares.
The defendant asserted that he alone paid the entire bid money and bore all the
incidental expenses and that there was never any co-ownership or coA
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SUPREME COURT REPORTS
[1979] 3 S.C.R.
partnership. He submitted that as the conveyance was executed exclusively in his favour the plaintiffs had no right to the property.
The plaintiffs have sought to prove that the parties after learning from
the notification in the newspaper of the sale of the property agreed betwem themselves to call the bid jointly in co-ownership in the name of
the defendant and in pursuance of that agreement the defendant paid
the deposit Further it is the plaintiffs' case that in pursuance of the
agreement the defendant was sent to Calcutta where he bid at the auc;.
tion which was finally knocked down for the benefit of all. The plaintiffs' claim that they contributed I/4th of the price of the property and
the expenses i.e. Rs. 13,500 each.
Further, it was, contended by the
plaintiffs that the bid by the defendant was for the benefit of the three
plaintiffs and the defendant and that it was agreed that the conveyance
should also be in favour of all of them.
It is seen from the evidence that the defendant was interested in
buying the property alone before the advertisement appeared in the
newspapers on 20-11-59 and 23-11-59. The defendant received Ex. V
a letter dated 10-6-59 from D. N. Mukherjee advocate, advising him to
give an offer to the Receiver so that he can place the matter to the court
for an order for sale by private negotiation.
Soon after, the defendant
obtained an engineering estimate of the value of the property under Ex.
M and in accordance with the valuation wrote Ex. L on 22 .6.59 to K. K.
Kshctry offering Rs. 32,000 for the property. On 15-12-79 the defendant went to Calcutta by himself and made a bid for Rs. 30,000 and deposited Rs. 7,500 of his money.
The plaintiffs admit that the entire deposit was, made by the defendant bnt pleaded that it was agreed that on
accounts being taken the expenses will be shared by the plaintiffs.
Due
to a third party making a higher offer the defendant had to raise
the
bid for Rs. 40,000.
It is also not in dispute that the defendant
by
himself paid Rs. 2,500 over Rs. 7,500 already paid to make l/4th of
the bid amount.
The bid for Rs. 40,000 was made by the defendant
alone.
On behalf of the plaintiffs it is 'stated that 2 or 3 days after the
advertisement appeared the defendant went to the first plaintiff and told
him that he did not have sufficient funds and requested the first plaintiff
to join him to purchase the property and that 2 or 3 days later plaintiff
3 and son of plaintiff 2 came' to first plaintiff and expressed their desire
to purchase the property and the plaintiff advised them to purchase the
property jointly with the defendant in shares.
Plaintiff 3, Daluram
Agarwala, deposing as P.W. 5 does not support this case. In crossexamination P.W. 5 stated that on November 24 or 25, 1959 he and one
N. K. Aggarwala, who is the son of plaintiff No. 2, went to see thEl first
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TARINJKAMAL v. P. K. CHATTERJEE (Kailasam, !.)
3 J 7
plaintiff. It was decided among them that the property would be pur ..
. chased in the names of all the four of them, the plaintiffs and the defendant.
He would further say that the defendant on return from Calcutta
towards the end of December, 1959 stated that the property had been
purchased in the names of three plaintiffs and the defendant.
It is thus
the case of P.W. 5 that the defendant was sent by all the three plaintiffs
to bid on their behalf and that the defendant bid on behalf of all of them.
P.W. 7, the son of the second plaintiff, would state that it was agreed that
the property would be bought in the name of the defendant and that
there was no talk that it would be purchased in the names of all the four
of them. It is rather inexplicable as to how plaintiffs 2 and 3 who wanted to buy the property separately for themselves agreed to purchase
jointly for the benefit of all of them.
It i's also difficult to accept the
plea that palintiffs 2 and 3 went to the first plaintiff who is an advocate
and there agreed to purchase the property in equal shares between the
defendant, first plaintiff and themselves.
The second plaintiff
had
an office in Calcutta and the Calcutta office had a Munim and three other
partners in whom they had complete confidence.
In the circumstances
it is strange that they wanted the first plaintiff to be a co-'sharer so that
he could attend to all the legal questions.
There is no explanation as
to why plaintiffs 2 and 3 who were independant businessmen would join
to purchase the property.
The e.xplanation that the agreement was
arrived at to keep the bid low is purile. The evidence discloses that the
plaintiffs were taking active part in the transaction after 2.4.1960 while
between November, 1959 when the advertisement appeared and the date
of agreement, there was comparative quiet, which fact probablises that
the plaintiffs were not taking any part in the activities of the defendant
regarding the bid in the court auction of the property.
The dealings
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of plaintiffs 2 and 3 show that they were dealing with the defendant at
~ arms' length insisting on passing of a receipt for their payment of Rs.
20,000 and accompanying the defendant and paying the money to the
Receiver themselves. It is highly improbable that they would have
deputed the first defendant to go and bid on their behalf. There is no
explanation as to why their share of the bid of Rs. 30,000 or the subsequent bid for Rs. 40,000 was not paid by them.
The story that before
the defendant bid for the property for Rs. 30,000 there was an agreement between the plaintiffs and the defendant that the bid should be on
behalf of all of them cannot be accepted .
)
. The next questio~ ~at arises is whether the plaintiffs have proved
their case th.at pla.mti!Is 1, 2 and 3 each of them paid Rs. 13,500,
Rs. 10,000 bemg their share of the bid money and Rs. 3,500 towards
expenses. The two receipts! Exs. 22 and 22A are acknowledgements by
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SUPREME COURT REPORTS
[1979] 3 s.c.R.
the defendant of receipt of Rs. 1 o;ooo from each of the plaintiffs 2 and 3.
The defendant admits that he did receive Rs. 10,0-00 from each of the
plaintiffs 2 and 3 bnt his case is that it is a loan.
There can be no doubt
that •he defendant was paid Rs. 10,000 by each of the plaintiffs 2 and 3.
The case of the plaintiffs is that they paid in addition Rs. 3,500 each
towards expenses.
There is no receipt for this extra payment.
But
the plea on behalf of plaintiffs 2 and 3 is that the son of the second plaintiff paid Rs. 27,000 to the Receiver Kshetry personally representing the
share of plaintiffs 2 and 3 of Rs. 13,500 each.
We, find it difficult to
accept the story for plaintiffs 2 and. 3 were reluctant to part with
Rs. 10,000 each without receipt even though the first plaintiff assured
that there was no need for a receipt.
In fact :he money was not parted
with by them till the second plaintiff's son accompanied the defendant
to Calcutta and paid it in person to the Receiver.
In such circumstances, it is not possible to accept the plea of plaintiffs 2 and 3 that they
did not insist on a receipt for payment of Rs. 3,500 each.
In this connection, the evidence of P.W. 1 Kshetry that out of the sum of Rs. :.0,000
paid in cash Rs. 27,000 was handed over to him by Narendra
Kumar
Aggarwal and only the balance was paid by the defendant was relied on
by the plaintiffs to show that the share of plaintiffs 2 and 3 of Rs. 13,500
' each was paid.
According to the defendant second plaintiff's
son
Narendra gave him Rs. 20,000 and he had Rs. 10,000 and he and Narendra counted Rs. 30,000 and handed over the sum of Rs. 30,C-OO
to Kshetry, in the presence of the Judge.
On the evidence th·~ High
Court came to lhc conclusion that the money was counted by Ne.rendra
and the defendant before it was paid to Kshetry and if Narendra handed
to the Solicitor a sum of Rs. 2 7 ,000 after counting, the inferen:e <hat
Rs. 27,000 belonged to plaintiffs is not justified.
We agree with the
view taken by the High Court.
We therefore find that plaintiffs 2 and
3 have not proved that they paid Rs. 3,500 each towards the expenses.
The evidence relating to payment by the first plaintiff is even worse. According to the first plaintiff, who examined himself as P.W. 2, on 2nd
April, 1960 when the agreement was signed he paid Rs. 10,000 as his
share of purchase price and Rs. 2,500 towards cost, Rs. 12,500 in all
in cash to the defendant.
He did not consider it necessary to take
a
receipt in view of the signed agreement which he thought was sufficient acknowledgment of the liability by the defendant. The first plaintiff was cross-examined about the availability of the sum with him.
He admitted that he had no accounts and that the payment of
Rs .. 12.500 is not recorded any where. The first plaintiff would add
that he paid another Rs. 1,000 by issuing a cheque in favbur of the
third plaintiff with a direction that the third plaintiff should pay t~e
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"um of Rs. 1,000 to the defendant towards expenses. A cheque was
no doubt drawn by the first plaintiff in favour of the third plaintiff
but there is nothing to indicate that this amount was to be paid to
*''" dcfemiant. The third plaintiff did not obtain any receipt from the
defendant. The High Court rightly rejected the plea on behalf of the
first plaintiff that the proceeds of the cheque were paid to the defendant. On the record there is hardly any acceptable evidence for establishing the payment of Rs. 13,500 by the first plaintiff to the defendant
or the paymc;1t of Rs. 3,500 each by the plaintiffs 2 and 3 to the
defendant.
A
There is no explanation by the plaintiffs as to how the conveyance
came to be registered in the name of the defendant only when the
agreement was that it should be taken in the name of the three plaintiffs ~md the dclcnc1ant jointly.
The agreement contemplated taking
of the conve:,·ancc in the names of the three plaintiffs and the defendant
and in fact the application made by the defendant to the court prayed
that the sale be confirmed in favour of the three plaintiffs
ancj
the
defendant and the conveyance issued in their joint names.
But the
applica1 ion for confirmation in the joint names was not pre>~'cd and the
conveyance was ultimately made in favour of the first defendant alone.
There is no explanation as to why the plaintiffs did not insist on the
bid being confirmed in the names of all of them and the conveyance
issued in their joint names. Equally on the side of the defendant there
is no explamtion as to why he signed the agreement which povided
tbat t~e sale should be for the benefit of all of them arnl as lo why
he applied to the court praying for the confirmation of the sale in
favour of all of them.
Neither has the defendant denied receipt of
Rs. 10,000 from each of the plaintiffs 2 and 3. There is no provision
for payment of interest by the defendant to plaintiffs 2 and 3 for the
sums advanced. If it had been loan simpliciter there could be no explanation for absence of provision for payment of interest. On a close
analysis of the evidence led on behalf of the plaintiffs and the defendant
we agree with the High Court that neither the version of the plaintiffs
nor that of the defendant discloses the entire troth. The conclusion
we arrive at on the evidence is that the plaintiffs have failed to prove
any prior agreement before the defendant made his bids for Rs. 30,000
•nd later for Rs. 40,000 and paid the deposits amounting to Rs. 10,000
by himself. Plaintiffs 2 and 3 have failed to prove that they have paid
Rs. 3,500 each towards expenses in addition to payment of Rs. 10,000
by each of them which is admitted. The first plaintiff has totally faiied
in proving that he had paid any part of the consideration. On the side
of the defendant there is no explanation as to why he subscribed to the
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agreement agreeing to share the property along with the three plaintiffs
and for his applying to the court for confirmation of the sale in favour
of all of them.
Neither is there any explanation by him as to why
plaintiffs 2 .md 3 advanced Rs. 20,000 without interest.
Taking ail the circumstances into account we feel the irresistible inn
ference is that the defendant having made the bid by himself later on
found himself badly in need of money to pay the· balance of the bid
amount. In trying to find the money he sought the help of the plaintiffs and received paymeut of Rs. 20,000 from plaintiffs 2 and 3. The
crucial question is whether this amount was received merely as a loan
as contended by the defendant or given on the agreement that plainC
tiffs 2 and 3 should be entitled to a share each. The conduct of the
defendant shows that while he badly needed the money he was not
willing to share the property with them for the amount. Equally plaintiffs 2 and 3 wanted the share in the property for the money advanced
by them. It is clear that the money was not advanced as a loan. It
may be that the plaintiffs 2 and 3 were insisting on a hard bargain but
D
it cannot be denied in the circumstances in which the defcridar.t was
placed that he had accepted it. The condition insisted upon by plaintiffs 2 and 3 might not have been fair but the agreement arrived at in
the circumstances cannot be said to be due to undue influence. The
relief to whkh the plaintiffs are entitled to under the agreement cannot
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be denied. The High Court after observing that plaintiffs 2 and 3 whD'
are businessmen would not have Jent a large sum of money without
charging interest and that it is not likely that the plaintiffs would have
been so chantable towards the defendant who was a stranger was of
the view that it was not necessary to examine the defendant's financial
position and record a finding on the point for the purpose of appeal.
While holding that the defendant's version also does not disclose the
entire truth the High Court held that that would not help the plaintiffs
who have to prove the case they set up in the plaint. On the short
ground that the agreement dated 2nd April, 1960 does not reflect the
true nature of the transaction the High Court held that the suit must
fail.
We are of the view that if the amount was not advanced as a
loan but paid towards acquiring of a share in the property the relief
cannot be denied. In the circumstances, the plaintiff" 2 and
3 are
entitled to I/4th share each in the property on their payment of their
share of the expenses i.e. Rs. 3,500 each. The defendant has been in
possession of the property ever since the purchase and the plaintiffs
are entitled to their share of the rents collected by the defendant. We
estimate the share of the rents collected for each of the plamtiffs at
Rs. 25,000. The result is the appeal is allowed to the extent that there
will be a decree for partition and separate possession of 1I4th share
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TARINIKAMAL v. P. K."CHATTERJEE (Kaila.mm, J.)
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each of plaintiffs 2 and 3. Plaintiffs 2 and 3 will pay to the defendant
R~. 3,500 each and interest at 10 per cent per annum from the date of
the conveyance and receive Rs. 25,000 each from the defendant towards
their share of the rent collected upto date. The first plaintiff will not
be entitled to any relief and the suit so far as he is concerned is dismissed.
There will be no· order as to costs.
Before we conclude we will shortly refer to the question of law
raised by Mr. L. N. Sinha on behalf of the defendant. He submitted
that as the title in the property vested in the defendant by confirmation
of the court sale and later by a registered conveyance, the plaintiffs
cannot seek relief on the unregistered agreement Ex. 4 as conveying
any title to them. This point was not taken in any of the courts below
but learned counsel submitted that because it is a pure question of law
not involving any investigation of facts and as it goes to the root of the
matter the court may permit the point to be taken. In support of his
contention that a pure question of law in the circumstances can be
taken for the first time in this Court he relied on the decisions of this
Court. in
Yaswant Deorao Deshmukh v.
Walchand Ramchand
Kothari('), Raja Sri Sailendra Narayan Bhanja Dea v. The State of
Orissa('), Seth Badri Prasad and Others v. Seth Nagarmal and
Others('), State of Uttar Pradesh & Anr. v. Anand Swarup(4 )
and T. G. Appanda Mudaliar v. State of Madras(•). As the point
raised is a pure question of law not involving any investigation of the
facts, we permitted the learned counsel to raise the question. The plea
of the learned counsel is that as the title has vested in him by virtue of
the confirmotion of the sale and the registered conveyance the plaintiff
cannot rely on the unregistered agreement. In support of his contention the learned counsel relied on the decision of the Privy Council in
G. H. C. Arif] v. Jadunath Majumdar Bahadur(•) and Maritime Electric Co. Ltd. v. General Dairies Ltd. (7). In G. H. C. Arif] v. Jadunath Majumdar Bahadur it was doubted whether the English equitable
doctrine can be applied so as to modify the effect of an Indian statute.
The court expressed itself thus : " .... but that an English equitable
doctrine affecting the provisions of an English statute relating to the
right to sue upon a contract, should be applied by analogy to such a
'statute as the Transfer of Property Act and with such a result as to
create without any writing an interest which the statute says can only
(I) [1950] S.C.R. 852 at p. 861
(2) [1956] S.C.R. 72
(3) [1959] Supp. (I) S.C.R. 769 at 773
(4) [1974] 2 S.C.R. 188
(5) A.I.R. 1976 S.C. 2450
(6) A.LR. 1931 P.C. 79
(7) A.LR. 1937 P.C. 114
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be created by means of a registered instrument, appears to their Lordships, in the absence of some binding authority to that effect, to be
impossible".
The Court further observed : "Their Lordships do not
understand the dicta to mean that equity will hold people bound as if
a contract existed, where no contract was in fact made : nor do they
understand them to mean that equity can override the provisions of a
statute and (where no registered document exists and no registrable
document can be· procured) confer upon a person a right which the
statute enacts shall be conferred only by a registered instrument." In
Meritime Electric Co. Ltd. v. General Dairies Ltd. (supra) the court
observed : " .... where as here the statute imposes a duty of a positivo
kind, not avoidable by the performance of any formality, for the doing
d the very act which the plaintiff seeks to do, it is not open to the
defendant tCJ set up an estoppel to prevent it". The decisions are clear
that the plaintiffs cannot succeed in displacing the title of the defendant
on the basis of the unregistered agreement. But this will not help the
defrndant as the suit is based on the plea that the suit property and
the premises were purchased in co-ownership i.e. on a claim that the
plaintiffs were the real owners of the property.
The claims of the
plaintiff as a real owner is not based on the unregistered agreement
alone. On the pleadings in the case the question of law raised cannot
result in the rnit being dismissed as not maintainable.
The sccor,d question the learned counsel raised was that the suit
is barred under section 66 of the Civil Procedure Code. The trial court
overruled the plea on the ground that although the sale in question is
a court sale it is not according to the rules prescribed by the Civil Procedure Code but only according to the Rules of the Calcutta High
Court on the Original Side.
The learned counsel submitted that the
purpose of section 66, Civil Procedure Code, applies equally to court
sales conducicd under Rules of Civil Procedure Code as well as those
conducted under the High Court Rules. Reliance was placed on a
decision of the Privy Council in Bishun Dayal v. Kesha Prasad and
Anr. (I) where the only case pleaded by the plaintiff was that the person through whom he claimed derived his right to half of the village
from the auction purchase having been made in part on his behalf by
the auction purchaser, it was held that the claim was barred by section
66, Civil P10cedurc Code, inasmuch as no case independent of auction
purchase and basing title upon subsequent possession was put forward
in the plaint. Section 66 of the Civil Procedure Code runs
as
follows:-
"66(1). No suit shall be maintained against any persott
claiming title under a purchase certified by the Court in such
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(!) A.LR. 1940 P.C. 202.
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TARINIKAMAL v. P. K. CHATTERJEE (Kailasam, !.)
353
m.inner as may be prescribed on the ground that the purchase
was made on behalf of the plaintiff or ou behalf of some oue
through whom the plaintiff claims."
(2) '
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·s. 66 prohibits any person claiming that a purchase certified by the
court in such manner as may be prescribed in favour of a person was
made on behalf of the plaintiff. In order to invoke the prohibition it
is necessary to establish that the person against whom the suit cannot
be maintaintd is a person claiming title under a purchase certified by
the court in such manner as may be prescribed. A certificate by the
court for the purchase in the manner prescribed is therefore essential.
The word "prescribed" is defined under s. 2(16) of the Civil Procedure
Code as meaning prescribed by Rules. The provisions as to grant of
a certificate by a court under a purchase is prescribed in Order 21.
Order 21, Rules 64 to 73 prescribe the procedure relating to sale generally while Rules 82 to 108 prescribe the procedure relating to sale of
immovable property. When the court makes an order confirming the
sale under Order 21, Rule 92, the sale becomes absolute. After the
sale becomes absolute under Rule 94 the court shall grant a certificate
specifying the properties sold and the name of the person who at the
time of the sale is declared to be the purchaser.
Such certificate is
required to bear the day and the date on whlch the sale became absolute. The certificate by the court referred to in sec. 66 is a certificate
under Order 21, Rule 94. The procedure envisaged for sale generally
and sale of immovable property under Order 21 is sale by a public
auction. Sale by a court through the Receiver appointed by court is
not contemplated under these provisions.