Holding

The Partition Act’s mandatory provisions on valuation and reserve price were applicable and were not complied with, rendering the auction sale void and the High Court judgments set aside.

Summary

The Supreme Court examined a long‑running partition suit involving three immovable properties. The parties had agreed to an inter‑party auction without a formal valuation, but the Commissioner of Partition and the Calcutta High Court failed to comply with mandatory provisions of the Partition Act, 1893, notably Sections 2, 3 and 6, which require a valuation and fixation of a reserve price. The Court also found that the Commissioner did not give proper notice to all co‑owners as required by CPC Order XXVI Rule 18 and that the auction was conducted amid allegations of fraud and collusion. Consequently, the Court held the auction sale invalid, set aside the High Court judgments, and remanded the matter with directions to fix a valuation, possibly conduct a fresh inter‑party auction, and return any amounts paid. The appeal was allowed.

Issues considered

The Partition Act, 1893, Sections 2, 3 and 6, are applicable to the suit and are mandatory.
Whether a reserve price had to be fixed under Section 6 and whether the auction complied with that requirement.
Whether proper valuation of the properties was required under Sections 2 and 3.
Whether the Commissioner and the High Court complied with CPC Order XXI Rule 72A(2) and Order XXVI Rule 18 regarding notice and procedure.
Whether allegations of fraud and collusion render the auction void.
Whether the High Court erred in not examining the fraud/collusion issues.

Legislation cited

Code of Civil Procedures. Order XXI Rule 72A(2), s. Order XXVI Rule 18
Constitution of Indias. Article 142
Partition Act, 1893s. 2, s. 3, s. 6

Subjects

Partition ActAuctionReserve priceValuationFraudCollusionCPC Order XXI Rule 72ACPC Order XXVI Rule 18Notice requirementInter‑party auctionEquityArticle 142

Judgment

[2009] 4 S.C.R. 204

A RANI ALOKA DUDHORIA AND OTHERS
v
GOUTAM DUDHORIA AND OTHERS
Civil Appeal No. 6692 of 2005
MARCH 5, 2009
B
(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
partition of certain properties.
E
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'
1
application dated 16 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 h June, 1984. It has been urg~d that the plaintiffs-
1

H
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
interest of justice, is to protect the rights of the parties.
0
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 hotelal 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
dated 8th May, 1977. [Para 32] [249-H; 250-A-H]
B 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.
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:
E (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.
(b) The High Court shall pass an order as regards
the valuation of the properties, under the provisions of the
Partition Act.
G (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
H
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
D
(1997) 10 sec 65 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
of 2005 F

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.
S.B. SINHA, J.
B
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
Singh Dudhoria (KPSD) who succeeded to his estate. On or
D
about 16.10.1953 a mutual partition was entered into between
KCSD and KPSD. Some joint family immovable properties were '
divided and allotted between them on 50 : 50 basis. It was also
agreed that in future also on no account whatsoever there shall
be any deviation from this allotment and they would equally share
E
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
- half: half between the plaintiffs and the defendants.
H
,__
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
thereafter disbursement will be made, and the balance
D
amount will be held by them till further orders of this Court.
Such balance amount is to be deposited in a short terms
fixed deposit account with any nationalized bank. Although '"
the entire order has been passed by consent of the parties.
Mr.Chakraborty submitted that this order be recorded to
E 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
Kumar Mitra as a Commissioner of Partition. While declining
H
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 B
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 c
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 D
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. E
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.
F
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
G ;
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."
H
214 SUPREME COURT REPORTS [2009] 4 S.C.R.

A On or about 10.06.1983 defendants/respondents made
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 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"
c
On or about 25.07.1983, a meeting of the Joint
Commissioners was held in which properties which were not in
dispute were amicably divided. It was suggested in the meeting
that defendants should submit their valuation in respect of the
suit properties of Rajbari, Azimganj and Dharmshala at
0
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
which would be accepted as the reserve price. B

(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
application were different. Whereas in the prayer (b) of the notice E
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
216 SUPREME COURT REPORTS [2009] 4 S.C.R.

A Rajbati at Azimgange and Dharamshala at
Azimganj;"

We may also note the order passed by Khastgir, J. in the
following terms:

B ''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
c 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
D
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
E 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.
F
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."
G
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.
9. Directions were sought for on the following terms:
"a) Mr. Nirmal Kumar Mitra, Bar at law be directed to act
E 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
F 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:
G
(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 ex-
parte 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.
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.
c
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.
According to the appellants, Mr. Anand Aggarwal did not inform
0
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 :
"(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.
G
(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

DHARAMSHALA AT AZIMGANJ:
B
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

91, NETAJI SUBHAS ROAD, CALCUTTA
D 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
E
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.
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.
G
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
nil addressed to Mr. Anand Agarwal was issued, stating : B

"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
the balance consideration of the said third property E
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
224 SUPREME COURT REPORTS [2009] 4 S.C.R.

A 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.
B
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.
Thereafter Arnita alone made an application on
22.09.1997 for cancellation of the sale of the three properties,
stating :
F "(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.

G
(2) Arnita had left Calcutta to stay at Delhi for a year (1996-
97) for medical treatment of her mother, Rani Aloka, P1 ."
It was prayed:
"b) The purnorted sale of three properties namely
premises 110. 91, N.S. Road, Calcutta 700 001,
H
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. The application for confirmation
of sale was, therefore, allowed, stating :
G
"It was urged that notice of the sale was not given to all the
" parties. The advocates-on-record were all along with
notice of what was happening before the Learned
Commissioner of Partition. If some party did not appear
it was only because he or she did not choose to appear.
H
226 SUPREME COURT REPORTS [2009] 4 S.C.R.

A If the history of this litigation is reviewed it will be seen that
the plaintiffs have not been active at all in the matter of the
present litigation. All steps were taken by Mr. Chakraborty's
Clients all along."
The other plaintiffs also changed their lawyers replacing
B Anand Agarwal with M/s Victor Moses & Co.
14. Two Letters Patent Appeals, one by Arnita and another
by other plaintiffs except Seema, were filed, which were marked
as APOT No. 742 of 1997 and APOT No. 71 of 1998.
c The Division Bench by an order dated 8.01.1999, with the
consent of the parties, directed resale of the properties, stating:
"It is recorded that all allegations against Mr. Anand
Agarwal, Advocate of Mis Rajesh Khaitan & Co.,
Advocates, are withdrawn. Mr. Agarwala grees to continue
D
to represent Miss Sheema Dudhoria.
>-
Let this matter appear in the list marked "TO BE
MENTIONED" for filing of Terms of Settlement. Miss
Sheema Dudhoria is directed to be personally present in I
E Court on that date."
Terms of settlement between the parties were considered.
Some changes were proposed. The agreed terms were signed
by the parties on 28.01.1999. Arnita offered a sum of Rs. 21
lakhs. An objection was raised on behalf of Goutam and Sidharth.,
F thatAmita should not be given the opportunity to bid separately.
In view of the said controversy, the Division Bench released the
matter by an order dated 29.01.1999.
We may, however, notice that whereas the Division Bench
G in its order dated 8.01.1999 recorded that all allegations against
Mr. Anand Agarwal were withdrawn, a submission has bee11
made before us that as the settlement could not have been given
effect to, the same also stood withdrawn.
A special leave petition was preferred by Arnita as also
H the other plaintiffs except Seema.
RANI ALOKA DUDHORIA AND OTHERS V. 227
GOUTAM DUDHORIAAND OTHERS [S.B. SINHA, J.] ·

By an order dated 13.03.2003, this Court refused to A
interfere in the matters on the premise that the appeal had
emanated from an interim order. Contentions of the parties were
however left open to be urged before the High Court.
By reason of an order dated 10.02.2004, the Division
Bench dismissed the Letter Patents Appeals being APOT Nos. B
742 of 1997 and 71 of 1998.

On or about 12.03.2004, cheques representing the amount
of balance consideration were forwarded by Goutam and
Sidharth, which are said to have not been encashed. c
A review application was filed by the parties which has
been dismissed by reason of the impugned judgment dated
20.08.2004.
15. Mr. Manoj Goel, learned counsel appearing on behalf
0
of the appellants, would submit :
I. The impugned judgment cannot be sustained as the
auctioneers had in collusion committed fraud on the plaintiffs
and/ or the court, the particulars whereof are :
(i) The application dated 22.01.1997 was moved by E
the defendant No. 2 after a complete lull of 13 years
when the plaintiff No. 1 was unwell and the plaintiff
No. 4 was to take her to Delhi for treatment. Thus, all
proceedings took place behind their back.
F
(ii) At no point of time, the necessity of valuing the
property having been given up, only because a
chartered valuer was not to be appointed, the same
would not mean that the property was not to be valued
at all. Plaintiffs tainted before the Commissioner as G
and when they noticed therefor.
(iii) When one of the Joint Commissioners was elevated
as a High Court Judge and when a prayer had been
made earlier that Mr. N.K. Mitra be replaced by
another Commissioner, the prayer for his H
228 SUPREME COURT REPORTS [2009] 4 S.C.R.

A appointment as a sole Commissioner was an act of
fraud on court on the part of the respondents.
(iv) As the defendants knew that there was a provision
for reserved price to be fixed as per the agreement
between the parties, as would appear from the order
B dated 11.06.1984, the prayer purported to have been
made to value the said properties on their individual
basis was illegal. Consequently, the sale without fixing
a reserved price was also illegal. In any event, the
sale should not have been confirmed as the price
c was low and one of the plaintiffs had outbid the
defendants' offer but stringent conditions were
imposed, viz., minimum payment despite the fact
that the auction purchaser themselves did not comply
with the said conditions.
D
(v) A peremptory order dated 10.03.1997 was taken by
the defendants when except plaintiff No. 6, no other
plaintiff was available.
(vi) The Commissioner could not have devised his own
E procedure as regards service of notice despite the
order dated 10.03.1997 that notice should be served
to all the parties. There was no reason to serve
notices only on plaintiff Nos. 1, 3, and 6 although it
was the plaintiff No. 4 who had been representing
F them. Notice was not and could not have been served
upon the plaintiff Nos. 1 and 4 as at that point of time
they were not in Calcutta. The notice dated 5.04.1997
asking the parties to appear on 10.04.1997 was for
a period of less than seven days' despite the clear
directions by the High Court as contained in its order
G
dated 10.03.1997. The minutes of the meeting were
again served on the Advocate and not on the parties
in violation of the court's orders dated 11.06.1984
and 10.03.1997.
H (vii) Four weeks' time although had been prayed by Mr.
RANI ALOKA DUDHORIA AND OTHERS V. 229
GOUTAM DUDHORIA AND OTHERS [S.B. SINHA, J.]

Anand Agarwal on the ground of illness of plaintiff A
No. 1, adjournment was given for a lesser period so
as to enable the defendants to complete the entire
deal within the said period.
(viii) Although the Commissioner advised the parties to
seek extension of time as the four weeks' time had 8
expired, an application was made in respect thereof
by the respondents without making the appellants
aware thereof.

(ix) Although the time granted by the court expired on c
7.05.1997, the purported sales were carried on
8.05.1997 and 9.05.1997 when the Commissioner
had become functus officio.
(x) Mr. Anand Agarwal had never informed the plaintiffs
about the meetings dated 8.05.1997 and 9.05.1997 · D
and on the said dates only defendant Nos. 2 and 3,
their counsel and plaintiff No. 6 with Mr. Anand
Agarwal were present. It was for the first time that the
plaintiff No. 6 Seema ever participated in the court
proceedings or proceedings before the E
Commissioner.
(xi) Despite the fact that the Plaintiff No. 6 was a minor
when the suit was instituted, which fact was known to
Mr. Anand Agarawal, she not having attained majority
executed a power of attorney in favour of the plaintiff F
No. 1. She could not have represented the plaintiffs.
No such proof of authority was even asked by the
defendants, nor any proof therefor was filed. This
appears to be strange as the Commissioner who
had been taking the proceedings since 1979 knew G
f that Sheela Jain and Arnita alone were representing
the plaintiffs.
(xii) Although the property situated at Shrirampore was .
to be sold for discharging joint fiscal liabilities of ·M
230 SUPREME COURT REPORTS (2009] 4 S.C.R.

A both the parties, one of the conditions which was put
was that the bidder shall pay and bear the municipal
and other land taxes.
(xiii) Although 10% of the consideration amount was to
be paid through a cheque drawn in favour of the
B plaintiff No. 1, representing the other plaintiffs, a
cheque was drawn in favour of plaintiff No. 6 who put
the same in the joint account with the plaintiff No. 1
and also withdrew the amount.

c (xiv) Although in the terms of sale it was stipulated that
the balance consideration would be paid within 45
days, but the amount in respect of Rajbari and
Dharamshala properties situate at Azimganj was
tendered only on 3.07.1997 i.e. much after the said
stipulated period in violation of Clause (c)(ii) as also
D
Clause (g) in terms whereof no extension of time
was permissible. No payment has been made till
date in respect of the property situated at 91, Netaji
Subhash Road property which was offered only in
2004.
E
(xv) Although no documents of title or other papers were
available, in respect of the properties in suit as would
appear from the minutes of the meeting of the Joint
Commissioner dated 30.07.1983, Clause (f) of the ...
F terms could not have been made a condition to be
fulfilled simultaneously with the payment of the entire
balance consideration.
(xvi) For holding of meeting dat~d 9.05.1998, no notice I
communication was sent to the parties except the
G defendants and Seema. No inter-branch meeting
took place which was in violation of the terms of the
preliminary decree. Although the plaintiff No. 1 was
not present in the meeting dated 9.05.1997, it was
shown that the cheques towards 10% payment in
H respect of three properties were handed over to her
RANI ALOKA DUDHORIA AND OTHERS V. 231
GOUTAM DUDHORIAAND OTHERS [S.B. SINHA, J.]

which clearly points out the fraudulent action on the A
part of the defendants and their collusion with plaintiff
No. 6 and even the Commissioner.
(xvii) Although the defendants were aware that no
document of title was available, in their
communication dated 20.06.1997, they sought to 8
enlarge the time for payment by writing a letter just
three days prior to the expiry of 45 days period and
put a condition of simultaneously for handing over of
documents.
c
(xviii)No explanation has been offered by Mr. Anand
Agarwal as also the plaintiff No. 6 as to why they had
not objected to such tender of payment which was
contrary to the stipulated terms of sale held on
8.05.1997 which clearly demonstrates that they had
0
been colluding with the defendants.
(xix) Cheques drawn in the name of Advocate on Record
was no payment in the eye of law particularly when
the initial cheque in respect of the deposit of 10%
from the bid amount was drawn in the name of the E
plaintiff No. 1. There is nothing on record to show as
to at whose instance the cheques were drawn in the
name of advocate and he had agreed to accept the
same.
(xx) Yet again, so far as the property situated at 91, Netaji F
Subhash Road is concerned, no simultaneous
payment was made which was in violation of the
terms of conditions of sale. As the said property was
a tenanted one, the question of handing over of actual
physical possession thereof did not and could not G
arise.
II. The properties being impartible in nature, the sale of
the said properties could have taken place only in
terms of the provisions of Order XXVI, Rule 18 of the H
232 SUPREME COURT REPORTS [2009] 4 S.C.R.

A Code of Civil Procedure as also those of the Partition ,
Act.
Ill. The High Court in its order did not advert to the
question a::; to whether Seema had any authority or
not to represent the appellant wrongly but proceeded
B to hold that the plaintiffs, being not diligent, were not
entitled to any relief.

IV. The High Court committed a serious illegality insofar
as it failed to deal with the contentions raised by the •
c appellants on fraud and collusion of the parties.

V. The Commissioner had no authority to put the
properties on auction on 8.05.1997 which was
beyond the period of three weeks granted by the
court.
D
VI. No bid having taken place either inter-parties or intra- ,
parties and as the defendant Nos. 2 and 3 had bid
only individually the same could not have been
confirmed.

E VII. As the properties were put on auction, the valuation
of the property was not relevant.

16. Mr. P.S. Narasimha, learned counsel appearing on
behalf of the appellants in Civil Appeal Nos. 6693-94 of 2004 ~
would contelld :
F
(i) The High Court committed a serious error to consider
that the parties were not diligent throughout on an
assumption that the matter had been going on from
1979 although diligence on their part for a period of
G four months was only relevant.
(ii) As the plaintiff No. 6 was at all material time and still
is supporting the defendants, the High Court should
have considered the fact that the plaintiffs had not
been present when the auction took place.
H
RANI ALOKA DUDHORIA AND OTHERS V. 233
GOUTAM DUDHORIAAND OTHERS [S.B. SINHA, J.)

(iii) Serious allegations of fraud and collusion made A
against the advocate were withdrawn in view of the
fact that a settlement between the parties had been
arrived at and as the settlement could not be given
effect to, withdrawal of allegations against him also
stood withdrawn. B
(iv) The direction on the part of the learned Single Judge
to deposit the entire amount was unfair as even the
defendants did not deposit the entire amount by way
.. of fulfillment of the condition of sale which although
raised in the review application but had not been c
dealt with. As in terms of clause c(iii) of the condition
of sale, the amount was to be forfeited, the sale was
confirmed but no payment had been made within a
period of six months.
D
(v) In terms of the provisions of the Partition Act, valuation
of the property was mandatory in nature. It was to be
made both before and after the preliminary decree.
(vi) Although the question as to whether a fraud has been
practised or not is a matter of proof, the High Court E
committed an illegality insofar as it refused to enqu11 e
into the matter.

17. Mr. Sunil Gupta and Mr. Altaf Ahmed, learned senior
counsel appearing on behalf of the respondent Nos. 1 and 2,
on the other hand, would contend : F

(i) The appellants did not file any application before the
learned Single Judge to challenge the sale of the
plaintiffs' share in the said properties in favour of the
C:efendants. They merely supported the application
G
of the plaintiff No. 4 who alone had filed an
application before the learned Single Judge to assail
the said sale.
(ii) When the plaintiff No. 2 Sheela was in Calcutta, she
represented the plaintiffs. After her marriage, plaintiff H
234 SUPREME COURT REPORTS (2009] 4 S.C.R.

No. 4Amita represented the plaintiffs and when Arnita
also was not available, plaintiff No. 6 Seema
represented the plaintiffs because none of the other
plaintiffs were in Calcutta. She herself stated before
the Commission on 09.05.1997 that she had been
13 authorised to attend the meeting and to receive
cheques for and on behalf of the plaintiffs. Moreover,
Seema, Arnita and Rani Aloka were residing
together when Rani Aloka was in Calcutta during
1996-97. This fact clearly shows a perfect harmony •
"'
.J
between Rani Aloka, Seema and Arnita and, thus,
the allegation that Stlema did not have any authority
to represent them is manifestly an afterthought.
(iii) As regards the allegation of lack of notice of the
meetings before the Commissioner, the same is also
) false as the plaintiffs or their advocate had notice of
all the meetings and even the terms of the bidding
were settled in presence of Seema and the plaintiffs'
advocate. Under Chapter I, Rules 6 and 13 of the
Original Side Rules of Calcutta High Court, an
-- advocate of a party is entitled to represent his/ her
client in the suit and in all matters in connection therewith.
(iv) No allegation of collusion on the part of their advocate
was made by the plaintiffs before the learned Single
Judge. Furthermore, all allegations made against their
-- advocate were withdrawn by the plaintiffs before the
Division Bench.
(v) As regards alleged collusion between Seema and
the defendants, no evidence in support thereof has
"';J been furnished.
(vi) What happened in the meetings dated 8.05.1997
and 9.05.1997 was merely the implementation of
what had earlier been agreed to between the parties
in the meetings dated 25.07.1983, 30.07.1983 and
7.07.1991.
RANI ALOKA DUDHORIA AND OTHERS V. 235
GOUTAM DUDHORIAAND OTHERS [S.B. SINHA, J.]

(vii) As regards valuation of the property before bidding A
the plaintiffs had agreed that valuation of the three
properties was not necessary which is evident from
the orders dated 5.07.1983 and 11.06.1984 as also
the minutes of the meetings dated 25.07.1983 and
30.07 .1983. Moreover, there had never even been a B
suggestion to the court by any side that since the
property is indivisible for the reasons stated in
Section 2 of the Partition Act, there needs to be a
public sale. The sale took place only as an equitable
measure for the purposes of carrying out the division c
ordered in the preliminary decree.
(viii) The plaintiffs have never cooperated with the
defendants or the Commissioner in implementing
the orders of the court and failed and/ or neglected
to attend several meetings called by the D
Commissioner.
(ix) Under Section 12 of the Limitation Act, 1963, for the
purpose of computing the limitation period, the day
on which the order was passed has to be excluded.
As the last extension of time was granted by ari rwder E
dated 17.04.1997 for three weeks, it would expire
on 8.05.1997 and not on 7.05.1997. Furthermore,
the terms and conditions of the bidding process were
•
finalized on 8.05.1997 and on 9.05.1997, only the
same were given effect to. F
18. The relationship between the parties is not in dispute.
The extent of the joint family properties is also not in dispute.
We are concerned with only 3 impartiable properties as
described in Schedule 'B' of the plaint, namely - premises No. G
,, 91, Netaji Subhas Road, Calcutta, Rajbari at Azimganj and
Dharamshala atAzimganj. Indisputably the said properties were
put to auction, a bidding was held by the Commissioner of
Partition on 9th May, 1997. So far as the property - Rajbati at
Azimganj is concerned, defendant Nos. 2 and 3 had purchased H
236 SUPREME COURT REPORTS [2009] 2 S.C.R.

A it jointly for a sum of Rs.7,00,000/- whereas the property
commonly known as Dharamshala atAzimganj was purchased
by defendant No.2 alone for a sum of Rs.75,000/-. Similarly the
property at Netaji Subhas Road, Calcutta was purchased by
defendant No.2 alone for a sum of Rs.24,00,000/-
B 19. The core question which arises for our consideration
is as to whether the said purported auction was held de'hors
the provisions of the Partition Act, 1893 or in accordance
therewith. Indisputably the property situated at Netaji Subhas
Road, Calcutta, is a double storeyed building on a land •
=
C measuring 12 cottah. It is situated at a prime location.
Rajbari at Azimganj has been constructed on a land
measuring more than 4 bighas. The building consists of more
than 100 rooms. Indisputably again a large number of joint
movable properties situate therein. The property known as
0
Dharamshala at Azimganj also has a double storeyed building ,
situate on 1 bigha of land approximately.
Validity of the sale of the said properties, as indicated
hereinbefore, is in question inter alia on the premise that :
E
(i) The provisions of the Partition Act have not been
complied with.
(ii) Seven out of eight plaintiffs had no notice as regards
the date fixed for auction. •
F (iii) Defendants/respondents in any event having not
deposited the amount required within the time
stipul:?ted, the auction sale was required to be set
aside.
G When a property is put to auction in a suit for partition, the
provisions of the Partition Act, indisputably, shall apply. •
20. Section 2 of the Partition Act, 1893 provides that
whenever in a suit for partition in which, if instituted prior to the
commencement of the Act, a decree for partition might have
H been passed, it appears to the court that, by reason of the nature
RANI ALOKA DUDHORIA AND <JTHr:-RS V. 237
GOUTAM DUDHORIAAND OTHERS [S.B. SINHA, J.]

~
of the property to which the suit relates, or of the number of the A
shareholders therein, or of any other special circumstance, a
division of the property cannot reasonably or conveniently be
made and that a sale of property and distribution of the
processes would be more beneficial for all the shareholders,
the court may, direct sale thereof subject to the condition that B
the request therefor had come from a shareholder or
shareholders interested individually or collectively to the extent
of one moiety or upwards. What therefore was necessary is
,. that there should be a request from a shareholder ; a formal
prayer to that effect may not be necessary ; a positive finding c
that the property is incapable of division by metes and bounds
would be necessary and that the property cannot be reasonably
or conveniently be partitioned.
Section 3 of the Act envisages sale of the property within
the shareholders. It unlike the provisions of the Code of Civil D
,. Procedure, does not debar a shareholder from taking part in
auction inter alia on the premise that the shareholder may be
interested in keeping the property to himself. A balance must
be struck in regard to the individual interest of the shareholder
having regard to the conflicting interest in the respective bids E
vis-'-vis the value of the property.
21. Parties have half share in each of the properties in
~ suit. In terms of the preliminary decree and order dated 20th
July, 1979 valuation of the suit property was to be done by a
well known valuer. Such an order was passed on the basis of F
an agreement between the parties. Ascertainment of valuation
of the suit property was directed in terms of Sections 2 and 3 of
the Partition Act. The said order indisputably had not been varied,
altered or modified.
..,, G
Azimganj properties had initially been put in two lots .
However, subsequently the defendants-respondents through
their application dated 16th August, 1983 took out the same
from that two lots. From various applications as also of the
proceeding before the Commissioner of Partition, no
H
238 SUPREME COURT REPORTS (2009] 4 S.C.R.

A mechanism could be agreed upon for division of the said
properties. It was, therefore, a case where the requirement of •
Section 2 of the Partition Act were clearly attracted. An
application was also filed on 16th August, 1983 by the
defendants/respondents stating :
B "11. Your petitioner states that in order to obviate the
question of valuation of properties a base price be fixed
from which the parties may be at liberty to bid as was the
order made His Lordship the Honourable Mr. Justice AK.
Sarkar on 20th July, 1979 and the same procedure be •
c followed in respect of the three properties."
Thus, base or the reserve price was to be fixed for the
said properties also. The said decision is fortified from the
Minutes of the Meeting dated 30th July, 1983 of the Joint
Commissioner and the order of the Court dated 10th June, 1984.
0
22. Before the High Court specific ground in this behalf ~
had been taken. In fact there is a clear admission on the part of
the defendants/respondents as would appear from their
application dated 16th August, 1983 that the properties were
E kept out of the lots since they were incapable of partition by
metes and bounds.
It furthermore appears that in their counter-affidavit the
defendants/respondents have clearly admitted :

F "Thereafter the defendants in the said suit being Kumar
Chandra Singh Dudhoria and his branch prepared a
Scheme for partition of the immoveable properties and
submitted the same to the Commissioner of Partition. The
said Scheme suggested, inter alia, that three properties
G which could not be partitioned by metes and bounds namely
Premises No.01, Netaji Subhas Road, Calcutta, Rajbari ,
and Dharamsha!a at Azimganj (hereinafter referred to as
the said properties) be offered to the parties for sale through
bidding without valuation. The rest of the joint immovable
properties were divided into two lots viz. "A" and "B".
H
RANI ALOKA DUDHORIAAND OTHERS V. 239
GOUTAM DUDHORIAAND OTHERS [S.B. SINHA, J.]
It may not, therefore, be correct to contend that the A
.. provisions of the Partition Act were not attracted.
Sub-section (2) of Section 3 mandates valuation to be
made by the court at which a sale of the share or shares can be
directed to be made only when the highest price is offered to
be paid by another co-sharer. Sub-section (3) of Section 3 B
thereof provides that if no shareholder is willing to buy share or
shares at the price so ascertained, the applicant or applicants
shall be liable to pay all costs of or incidental to the application
N
or applications, which leads to the conclusion that in the absence
of pre-determining valuation in regard to the half share of the c
properties, the properties in question could not have been put
to auction sale.
23. It has been contended that the plaintiffs agreed t~at
valuation of the property was not necessary. The said contention
D•
cannot be accepted for more than one reason, firstly because
of the order passed by the High Court in passing a preliminary
decree, which could be varied or modified only by a subsequent
• order ; secondly because once the provisions of the Partition
Act are held to be applicable, keeping in view the legal principles
attracting construction of Sections 2 and 3 thereof, no deviation, E
therefore, in our opinion was permissible.
It is not the contention of the plaintiffs/appellants that only
' , a public sale was permissible in law but even in regard to agreed
inter se sale amongst the co-sharers, the provisions of the F-
Partition Act were required to be followed.
In K. RamamuJthi Iyer v. Raja V. Rajeswara Rao, [ (1972)
2 SCC 721 ] this Court held :
"The scheme of Sections 2 and 3 apparently is that if the (
y nature of the property is such or the number of shareholders
is so many or if there is any other special circumstance
and a division of the property cannot reasonably or
conveniently be made the court can in its discretion, on
the request of any of the shareholders interested
~
240 SUPREME COURT REPORTS [2009) 4 S.C.R.

\
A individually or collectively to the extent of one moiety or
upwards, direct a sale of the property and distribute the
proceeds among the shareholders. Now where a court
has been requested under Section 2 to direct a sale any
other shareholder can apply for leave to buy at a valuation
B the share or shares of the party or parties asking for sale.
In such a situation it has been made obligatory that the
court shall order a valuation of the share or shares and
offer to sell the same to the shareholder who has applied
for leave to buy the share at a price ascertained by the
court. In other words if a plaintiff in a suit for partition has •
c invoked the power of the court to order sale instead of
division in a partition suit under Section 2 and the other
shareholder undertakes to buy at a valuation the share of
the party asking for sale the court has no option or choice
or discretion left to it and it is bound to order a valuation
D
of the share in question and offer to sell the same to the
shareholder undertaking or applying to buy it at a valuation.
The purpose underlying the section undoubtedly appears
to be to prevent the property falling into the hands of third
parties if that can be done in a reasonable manner. It
E would appear from the Objects and Reasons for the
enactment of the Partition Act that as the law stood the
court was bound to give a share to each of the parties and
could not direct a sale or division of the proceeds. There i
~
could be instances where there were insuperable practical
F difficulties in the way of making an equal division and the
court was either powerless to give effect to its decree or
was driven to all kinds of shifts and expedients in order to
do so. The court was, therefore, given a discretionary
authority to direct a sale where a partition could not
G reasonably be made and the sale would, in the opinion of
the court, be more beneficial to the parties. But having
regard to the strong attachment of the people in this country
to their landed possessions the consent of the parties
interested at 1e::ist to the extent of a moiety in the property
H was made a condition precedent to the exercise by the
RANI ALO KA DU DH OR IA AND OTHERS V. 241
GOUTAM DUDHORIAAND OTHERS [S.B. SINHA, J.]

Court of the new power. At the same time in order to prevent A
any oppressive exercise of this privilege those shareholders
who did not desire a sale were given a right to buy the
others out at a valuation to be determined by the court.

As regards construction of Section 3 of the Act it was held :
B
"... The language of Section 3 of the Partition Act does not
appear to make it obligatory on the court to give a positive
finding that the property is incapable of division by metes
and bounds. It should only "appear" that it is not so capable
" of division. It has further been contended that the
respondent had maintained throughout that the property
c
was capable of division. He could not, therefore, take
advantage of the provisions of the Partition Act. .. "

[See also Sathi Lakshmana KC v. PC Mohandas, 2008
(4) KLT 401 and Smt. Rukmani wlo Late Ethraj v. Uda'j Kumar D
,.. Sia Late 8. Venkatesalu, ILR 2008 KAR 13]
24. Our attention has been drawn to a decision of this Court
in Sadri Narain Prasad Choudhary v. Nil Ratan Sarkar, [(1978)
3 SCC 30]. Therein while opining that Sections 2 and 3 of the
Partition Act are interlinked, having regard to the fact that the E
property being small could not conveniently and reason~bly be
partitioned without destroying its intrinsic wealth, this Court
evolved an equitable method to take the value of the property
as Rs 50,000/- in 1963 and allowed a reasonable increase for
the rise in price since 1963, taking into account the rise in price F
in the locality, and gave the defendant the first option to retain
the whole property on payment of 13/16 share of that valuation
(including the increase) to the plaintiffs within a period of
specified therein.
The said decision does not lay down any legal principle. In G
any event it has no application to the facts of the present case,
keeping in view the extent of the properties, as indicated by us
heretobefore. We may furthermore notice that therein
unfortunately attention of this Court was not drawn to the decision
of this Court in K. Ramamurthi Iyer (supra). H
242 SUPREME COURT REPORTS [2009] 4 S.C.R.

A 25. It was urged before us that such a question having
never been raised, this Court should not permit the same to be
raised before this Court for the first time. It, however, appears
that the plaintiffs/appellants raised the said contention in the
grounds of appeal. Though raised, the same had not been
B considered by the Division Bench.
In any event if the defendants-respondents intend to invoke
equity they must also do equity. As would appear from the record,
apart from the order passed at the time of passing of the
preliminary decree dated 20th July, 1979 but also from the
C Minutes of the Joint Commissioner's Meeting dated 30th July,
1983 ; application of the respondents dated 16th August, 1983
and from the order dated 10th June, 1984, it is clear that the
provisions of the Partition Act shall apply, particularly when in
view of the decision of this Court in K. Tamamurthi Iyer (supra),
D neither any aforementioned application was necessary nor any
specific finding thereto was imperative. Once it is held that the
provisions of the Partition Act are applicable. the court was
bound to comply with the provisions thereof. If that is the legal
principle, on interpretation of the Partition Act as also from the
E decision of this Court, it must be held that the Commissioner of
Partition and the High Court failed to comply with the said
provisions.
In Malati Ramchandra Rauf (Mrs) v. Mahadevo Vasudeo
1
Joshi, [1991 Supp (1) SCC 321 ] this Court held :
F
"9. It is the duty of the court to order the valuation of the
shares of the party asking for a sale of the property under
Section 2 and to offer to sell the shares of such party to the
shareholders applying for leave to buy them in terms of
Section 3 at the price determined upon such valuation."
G
We may also notice that in TS. Swaminathan v. Official
Receiver of West Tanjore, [AIR 1957 SC 577], this Court held
as under:
"14. It must be remembered that the decree was one for
H
RANI ALOKA DUDHORIA AND OTHERS V. 243
GOUTAM DUDHORIAAND OTHERS [S.B. SINHA, J.]

partition of the properties belonging to the joint family of A
which the Defendant 3 and the appellant were coparceners.
While effecting such a partition it would not be possible to
divide the properties by metes and bounds there being of
necessity an allocation of properties of unequal values
amongst the members of the joint family. Properties of a B
larger value might go to one member and properties of a
smaller value to another and therefore there would have to
be an adjustment of the values by providing for the payment
by the former to the latter by way of equalisation of their
shares. This position has been recognised in law and a c
provision for such payment is termed "a provision for owelty
or equality of partition'."

We may quote with approval the meaning of the term
'owelty':
D
"'Owelty'.-When an equal partition cannot be otherwise
' made, courts of equity may order that a certain sum be
paid by the party to whom the most valuable property has
been assigned. The sum thus directed to be paid to make
the partition equal is called 'owelty'."
E
This could clearly show that the court has no power to direct
sale de' hors the provisions of the Partition Act.

26. This brings us to the question as to whether the
provisions of Section 6( 1) of the Partition Act have been
complied with or not. Sub-section (1) of Section 6 of the Partition F
Act mandatorily requires fixation of a reserved price. Parties
appear to have agreed thereto before the Commissioner of
Partition as would be cleared from the respondents' application
dated 16th August, 1983. Such a stand had also been taken by
'I the parties before the High Court as would appear from the order G
i'
dated 11th June, 1984 which is to the following effect :
" .... It has been suggested by the Advocate on Record of
the Petitioner as also of the defendants that a base price
be fixed as the reserve price and thereafter the parties
H
244 SUPREME COURT REPORTS (2009] 4 S.C.R.

A may be given the liberty to bid for the properties and the
ultimately purchaser in turn would pay the half price to the
other party... "
It is of significance to notice that respondents in their
application dated 22nd January, 1997 prayed for a direction
B from the High Court to the Commissioner of Partition that "they
may be given leave to sell the said properties without fixing any
reserve price" as also "that a liberty be given to the
Commissioner of Partition to permit the parties present to
purchase the said properties at their own valuation." "
c
If the provisions of Section 6 of the Partition Act are
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 11th June, 1984. It
D
has been urged that the plaintiffs-a'Jpellants 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
E need not be done by a valuer but the same would not mean that
the plaintiffs-respondents had themselves agreed not to have
any valuation of the properties at all. The respondents, however,
had even not denied or disputed that he had also agreed to the
same which would appear from the following statements made
F by respondent No.2 in his affidavit before the High Court, which
read as under :
"9. Your petitioner states that Advocate on behalf of your
petitioner as also the Advocates, appearing for the other
defendants had suggested that a base price be fixed as
G
the reserved price and thereafter the parties may bid for
the properties and ultimate purchaser shall have to pay
" ....
the half price to the other party in order to obviate the
costs and expenditure involved in having the properties
valued by a valuer but the said suggestion was never
H
RANI ALOKA DUDHORIA AND OTHERS V. 245
GOUTAM DUDHORIA AND OTHERS [S.S. SINHA, J.]

acceded to by the plaintiffs. In this connection the copies A
of the minutes of the meeting dated 25th July 1983 and
30th July 1983 are annexed hereto and collectively marked
as 'D' ............
12. Your petitioner further states that if the properties are
to be valued by a valuer the minimum costs of such B
valuation would be about Rs.25,000/- and your petitioner
is not in a position to afford such expenses in respect of
such valuation. If the procedure suggested by your
)'
petitioner is accepted neither the plaintiffs nor the
defendants would be prejudiced in any way but expenses c
for valuation of the properties can be dispensed with."
27. We may also notice from the order sheet dated 11th
June, 1983 that the Court had allowed the prayers (b) & (c) of
the petition and not of 'Notice of Motion' where prayer (b), as
noticed hereinbefore, was to the following effect:- D

"b) Directions be given to the Joint Commissioner of
Petition regarding allotment of properties being premises
no. 91, Netaji Subhas Road, Calcutta, Rajbati atAzimganj
and Dharamshala at Azimganj."
E
This court would go by the records of the High Court and
not by the prayer made in the notice of motion.
0.
No application for modification of that order had been
" prayed for. In any event the said order could not have been
passed in supersession of the order dated 20th July, 1979. F
Valuation of a property of this nature even, in the interest of
justice, is to protect the rights of the parties. Code of Civil
Procedure provides therefor as would appear from Order XX.I
Rule 72A(2). Although the said provision may not ipso facto
available but we are referring thereto, as apart from the fact that G
the court had such a duty to fix the reserve price, this Court in
D.S. Chohan v. State Bank of Patiala, [ (1997) 10 SCC 65]
had set aside the sale for not complying with the statutory
provisions of fixing the reserve price under Order XXI Rule 72A
(2) of the Code of the Civil Procedure. H
246 SUPREME COURT REPORTS [2009] 4 S.C.R.

A 28 We have been taken through the conduct of the parties
in great detail. Even if for the time being we keep aside non-
appearance of some of the plaintiffs-appellants at each stage
of the proceedings before the Commissioner(s) of Partition. it
is clearly borne out from the records that admittedly notices had
B been issued by the Commissioner of Partition only to three
plaintiffs on 5th April, 1997, namely plaintiff No1 ; plaintiff No.3
and plaintiff No.6. Why no notice was issued to Arnita Dudhoria
has not been explained. It is difficult to comprehend that only
three of them were chosen, - one of them being ill, another being
C in U.S.A. for more than 26 years and another allegedly colluding
with the defendants.
It is not necessary for us to delve in detail in regard to the
conduct of Shri Anand Aggarwal, Advocate, but in view of Rule
18 of Order XX.VI of the Code of Civil Procedure, there cannot
D be any doubt, whatsoever that the Commissioner should have
issued notice to all the parties.
Mr. Manoj Goel has placed reliance on a large number of
decisions before us to contend that Rule 18 of Order XXVI is
mandatory. We, however, need not advert to the said decisions
E as atleast seven out of eight plaintiffs contend before us that
they did not have notice of bidding. None of the plaintiffs have
been shown to have bid for any of the three properties. It is unlikely
that they would stay out even if they had notice and allowed the
defendants to bid behind their back. Sheema Dudhoria evidently
F had been supporting the defendants. Even the learned Single
Judge recorded that she had given instructions to support the
case of the defendants.
Such a notice was also necessary as in a suit for partition
G each party has an ind.ividual right. One of them atleast is siding
with the defendants. Even the plaintiffs admittedly had received
payment in part. Even the defendants did not offer the bid jointly.
Defendant No.2 in his individual capacity had offered his bid in
one of the properties in his individual name and only with
H defendant No.3 in respect of one of the properties.
RANI ALOKA DUDHORIA AND OTHERS V. 247
GOUTAM DUDHORIAAND OTHERS [S.B. SINHA, J.]

It must also be placed on record that the High Court in its A
order dated 10th March, 1997, categorically directed the
Commissioner of Partition to give at least 7 days' clear notice
to the parties before holding any such meeting so as to enable
them to be present personally or through their advocates.
Issuance of such a notice was imperative in character. B
In D.S. Chohan v. State Bank of Patiala [(1997) 10 SCC
65], this Court held :

> " ... An objection was raised by the appellants against the
acceptance of the said bid of the respondent on the ground c
that there was non-compliance with the mandatory
provisions of Order 21, Rule 72-A CPC. The said objection
was rejected by the learned Single Judge and the appeal
filed by the appellants has been dismissed by the Division
Bench of the High Court by the impugned judgment.
D
3. In view of the specific requirement contained in sub-rule
(2) of Rule 72-A of Order 21 CPC that in cases where
leave to bid is granted to the mortgagee, the Court shall
fix a reserve price as regards the mortgagee and unless
the Court otherwise directs the said reserve price has to E
be in consonance with requirement of clauses (a) and (b),
it was incumbent for the Court to fix the reserve price. In
the order dated 2-1-1981 the Court, while permitting the
respondent mortgagee to make the bid, did not give any
direction regarding fixing the reserve price. The sale in F
favour of the respondent having been made in violation of
the mandatory provisions of Order 21, Rule 72-A(2) CPC
cannot be upheld and has to be set aside."
A Division Bench of the Kerala High Court in Nedungadi
Bank Ltd. v. Ezhimala Agrl. Products (2003 (3) KLT 1011] while G
opining that "reserve price" and "upset price" though analogous
and almost homologous but are not synonymous, stating :
"... While understood in the context in which the expression
is employed in the code, "reserve price" means a price H
248 SUPREME COURT REPORTS [2009] 4 S.C.R.

A reserved at an auction as the minimum amount realisable
by sale of the property so as to realise the entire mortgage
debt or a proportionate portion of the mortgage debt- a
price which will remain static during the sale unless the
court on grounds of genuine diffidence on the side of the
B decree-holder chooses to reduce the same. Fixation of
reserve price is peculiar to situations where court grants
permission to mortgagee-decree-holders to bid in the
auction. Upset price and reserve price are certainly the
lowest prices for which the properties will be sold in auction.
c But the term "reserve price is exclusive to mortgagee-
purchasers. The term "upset price" is used generally in
respect of purchases by all others including third parties.
When upset price has been fixed, the bid should
commence with that price and the sale will ultimately be
held for an amount higher than that price. But in the case
D
of reserve price, the bid can commence with the upset
price which may be an amount below the reserve price.
'
But the moment the mortgage-decree holder avails the
leave granted to him by the court, the sale will be knocked
down in his favour for the reserve price, though nothing
E prevents a conscientious decree-holder from bidding and
purchasing for a higher amount."

Emphasizing the need to comply with the statutory rules
as contained in various provisions under Order XXI of the Code
F of Civil Procedure, this Court in Manila/ Mohan/al Shah and
Others v. Sardar Sayed Ahmed Sayed Mahmad and another
[AIR 1954 SC 349] held that the inherent power of the court
cannot also be resorted to circumvent the mandatory provisions
of the Code.
G This Court in Laxmikant Chhotelal Gupta v. State of
Maharashtra, [ (2007) 5 SCC 713] clearly held :
"14. Even when an auction takes place under orders of
the competent civil court, the procedures laid down in the
Code of Civil Procedure are required to be complied with.
H
RANI ALOKA DUDHORIA AND OTHERS V. 249
GOUTAM DUDHORIAAND OTHERS [S.S. SINHA, J.]

Objections to the validity of sale at the instance of one A
party or the other are required to be considered and
determined. Even an appeal lies against such an order in
terms of Order43 Rule 1(u) of the Code of Civil Procedure.
15. Provisions of a statute, whether directory or mandatory,
necessitating strict or substantial compliance are questions 8
which must be determined by the courts. This Court thought
that the High Court would do so. Presumably the effect
and purport of this Court's order having not been brought
to its notice, we, therefore, are of the opinion that the
matter should be directed to be considered afresh by the C
competent authority. We are informed at the Bar that
Respondent 4 being Assistant Commissioner of Sales
Tax is the competent authority therefor. We, therefore, while
setting aside the order of the High Court would direct the
said authority to consider the contentions raised by the. D
appellants herein on their own merits."
A large number of circumstances had further been brought
to our notice to establish collusion and fraud. We may notice
some of them.
E
30. 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 not been given to all the parties. F
For the said purpose, the Commissioner could not have devised
his own procedure.
31. Sheema Dudhoria had shown an unusual interest in
attending the meetings allegedly without instructions from other
plaintiffs. Even Anand Agarwala, Advocate, appeared without G
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.
32. If any auction had taken place by fraud or collusion the H
250 SUPREME COURT REPORTS [2009] 4 S.C.R.

A same is non est in the eyes of law. We are not suggesting that
mere suspicion of fraud would amount to proof thereof but the
High Court in our opinion should atleast have gone into such a
. '

question. The Division Bench, in our opinion. should also have
gone into this question. If it required proof, the question should
B have been clearly answered by referring to the documents and
other materials on record so as to enable it to arrive at a finding
that no fraud or collusion had taken place. A finding to that effect
one way or the other was required to be arrived at. The Division
Bench proceeded on the basis that despite notices the plaintiffs
'
c did not participate in the proceeding without considering as to
whether their plea that they did not receive any notice was correct
or not. Even the learned Single Judge did not return any finding.
The learned Single Judge did not frame any issue. Furthermore
some material irregularities had also taken place in the conduct
of auction. Notice of clear 7 days had not been given to the
0
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.

E On one 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.
F The defendants-respondents did not deposit the amount
within 45 days of the date of auction. It is stated that no payment
had been made in respect of the property 19, Netaji Subhash
Road, Calcutta. The cheque was made in the name of the
Advocate on record. Although initially the cheque was drawn in
G the name of plaintiff No.2, there was no such stipulation therefor.
Any payment made to Anand Aggarwala after the expiry of the
stipulated period of 45 days must be held to be in violation of
the terms and conditions stipulated in regard to the sale of the
property dated 8th May, 1977.
H
RANI ALOKA DUDHORIA AND OTHERS V 251
GOUTAM DUDHORIA AND OTHERS [S.S. SINHA, J.]

In Behari Kunj Sahkari Avas Samiti v. State of UP & Ors. A
[2008 (10) SCALE 551), this Court observed :
"13. In State of A.P and Anr. v. T Suryachandra Rao
[2005(6) sec 149) it was observed as follows :

By "fraud" is meant an intention to deceive; whether it is B
from any expectation of advantage to the party himself or
from the ill will towards the other is immaterial. The
expression "fraud" involves two elements, deceit and injury
to the person deceived. Injury is something other than
economic loss, that is, deprivation of property, whether C
movable or immovable or of money and it will include and
any harm whatever caused to any person in body, mind,
reputation or such others. In short, it is a non- economic or
non-pecuniary loss. A benefit or advantage to the deceiver,
will almost always call loss or detriment to the deceived.
Even in those rare cases where there is a benefit or D
· advantage to the deceiver, but no corresponding loss to
. the deceived, the second condition is satisfied."

33. Fraud as is well known vitiates all solemn acts.
Suppression of a document, it is also trite, may amount to fraud E
on the court. The effect of commission of fraud must be taken
note of. (See also Bank of India and Another v. Avinash D.
Mandivikar and Ors. (2005) 7 SCC 690)
34. For the views we have taken, it is not necessary for us
to go into the questions of fraud and collusion in details. The F
impugned judgments of the High Courts are set aside. We,
however, keeping in view the peculiar facts and circumstances
of the case and in exercise of our jurisdiction under Article 142
of the Constitution of India would issue the following directions:
'
(a) The matter shall be fixed before the learned Single G
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 issued. H
252 SUPREME COURT REPORTS [2009] 4 S.C.R.

A (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/
B 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
respondent No.2 and/or 3 shall be returned to them
c 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.
35. The appeals are allowed with the aforementioned
directions. There shall be no order as to costs.

G.N. Appeals allowed. '