Calcutta High Court
Sri Soumen Mullick & Anr vs Sri Somenath Mullick & Ors on 17 May, 2018
Equivalent citations: AIRONLINE 2018 CAL 135
Author: Moushumi Bhattacharya
Bench: Biswanath Somadder, Moushumi Bhattacharya
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble JUSTICE BISWANATH SOMADDER
and
The Hon'ble JUSTICE MOUSHUMI BHATTACHARYA
APD No. 534 OF 2017
GA 3793 OF 2017
with
CS No. 438 of 1973
SRI SOUMEN MULLICK & ANR.
Vs.
SRI SOMENATH MULLICK & ORS.
For the Appellant : Mr. Debnath Ghosh, Adv.
Mr. Arik Banerjee, Adv.
Ms. Saheli Sen, Adv.
Mr. Avishek Guha, Adv.
For the Respondent : Mr. A. C. Kar, Senior Adv.
Mr. Anirban Kar, Adv.
Mr. Karan Daga, Adv.
Heard on : 04.12.2017, 06.12.2017, 11.12.2017, 03.01.2018,
09.01.2018, 16.01.2018, 18.01.2018 & 06.02.2018.
Judgment on : 17.05.2018
Moushumi Bhattacharya, J. :
The present appeal is from a judgment and decree dated 5th July, 2017 on an application filed by the respondent no.1 for final decree in a partition suit. The respondent no.1 is the defendant no.1 and the appellants are two of the plaintiffs in the suit which was filed on 14th September, 1973 for a decree for partition of six immovable properties involving premises located at Manicktalla Main Road, Calcutta-54. The prayers in the plaint were, inter alia, for allotment of the properties to the plaintiffs according to their respective shareholding.
The suit is for partition of the properties of late Kristo Mohon Mullick who died intestate on 5th April, 1936 leaving his wife Gouribala Mullick and five sons Kedarnath Mullick, Dwarkanath Mullick, Kashinath Mullick, Lokenath Mullick and Somnath Mullick, each having a share of the properties which consisted mainly of 237-P/1B, Manicktalla Main Road/Satin Sen Sarani (consisting of the dwelling house), 237-P/1C, Manicktalla Main Road, 245/1, Manicktalla Main Road, 245B, Manicktalla Main Road and 246B, Manicktalla Main Road. The parties interested in the properties of Kristo Mohon Mullick would be clear from the diagram below, as given in the plaint in Suit No.438 of 1973.
Kristo Mohan Mullick - Sm. Gouri Bala Mullick (Died in April, 1936). (Defendant No.2) I I Kedarnath Dwarkanath Smt. Parbati Kashinath Lokenath Somnath (Plt No. 1) (Died 1957) (Plt No. 4) (Plt No.2) (Plt No.3) (Defdt No. 1) I I Sourendra Sabita Jostna (Plt No. 5) (Plt No.7) (Plt No. 6) The percentage of shares held by the co-sharers in 1973 is as follows:
Names and the respective shares of the PLAINTIFFS and DEFENDANTS Originally in the C.S. No.438 of 1973 and G.A. No.3325 of 2008 in the Hon'ble High Court at Calcutta are as follows:
(i) Shri Kedar Nath Mullick, Plaintiff No.1 1/6th Share
(ii) Shri Kashi Nath Mullick Plaintiff No. 2 1/6th Share
(Appellant No.1)
(iii) Shri Loke Nath Mullick Plaintiff No. 3 1/6th Share
(iv) Sm. Parbati Mullick Plaintiff No. 4 2/15th Share
(v) Shri Som Nath Mullick Defendant No.I 1/6th Share
/Respondent No.I
(vi) Sm Gouri Bala Mullick Defendant No. II 1/5th Share
Since some of the parties died, the respective heirs of the deceased included the following persons as legal heirs having percentage of shares and interest as in August, 2009 is shown below:
(A) Sm. Durga Mullick (5/30th ) (Inherited from Plaintiff no.2 Kedarnath Mullick and Jogomaya Mullick) (B) Sm. Jamuna Mullick & Ors (5/30th ) Sm Bani; Sm. Kaberi Sri Soumen Mullick, (Appellant No.1) (Inherited from Plaintiff no.2 Kashinath Mullick and as such jointly entitled to 1/6th share) (C) Sri Lokenath Mullick (5/30th ) Plaintiff no.3 (Inherited from Kristo Mohon Mullick as such entitled to 1/6th share) (D) Sri Souren Mullick (Appellant No.2) 4/30th share Plaintiff no. 4 (Sm. Sabita Mullick, Sm. Jyostna Dutta) (Inherited from Dwarikanath Mullick & Parbati Mullick as such jointly entitled to 4/30th share) (E) Sri Somnath Mulick (Respondent No.1) 11/30th share (Inheridated from Kristomohon Mullick 1/6th & Gouribala Mullick 1/5th) Jogmaya Mullick and Durga Mullick are the heirs of late Kedarnath Mullick, being his wife and daughter respectively. After Jogmaya Mullick died in September, 2007, Durga Mullick became entitled to 1/6th share of the late Kedarnath Mullick.
Dwarkanath Mullick died intestate in August 1957; his wife Parbati Mullick passed away leaving her son Souren Mullick (appellant No.2) and two daughters Sabita Mullick and Jyotsna Dutta. As a result, 1/6th share of late Dwarkanath Mullick devolved unto Parbati Mullick (since deceased), Souren Mullick, Jyotsna Dutta, Sabita Mullick and Gouribala Mullick (mother of Dwarkanath Mullick) in equal shares each having 1/38th share in the estate. After Parbati Mullick died, her share devolved unto Souren Mullick, Jyotsna Dutta and Sabita Mullick in equal shares as a result of which they held 2/15th share of the estate. Kashinath Mullick sold his undivided share in 245/1, Manicktalla Main Road, 21 Harihar Mullick (respondent No.9 herein). Lokenath Mullick inherited 1/6th share in the estate of Kristo Mohon Mullick. Somnath Mullick became entitled to 1/6th share in the estate of Kristo Mohon Mullick. On the death of Gouribala Mullick, his mother who, on the date of her death in December 1982, held 1/6th share from her husband and another 1/30th share inherited on the death of her son, Dwarkanath Mullick, and therefore held 1/5th of the total share in the estate. The events subsequent to filing of the suit are of some significance:
By consent to the parties, a preliminary decree was passed in the suit in September, 1973 declaring the shares of the parties and incorporated a term which read as follows:
"The Commissioners of partition shall divide and allot the properties to the respective parties according to their respective shares and interests stated in paragraph 1 hereof. In allotting properties to Gouribala Mullick the defendant No.2, the Commissioners of Partition should include a suitable portion of the dwelling house. The Commissioners of Partition shall have power to award owelty for the purpose of equalizing the value. In case of difference of opinion between the Commissioners of Partition the decision of Mr. R. Mullick will be final and prevail".
A preliminary decree by consent of the parties the shares were declared as follows:
a) Kedarnath Mullick 1/6th Share
b) Kashinath Mullick (Appellant No.1) 1/6th Share
c) Lokenath Mullick 1/6th Share
d) Souren Mullick (Appellant No.2) 2/30th =1/15th Share
e) Somnath Mullick (Respondent No.1) 1/6th Share
f) Kumari Jyotsna Mullick 1/30th Share
g) Smt. Sabita Mullick 1/30th Share
h) Stnt Gouribal Mullick 1/30th Share approximately
i) Smt Gouribala Mullick 1/6th Share having a life interest only as
a Hindu mother.
j) Harihar Mullick 1/5th Share in the premises no. 245-B
Manicktalla Main Road
After the preliminary decree was passed, by a Will dated 19th January, 1980, Gouribala Mullick bequeathed all her properties to Somnath Mullick (the respondent No.1) which was duly probated, as a result of which Somnath Mullick became entitled to 11/30th shares in the estate.
On 6th May 1979, after the consent decree was passed in the suit, the plaintiffs and the defendants and/or their representatives allotted the properties set out in paragraph 3 of the plaint by way of a family settlement, one of the terms of which was that a portion of the premises No.237 P/1B, Manicktalla Main Road, Calcutta-54 namely, plot No. P/1 would be allotted to Gouri Bala Mullick, the mother of the defendant No.1 Somnath Mullick. It was specifically recorded in the family settlement (Clause 5 thereof) that the other owners have no objection and have also agreed to partition between themselves the balance portion specifically shown in the plan prepared on 6th May 1979. By this family settlement Somenath Mullick was also allotted 4 cottahs of land in premises No. 237 P/1B, Manicktalla Main Road, Calcutta-54.
A second family settlement was entered into between the parties on 2nd April, 1980 by which it was agreed inter-alia that each party shall enjoy the respective plot allotted to him as absolute owner and shall have full power to transfer and deal with the same by letting out on lease in any manner without consent of the others; and that no one shall obstruct or cause hindrance to the same (Clause 1 of the family settlement). Clause 5 of this family settlement provided for inter-alia that the dwelling house at premises No. 237P/1B, Satin Sen Sarani, Kolkata-700054 "shall remain joint for the time being" and that Gouri Bala shall be allotted and shall accept a share therein in lieu of her 1/6th shares in premises No. 237P/1B, Satin Sen Sarani, Kolkata-700054.
After the parties agreed to amicably partition the properties by way of the family settlements, one of the co-sharers namely Jyotsna Dutt (nee Mullick), sister of Sourendra Mullick (the second appellant), filed an application challenging the allotment made by the parties after the preliminary decree. This application was disposed of by an order dated 22nd July, 2005. One of the reasons given for dismissing the application was that it could be inequitable and unjust to upset the settlement that was arrived at by and between the parties almost 25 years ago (from 22nd July, 2005, when the said Judgment was passed) and that further the parties have themselves made a branch-wise allotment of the properties and each branch continued to remain in exclusive possession of the properties allotted to them. The appeal preferred by Jyotsna Mullick from the above Judgment was disposed of by the Appeal Court by an order dated 14th August 2006 whereby the Commissioner of Partition was directed to adjust the equities so that each party gets the declared share in the joint family property.
Thereafter, owing to some of the plaintiffs having died as well as the death of the original defendant no. 2, namely, Gouribala Mullick, an application was moved on behalf of Somenath Mullick (the respondent no. 1 in this appeal) for alteration of the shares in view of the fact that Gouri Bala Mullick died intestate on 29th December, 1982 leaving her interest in the joint estate to Somenath Mullick. An order was passed in this application on 27th August 2009 by which the share of Somenath Mullick was enhanced to 11/30th of the joint properties and a Commissioner of Partition was appointed in place of the earlier Commissioner of Partition with a direction on the new Commissioner to implement the preliminary decree as modified by the order dated 27th August 2009. The Court further directed that the appointment of a valuer to value the properties allotted to the parties and that the receiver would also be empowered to take steps for determination of the owelty money, if required. Pursuant to the above direction, a Valuation Report was prepared and filed in this Court on 15th January 2011. In the report of the Commissioner of Partition, the total assets of the estate was valued at Rs.3,88,39,520.00 together with a valuation of the individual Lots. The Commissioner of Partition has further held that Durga Mullick, heir of Kedarnath Mullick is to pay an owelty money of Rs.17,00,495.00. Similarly the heirs of Kashinath Mullick being Jamuna Mullick, Soumen Mullick, Bani Mullick and Kaberi Boral are to pay owelty money of Rs. 1,54,326.00. Lokenath Mullick is to pay of owelty money of Rs. 2,72,294.00 and Sourendra Mullick, Jyotsna Dutta and Sabita Mullick, heirs of Dwarkanath Mullick are to pay the owelty money of Rs. 5,94,439.00. Only Somnath Mullick according to the report is entitled to an owelty money of Rs. 27,21,550.00 as indicated in the report. Till date no exception to this Report has been taken by any of the parties.
The impugned Judgment and decree dated 5th July 2017 from which the instant appeal arises, notices an order passed by a Division Bench dated 18th February 2016, the relevant portion of which has been set out in the impugned Judgment. The Division Bench, amongst other issues, notes that none of the parties filed any exception to the report of the Commissioner and that it can be presumed that delaying tactics are being adopted so that the final decree is not proceeded with. It has further been observed by the appeal Court that the parties ought to have been more diligent in deciding the final decree proceedings and their conduct had caused inconvenience and expense to the defendant no. 2 (the respondent No.1 herein), who is the lone fighter against the entire group.
The learned Single Judge has come to the following findings in the impugned Judgment:-
i) Sourendra Mullick and Soumen Mullick, the appellants herein, have challenged the allotment of properties without challenging the valuation made by the valuer.
ii) Sourendra Mullick and Soumen Mullick were aware of the order passed by a learned Single Judge amending the preliminary decree as suggested in paragraph -
18 of the petition filed by Somenath Mullick which inter alia provided that the defendant no. 1/Somenath Mullick would be entitled to 11/30th share in the estate of Kristo Mohon Mullick and the defendant no. 3 shall be only entitled to 1/6th share in the premises no. 245/1, Manicktala Main Road purchased by him by conveyance dated 23rd February 1970.
iii) Sourendra belongs to Dwarkanath Group, and has 2/45th share in the property, Soumen belongs to Kashinath Group and has 1/18th share in the property and Sarmilee belongs to Lokenath Group and has 1/6th share in the property.
iv) The co-sharers of Dwarkanath and Kashinath to which Sourendra and Soumen belong, have not challenged the Commissioner's report nor the valuation report.
v) Some of the co-sharers have sold their shares in favour of third parties.
vi) The substantive objection of Soumen and Sourendra appears to be that they were not served with the report of the Commissioner of Partition and could not therefore, raise any objection to the valuation.
vii) Soumen and Sourendra should have come with plausible grounds before upsetting the painstaking job undertaken by the chartered Valuer under the supervision of Commissioner of Partition.
viii) The present objectors, namely, Soumen and Sourendra are holding miniscule percentage of shares in the dwelling house and would be required to compensate Soumen Mullick/defendant/respondent no. 1.
ix) The recital to the second family agreement dated 2nd April 1980 records Gouri Bala (mother of the defendant/respondent No.1) relinquishing her interest in 237P/1C, Satin Sen Sarani and instead being allotted 1/6th share in the dwelling house.
x) The recital further records that premises No. 237P/1B, Satin Sen Sarani shall remain joint for the time being and not for all times to come as was sought to be argued by the plaintiffs (appellants herein).
xi) The principle of equalisation of shares would require the defendant No.1 to be compensated by the present objectors (appellants herein) who are holding miniscule percentage in the dwelling house.
xii) The objectors have opposed Somnath Mullick since the latter got the shares from Gouri Bala Mullick in respect of the dwelling house by which he became entitled to 11/30th share in the family properties.
Based on the above findings and primarily on the ground that the objectors, despite having had sufficient opportunity, did not produce any convincing or justifiable evidence to upset the findings of the Commissioner of Partition, the learned Single Judge was pleased to pass an order in terms of prayers (a), (b), (c) and (d) of the petition, namely, that the Report of the Commissioner of Partition dated 20th May 2011 filed with a Registrar Original Side, High Court be confirmed and final decree be passed in accordance with the schedules mentioned in the said Report. By the impugned order the learned Single Judge also directed Lokenath Mullick, Durga Mullick, Soument Mullcik, Jamuna Mullick and Sourendra Mullick to vacate the rooms in their respective occupation in premises No. 237P/1B, Manicktalla Main Road and hand over the same to Somnath Mullick (the respondent No.1). The learned Single Judge was also pleased to note that after the impugned order was dictated, one of the objectors wanted to pay the owelty money to the applicant and the objector was accordingly given liberty to take appropriate steps in this regard.
Mr. Debnath Ghosh learned Counsel appearing for the appellants primarily takes two points; the first is that in the application filed by respondent No.1, a prayer has been made for vacating the rooms occupied by Lokenath, Durga, Soumen, Jamuna and Sourendra Mullick in the dwelling house. Despite the prayer sought for, there is no prayer in the plaint for recovery of possession or for appointment of Commissioner of Partition for affecting partition of the suit properties by metes and bounds. Counsel argues that in the absence of any prayer for recovery of possession, no decree to such effect could have been granted by the learned Single Judge. Counsel refers to (2008) 17 SCC 491 for this proposition. The second point is that the premises No. 237P/1B, Manicktalla Main Road consists of a dwelling house, a rented house and is a joint property. It would appear from the family settlement dated 6th May, 1979 (the first family settlement) only 4 cottahs of land was allotted to Somenath Mullick the respondent No.1. In the second family settlement of 1980, it has been specifically agreed that the dwelling house at premises No. 237P/1B, Manicktalla Main Road consisting of a two storied building shall remain joint for the time being. Hence the exercise undertaken by the Commissioner of Partition and the valuer is vitiated as the same is contrary to the terms of the family settlement of 1980. Counsel relies on (1976) 3 SCC 119 (Kale and Others Vs. Deputy Director of Consolidation and others) for the proposition that a Court should lean in favour of a family settlement since members of a family seek to resolve their differences and disputes and bring about harmony in the family. A family settlement is covered by special equity and should be enforced. Counsel also relies on the ratio laid down in (2006) 8 SCC 531 (Hansa Industries Pvt Ltd. And Others Vs. Kidarsons Industires Pvt. Ltd) that implementation of a family settlement cannot be avoided on the ground of practical inconvenience. He also contends that the offer of payment of owelty money to the respondent No.1, as noted by the learned Single Judge was made without prejudice to the appellant's rights and contentions.
Mr. A. C. Kar, learned senior counsel appearing for the respondent No.1 (the defendant No.1 in the suit) submits that the shareholding of the appellant No.1 is 1/18th and that of the appellant No.2 is 2/45th, which shows that both the appellants have miniscule shares in the joint property and that the only relief sought for by them was a right of residence in the portion of the property which has been allotted to the respondent No.1 on payment of the value in accordance with the Valuation Report. He further submits that the appellants accepted their shares as stated in the Valuation Report and the fact that they are willing to pay for the price of the excess area being held by them as per the Valuation Report. Counsel submits that both the appellants have accepted the Valuation Report as done by the Commissioner of Partition and have also accepted the allotment stated therein.
In response to the contentions of the appellants that there is no prayer in the plaint for separate allotment of the joint properties, Mr. Kar submits that the plaint contains the prayers for a) declaration of the share of the parties and b) allotment of the properties to the respective plaintiffs according to their respective shares. Counsel relies on (1971) 3 SCC 607 (Prokash Chandra Mukherjee and others Vs. Saradindu Kumar Mukherjee of Choudhury Para Road, Barasat and others, where it has been held, inter-alia, that the claim for possession is embedded in a suit for partition. In the facts of that case the point that the plaintiffs had not asked for possession in the plaint was summarily rejected by the Hon'ble Supreme Court. It was held that the prayers in the plaint not only included a prayer for a preliminary decree for partition but for the appointment of a Commissioner for affecting partition of the property by separating the shares of the plaintiffs from those of the defendants in the suit property. According to the learned counsel, this showed that he plaintiffs were asking for demarcation of the portion of the property which should be their as a result of the partition and therefore, a claim for possession is embedded in this prayer.
In answer to the point that the family settlement provided that the dwelling house at premises No.237P/1C, Manicktalla Main Road/Satin Sen Sarani shall remain joint "for the time being" and that Gouri Bala shall be allotted and shall accept a share in the dwelling house in lieu of her 1/6th share in premises no. 237P/1C, Satin Sen Sarani, learned counsel argues that this clearly means that the aforesaid premises shall remain joint only for the relevant time when the family settlement was effected and not for all times to come, as is sought to be argued on behalf of the plaintiffs. Counsel refers to (1992) 3 SCC 576 for interpreting the phrase "for the time being" to mean, at the moment or at the existing position when the particular event occurred. This has also been the interpretation given by the learned First Court to the relevant clause in the family agreement. The next point taken by Counsel is that in a partition suit there cannot be allotment of particular rooms to a particular co-sharer specifically when the co- sharer has been allotted properties (other than the residential house in which he is seeking the rooms) according to his shares.
The findings arrived at by the First Court are required to be factually gone into. In our view, the conduct of the plaintiffs and their representatives (in the suit of 1973) in "ganging up" against the first defendant (the petitioner in G.A. No. 2542 of 2011 and the respondent No.1 before us) is an issue which would be fundamental in deciding whether the plea of the plaintiffs/appellants should have been entertained at all by the First Court. In this context besides the impugned judgment and decree, two further orders and the observations made therein are relevant. The first is an order dated 15th June 2015 passed by the learned Single Judge wherein the application filed by the defendant No. 1; whose application fell for decision before the learned Single Judge and an order was made therein in terms of prayers a) and c) of the application. By the said order the Report filed by the Commissioner of Partition was confirmed and final decree was directed to be passed in accordance with the Schedules mentioned in the said Report. The learned Single Judge also thought it fit to pass additional orders for sale of certain specified lots in the premises No. 237P/1B, Manicktalla Main Road and certain lots in premises No. 245P/1M, Manicktalla Main Road as mentioned in the Report of the Commissioner. The heirs of Lokenath Mullick and Soumen Mullick, the heirs of Jamuna Mullick and Sourendra Mullick were also directed to vacate the rooms in their respective occupation in premises No. 237P/1B, Manicktalla Main Road and hand over vacant possession thereof to the receiver who would, in turn, make over possession of the same to the plaintiffs.
It appears from the order dated 15th June 2015 passed by the learned Single Judge that on 25th August 2011 a discussion had been passed for filling affidavits. It further appears from the order on 15th June 2015 that despite the matter having being pending for four years, none of the parties, namely, the plaintiffs in the suit, had filed any affidavit to the application by reason whereof the matter had appeared as "as motion adjourned (unopposed)" before the learned Single Judge in June 2015. The learned Judge was also pleased to record that no explanation had been offered by the parties to the application for their inability to file affidavits as per the directions contained in the order passed on 25th August 2011 or within three years thereafter. The learned Single Judge had proceeded to pass orders as stated above since as in his view the matter could not be delayed any further. A subsequent order was passed in an application by the other co-sharers for recalling the earlier order of 15th June, 2015, which was refused on the ground inter-alia that since one of the co-sharers were represented on 15th June, 2015. According to the learned Judge, observed inter-alia that the applicant had taken a chance to have the matter re-heard despite failing to take any steps in the application filed by the defendant No.1 in 2011 in the said application. The learned Judge therefore refused to re-open and re-hear the parties. The Appeal Court order dated 18th February, 2016 while considering the challenge to the order dated 30th September 2015 made by the plaintiffs to the 1973 suit, was pleased to make the following observations:
"Subsequent to filing of the application none of the plaintiffs bothered to place-or-record their objections to the Report of the Commissioner of Partition or even with regard to why the final decree should not be passed as per the prayers made in the application of the first defendant; the failure on the part of the plaintiffs (the appellants before the Appeal Court) to take any steps to file their exception to the Commissioner's Report had definitely caused inconvenience and expense to the defendant No. 1 who is the lone fighter against the entire group"
The view of the Appeal Court has been reiterated by the learned Single Judge in the impugned judgment and in fact was a factor which weighed on the Court in rejecting the plea taken by the plaintiffs, that they should not be dislodged from the rooms which they continued to occupy despite the Report of the Commissioner of Partition which was not challenged. It is significant that the Valuation Report and Commissioner's Report are of May, 2011 and the plaintiffs have continued to be in possession of the disputed rooms till date. Besides the mandate of the principles of Partition and the decisions cited by the parties herein, it may not be out of place to assume that the plaintiffs accepted the allocation of properties mentioned in the schedules of the Report by their collective acquiescence and a blatant disregard of the orders passed by this Court.
The reason why it was imperative on the part of the appellants to have challenged the Report of the Commissioner and the Valuation Report is that both the Reports contain statements which reinforce the right of the respondent No.1 in the family properties including the dwelling house where the appellants and some of the other co-sharers are seeking to continue their occupation rights. A few of the salient features of the Commissioner's Report dated 20th May 2011 are these; the properties allotted to the respondent No.1 Soumen Mullick are set out and described as Lot E at page 14 of the Report and include the residential house at 237P/1B, Manicktalla Main Road/Satin Sen Sarani which has been valued at Rs.36,97,356.00. The total value of the share allotted to the respondent No.1 is Rs.1,15,18,605/-. The Commissioner has also taken into account the valuation of the properties and the shares of the parties for determining the owelty money payable and has recorded inter-alia that the respondent No.1 is entitled to 11/30th share of the estate property being Lot E; and that the respondent No.1 is entitled to owelty money of Rs.27,21,550/-. The Report further records that the owelty money is payable to the respondent No.1 by the other co-sharers namely Durga Mullick, Jamuna Mullick (mother of the appellant No.1), Lokenath Mullick and Souren Mullick (appellant No.2).
The Report of the Valuer appointed by the Commissioner of Partition dated 15th January 2011 also contains significant facts which are as follows:
a) The respondent No.1 entitled to 11/30th share in the family properties.
b) Lot E (allotted to the respondent No.1) contains a portion of the premises No. 237P/1B, Manicktalla Main Road (residential house) with a three storied building and that the interest of Gouribala Mullick has been bequeathed to the respondent No.1 by a registered Will duly probated. This land and residential house comes under the 11/30th share, right and interest of the respondent No.1.
c) The determination of owelty money upon the valuation of the right interest and share value of the respective heirs shows that Rs.27,21,550/- is receivable by the respondent No.1.
d) Durga Mullick, Jamuna Mullick (appellant No.1), Lokenath Mullick and Souren Mullick (the appellant No.2) will refund a total of Rs. 27,21,554/- to Somnath Mullick (the respondent No.1). the Report contains detailed valuation of the individual Lots allotted to the co-sharers including the appellants and the respondent No.1 herein and the manner in which the valuer has arrived at the valuation of such properties.
It is inconceivable that the appellants and the co-sharers supporting them despite having full knowledge of both the Reports filed in 2011, did not bother to take exception to any of the factual findings contained in the Reports. It is apparent that the Commissioner of Partition and the Valuer undertook a comprehensive enquiry to come to the aforesaid findings which remained unchallenged for four years until the respondent No.1 filed the application for final decree based on such Reports.
The Appeal Court's observations on the conduct of the other co-sharers (including the appellants herein) have been stated above and are not necessary to be reiterated. What is significant is that the appellants did not show any interest or promptness in refuting the statements made by the respondent No.1/Somnath Mullick in his application with regard to their handing over possession of the concerned premises. The inexplicable silence on the part of the appellants is all the more surprising since the relief sought in the respondent No.1's application were final in nature in that a prayer had been made for drawing up a decree in terms of the Report of the Commissioner of Partition dated 20th May, 2011. It is indeed curious as to why the appellants did not even take exception to the Report of the Commissioner of Partition and the Valuation Report even when it had a direct bearing on the appellants' right to occupation of the concerned premises. It is only after the directions passed by the Appeal Court on 18th February 2016 that the appellants and the other co-sharers filed affidavits to the application of the defendant No.1. Upon consideration of such affidavits, the learned Single Judge was pleased to hold that the appellants have not challenged the valuation made by the valuer or the order passed by this Court on 27th August 2009, by which a significant modification was made to the preliminary decree in that inter-alia the respondent No.1 would be entitled to 11/30th share in the estate of Kristo Mohon Mullick. This modification had been necessitated after the two family settlements which had been entered into by all the co-sharers after passing of the preliminary decree. The plea taken by the appellants that they were not aware of the proceedings leading to the order dated 27th August, 2009 (by which the preliminary decree was amended) was also rejected by the learned Single Judge on inspection of the original records produced by the department which showed that the notice of motion of the concerned application had been duly served upon the advocate representing the appellants.
We find no reasons or any other material to take a different view on the conduct of the appellants in showing an utter indifference in protecting their rights over the subject premises. We fail to see how this Court can come to any other finding in favour of the appellants when there is no real challenge to the Valuation Report of 2011 or any attempt to show that the Valuation Report should be disregarded in view of any subsequent arrangements arrived at by all the co- sharers which would have the effect of negating the rights of the respondent No.1 in relation to premises No. 237P/1B, Manicktalla Main Road. It may also be relevant to mention that the other co-sharers of the group to which the appellants belong, have also not challenged the Commissioner's Report nor the Valuation Report and have in fact sold their shares in favour of third parties. Although we agree with the principles laid down with the ratio of the decisions cited by Counsel for the appellants, with regard to sanctity of family settlements, it may be pointed out however, that in Kale, the Hon'ble Supreme Court was only considering whether a person could be assumed to have antecedent title to a particular property in the event of relinquishment of that particular property by a party to a family arrangement in favour of the former. In that case, the Hon'ble Supreme Court also laid down that a family arrangement would operate as an estoppel by preventing the parties who have taken advantage of such arrangement to resile from the same. In Hansa Industries, the Hon'ble Supreme Court disagreed with the decision of the Delhi High Court and observed that the latter could not have exercised its discretion to determine allotment of properties where the allotment had been settled between the parties by way of a family Partition. In Hansa Industries, the Hon'ble Supreme Court further held that there was no scope of adjusting allotments on the ground of practical inconvenience when a particular Clause of the settlement was unambiguous and was not vitiated by fraud or illegality. None of the aforesaid cases involved facts which can be equated with the matter before us. In the instant case, the appellants are not asking for enforcing the two family agreements; they are in fact urging the Court to selectively look at the first family agreement of 1979 and choose only Clause 5 of the agreement of 1980. This pick and choose stand is not one which is the subject matter of the family agreements taken together, but one which only serves the interest of the appellants. Secondly, unlike the decisions relied on by the appellants, in the instant case, orders have been passed by this Court by which a Commissioner of Partition has been appointed to file a report with regard to allocation of the family properties and a Valuer was also appointed to file a valuation report with regard to such properties. In our view, these are significant events subsequent to the family arrangements; a fact wholly absent in the aforesaid decisions. In fact in Kale, the Hon'ble Supreme Court had noticed that none of the respondents had raised the issue that the settlement was not bona fide in the Courts below. The conduct of the appellants in this case can be said to be somewhat similar in failing to take any exception to the Report of Commissioner or the Valuation filed in 2011. We agree with the submission of Counsel appearing for the respondent No.1 in relation to Prokash Chandra Mukherjee, where the Hon'ble Supreme Court held that where the prayers in the plaint include one for appointment of a Commissioner for effecting partition of the property, it can be said that the plaintiffs were asking for demarcation of the property concerned and a claim for possession is embedded in such prayer.
The next issue is whether the appellant Nos.1 and 2 having 1/18th and 2/45th respectively of the shares in the properties can at all throw a challenge to the respondent No.1 who admittedly holds 11/30th of the family property. The aforesaid allocation had its genesis from the family settlements of 1979 and 1980 and subsequent dealers of co-sharers culminating in the Commissioner's Report which had not been challenged by any of the warring groups, namely, Kashinath Mullick (represented by Soumen - appellant No.1), Dwarkanath Mullick (represented by Sourendra - appellant No.2) and Somnath Mullick (the defendant No.1).
We do not also find any error in the reasoning of the First Court in confirming the stand taken by the Commissioner of Partition and the Valuer. The question raised by the appellants before the learned Single Judge was that whether the dwelling house was intended by the co-sharers to remain joint at the relevant point of time or for all times to come. The latter family agreement particularly Clause 5 thereof concerning the family dwelling house makes it clear that the said property would remain joint only for the time being, subject to other events taking place. It is an admitted fact that several orders have been subsequently passed on applications filed by some of the co-sharers and also pursuant to the deaths of some of the parties to the suit. The orders included appointment of a Commissioner of Partition for adjusting the equities so that each party gets the declared share in the joint family property. Pursuant to the Reports of the Commissioner of Partition and the Valuer, it is evident that the family dwelling house at Premises No. 237P/1B, Manicktalla Main Road/Satin Sen Sarani cannot be seen to have remained a joint property, as is sought to be now urged by the appellants. The fact that the respondent No.1 has been allotted this portion of the dwelling house upon payment of the value as indicated in the valuer's report is an important factor. Secondly, the fact that the appellants have categorically stated that they are willing to pay for the price of the area which they are holding in excess to that as stated in the Valuation Report is also significant.
For these reasons, we uphold the judgment and decree passed by the learned Single Judge and hold that the appeal is liable to be dismissed. The directions passed by the learned Single Judge in terms of the prayers made in G.A. No.2542 of 2011 are confirmed. The surviving heirs of Lokenath Mullick and Jamuna Mullick including the appellants before us are directed to vacate the rooms in their respective occupation within two months from the date of communication of this judgment and order. The directions given by the learned Single Judge in relation to the specific Lots in the Manicktalla Main Road premises shall remain subject to the Commissioner complying with the said directions and remuneration being paid to the Commissioner as directed by the First Court. This liberty shall not however operate as a stay of the directions passed by us.
The appeal and the connected application stand dismissed accordingly. There shall, however, be no order as to costs.
Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the parties on a priority basis.
(MOUSHUMI BHATTACHARYA, J.) (BISWANATH SOMADDER, J.)