Calcutta High Court
Sukhendu Bikash Addy vs Bipin Behari Addy And Ors. on 23 July, 2001
Equivalent citations: AIR2002CAL60, AIR 2002 CALCUTTA 60, (2002) 1 HINDULR 254, (2002) 1 ICC 823, (2002) CAL WN 664, (2001) 3 CAL HN 518
Author: D.K. Seth
Bench: D.K. Seth
ORDER D.K. Seth, J.
1. In 1987, a suit for partition was filed in respect of a property known as Addy Estate. On 7th of February, 1994 the properties in Premises Nos. 56 and 58, Chetla Road, Calcutta was put up for sale by public auction. One Amal Roy was the highest bidder. The sale was confirmed for a sum of Rs. 7,25,000/-. On 23rd February, 1994 an apparent mistake in the Order with regard to the time limit for deposit of the amount was corrected as six weeks. An application was made by one Hiralal Dutta who was the second highest bidder for recalling the order dated 23rd February, 1994. On 21st March, 1994 the said Amal Roy had deposited the entire bid money. On 19th of June, 1995 the application made by Hiralal Dutta was rejected. An appeal was preferrd by Hiralal Dutta which was dismissed on 26th November, 1997. The Special Leave Petition against the same was dismissed on 20th February, 1998. On 9th April. 1998 the said Amal Roy submitted the draft conveyance to the Joint Receivers for fixation of a date for registration. On 27th May, 1998 the said Amal Roy called upon the Joint Receivers to hand over possession. On 3-6-1998 Joint Receivers informed Amal Roy that until the draft conveyance was executed possession cannot be delivered. On 1-8-1998, three of the Joint Receivers informed that they had approved the draft conveyance but one of the Joint Receivers refused to approve the same because Mrs. Priya Dutta, wife of Hiralal Dutta had written to the Joint Receivers enclosing two orders passed by this Court On 31st of March. 1998 and 28th of July, whereby the respondents were restrained by an order of injunction from parting with possession.
2. Thereafter the defendant/respondent No. 2. Akshay Kumar Pyne has filed GA No. 1746 of 1999 for sale of these properties in his favour. The defendant No. 2 happens to be the husband of Smt. Anjali Pyne, since deceased, daughter of one of the deceased member/co-sharer of Addy family through whom she became a co-sharer. Mrs. Priya Dutta, wife of Hiralal Dutta is one of the daughter of Akshay Kumar Pyne. defendant No. 2 and Smt. Anajali Pyne, since deceased, through whom the formers are claiming to be co-sharers. The said Mrs. Priya Dutta is respondent No. 3 in the proceedings.
3. In GA No. 3749 of 2000 the Plaintiff Sukhend Bikash Addy and Chiraranjan Addy, the defendant No. 23 prayed for leave to act as Joint receivers of the properties in the suit in connection with GA No. 3028 of 1999.
4. In the circumstances the said Amal Roy filed an application to intervene in the suit in February. 1999. On 8th March, 1999 leave was granted to the said Amal Roy to Intervene with direction to the Receiver to execute the conveyance within four weeks. On 28th April, 1999, the Court extended the time for executing the conveyance. On the same date, an order was passed directing maintenance of status quo with regard to the sale until further orders. On 3rd May, 1999 Joint Receivers informed the petitioner about the Order dated 28th April, 1999. On 7th May, 1999 the Court directed the execution of the conveyance in terms of the earlier Order in another proceedings. Thus, on 14th July, 1999 the said Amal Roy has made this application for vacating the ad interim order of status quo passed on 28th April, 1999. It is this GA No, 3028 of 1999 which is being heard. Counsel for the parties have made their respective submissions in respect of the merits of the case as well.
5. G.A. No. 3028 of 1999 is the application made by the said Amal Roy. Now the question arises as to whether the interim orders should be vacated or not.
6. In order to decide the said question the merits of the respective cases made out by the respective parties are to be gone into. Virtually the vacation of the interim order is dependent on the decision on the application made by the defendant No. 2 being G.A. No. 1746 of 1999. However at this stage no order need be passed on G,A. No. 3749 of 2000 in view of the fact two of the learned Advocates of this Court have since been appointed receiver. Therefore by consent of the parties G.A. No. 1746 of 1999 and G.A. No. 3028 of 1999 are taken up together for disposal treating them as such on day's list.
7. Mr. Shibdas Banerjee, learned counsel for the Respondents Nos. 2 and 3 has submitted that the respondent No, 2 is one of the co-sharers and as such is entitled under Section 3 of the Partition Act to purchase the property. But in this case the provisions of Section 3 was not complied with and as such the order confirming the sale, being void and a nullity, should be recalled or modified. Therefore, it is only on this ground the interim order cannot be vacated until the said application is disposed of. Mr. Akshay Kumar Pyne, respondent No. 2 had made an application being G. A. No. 1746 of 1999 praying for sale of the said property to himself and for modification of the earlier orders of sale in favour of the said Amal Roy. According to respondent No. 2, Section 3 of the Partition Act. 1893 requires a valuation. But no such valuation was ever made before putting up the property for sale. Neither the defendant No. 2 nor the respondent No. 3. Mrs. Priya Dutta had ever been given any opportunity under Section 3. Whenever a property is sold under Section 2, every co-sharer has a right to purchase the same. In the present case, the defendant No. 2 was a little late but that will not prevent exercise of his rights under Section 3 even if sale had taken place- Section 3 gives an overriding right to a co-sharer when it is so exercised. Even if there is a sale, the same has to be set aside particularly when there was an infraction of Sections 2 and 3 viz : the respondents Nos. 2 & 3 never consented to the sale of the properties under Section 2 and, even assuming but not admitting their consent would not be material, even then there has been infraction with regard to valuation of the property as contemplated in Section 3. No third party claim can defeat the right of a co-sharer under Section 3. The said Amal Roy can claim no right by virtue of a sale in violation of Sections 2 and 3. Such sale is a nullity even though such sale might have been confirmed. Confirmation of a void sale is non-est, void ab initio and a nullity. Therefore the sale should be set aside and the property be sold to the respondent No. 2 in terms of Section 3 of the Act.
8. Mr. Jayanta Mitra, on the other hand, appearing on behalf of Amal Roy, contends that Section 2 of the Partition Act makes it incumbent on certain conditions sale of Joint properties. In the present case it is not disputed that this property was put to sale. But till the sale was confirmed there was no application under Section 3 by any of the co-sharers. According to him, the stage of Section 3 ends as soon as the property was put to auction. The question of valuation is material when the right under Section 3 is exercised before the property is put to auction and the sale is confirmed but not after. Once the sale had taken place under Section 2, right under Section 3 cannot be exercised. He further points out that Hiralal Dutta, husband of Mrs. Priya Dutta and son-in-law of respondent No. 2 was an unsuccessful bidder in the sale. Therefore they cannot deny knowledge of the sale. The respondents Nos. 2 and 3 had every right to apply under Section 3 before the sale had taken place or even at the time when the sale was fixed and was going to be conducted. This process has not been adopted. On the other hand Hiralal Dutta participated in the auction but could not succeed. The matter was taken upto the Apex Court unsuccessfully. Till that time right under Section 3 was not exercised by the respondents No. 2 and 3 who were in fact fighting through Hiralal Duta, though it was so open to them. If one allows the opportunity to slip off the hands; he cannot turn on it by reason of the principles of waiver acqulesence and estoppel. According to him, this question cannot be gone into now. Therefore, G.A. No. 3028 of 1999 should be allowed and G.A. No. 1746 of 1999, should be dismissed with cost.
9. Mr. Banerjee in his reply has contended that the respondent No. 2 has an independent right as co-sharer. Whereas Hiralal Dutta, may be the son-in-law of the respondent No. 2 and husband of the respondent No. 3, had participated in the proceedings as a stranger. Therefore participation of Hiralal Dutta does not bind them. Therefore their application G.A. No. 1746 of 1999 should be allowed and that of Amal Roy G.A. No. 3028 of 1999 should be dismissed.
10. I have heard the respective Counsel for the parties at length. The question is now confined to the question of law as to whether the respondent No. 2 as co-sharer can still exercise right under Section 3 after the sale is confirmed in terms of Section 2 of the Partition Act, 1893. Whether there was a consent or not in respect of putting up the property to sale is immaterial at this stage. The respondents Nos. 2 and 3 are claiming through Smt. Anjali Pyne, since deceased, either the said Smt. Pyne, since deceased, or the respondents No. 2 and 3 on being substituted on the formers death, were parties to the suit. There is nothing to show that either the deceased Smt. Pyne or the respondent No. 2 or 3 had ever objected to the sale under Section 2 or had withdrawn consent. At one point of time Mr. Banerjee had contended that might be the respondents Nos. 2 and 3 were not parties when the decision for sale under Section 2 was taken. Be that as it may, unless it is shown that there is something on record from which it is possible to conclude absence of consent by the respondents Nos. 2 and 3 or their predecessor in interest, the question can no more be opened. Then again it is too late a state when the said respondents were sitting on the fence waiting the outcome of their venture through Hiralal Dutta.
11. Admittedly, there was a sale and the sale had taken place in which Hiralal Dutta had participated unsuccessfully and Amal Ray was the successful bidder. The sale had already been confirmed and Hiralal Dutta made allout attempt to get that order set aside unsuccessfully. Now, the respondent No. 2 has come to exercise his right under S. 3 of the said Act. Thus the conduct of the respondents No. 2 and 3 surely attrach the application of the principles of waiver acquiesence and estoppel.
12. A plain reading of Ss. 2 and 3 of the said Act will make the position clear. It would be beneficial to quote Sections 2 and 3 respectively hereunder :--
"2. Power to Court to order sale instead of division OA in partition suit.-- Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made. It appears to the Court that, by reason of the nature of the property to which the suit relates, or of the number of shareholders therein, or of any other special circumstances, a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders, the Court may, if it thinks fit, on the request of any of such shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and distribution of the proceeds.
3. Procedure when sharer undertakes to buy-- (1) If, in any case in which the Court is requested under the last foregoing section to direct a sale, any other shareholders applies for leave to buy at a valuation the share or shares of the party or parties asking for a sale, the Court shall order a valuation of the share or shares in such manner as it may think fit and offer to sell the same to such shareholder at the price so ascertained and may give all necessary and proper directions in that behalf;
(2) If two or more shareholders severally apply for leave to buy as provided in Sub-section (1), the Court shall order of sale of the share or shares to the shareholder who offers to pay the highest price above the valuation made by the Court.
(3) If no such shareholder is willing to buy such share or shares at the price so ascertained, the applicant or applicants shall be liable to pay all costs of or incident to the application or applications."
13. The languages used in the above provisions are clear and explicit and there is no ambiguity in the same. Section 2 empowers the Court to order sale Instead of division whenever a property cannot be divided or it would be beneficial for all the shareholders. In terms of Sub-section (2) the property was put to sale. It was not open to this Court to go behind the same after the sale is confirmed as to whether there was consent or not or as to whether the respondents No. 2 or 3 was a party to the consent or not. It is no more open to contend that the respondent No. 2 or 3 had not given consent and. therefore, they are not bound by the said sale.
14. That apart the exercise of power under Section 2, is a power conferred upon the Court. When the Court is satisfied about the contingencies provided therein it can order for sale on the request of any of the co-sharer having a moity or upwards share individually or collectively. It is not dependant on the consent of all the parties or on the objection of one or the other. Even if absence of consent by the respondents No. 2 and 3 or their predecessor is assumed that will not make any difference. Even if objected to if the Court is satisfied with the contingencies provided therein it is competent to direct sale. So long the said order stands this Court has no jurisdiction either to sit on appeal or revision of such order. However Section 3 protect rights of such co-sharer who might have objection to it. However apart from respondents Nos. 2 and 3 no other co-sharer is opposing the sale. Even then and order for sale under Section 2 is a decree in view of Section 8 of the Act. They could have preferred appeal against the said order, but which they did not. Therefore it is now no more open to challenge the same which by now has reached its finality.
15. As it appears from Section 2 that such property is to be sold and the proceeds thereof are to be distributed among the shareholders. However, Section 3 makes a special provision in favour of the shareholders. In case any of the shareholders offers to purchase such property, in that event, it is the duty of the Court to get the property valued and after the price is so ascertained, the same may be sold to such shareholder without putting the property to sale in any manner including public auction. Auction for sale is to be held under Section 2 and not under Section 3. Section 3 is a special provision making some special right available to a shareholder to purchase the property without an auction on the basis of the valuation made. In case the two or more of the shareholders apply to purchase, in that event, the highest price offered above the valuation made by the Court is to be accepted.
16. Section 3 comes into play before the property is put to sale. As soon as there is a decision that the property is to be sold, but not before. Section 3 becomes applicable and it is open to any of the co-sharers to apply under Section 3. If no such application is made under Section 3, then the Court is empowered to put the property into sale. Once the property is put to sale and the sale is confirmed, Section 3 remains no more operative. The right under Section 3 cannot remain open for ever. It is a particular time span within which it is to be exercised. It is to be exercised before the property is put to sale through auction or before the property is sold in auction at the latest. In the present case until the property was sold and the sale was confirmed, there was no application under Section 3. Therefore, Section 3 cannot be attracted after the sale is confirmed. The absence of valuation in such a case is immaterial and cannot be deemed to be an infraction for setting aside the sale.
17. Thus the sale is neither non-est nor void ab initio nor a nullity as contended by Mr. Banerjee.
18. When Section 2 is resorted to then the Court has to proceed according to Section 3. If there is no application under Section 3 in that event the sale is to be made through public sale. It was so held in Haricharan v. Fakir (1936) 40 Cal WN 955 and Sayaykaran v. Perumai AIR 1937 Madras 448 (sic). But a sale under Section 3(2) is not a public sale. By reason of Section 8 of the Partition Act an order or decision for sale under Section 2 shall be deemed to be a decree within the meaning of the Code of Civil Procedure. According to the Calcutta view as soon as application under Section 3 is made the decree will automatically disappear. But once the sale is effected without any application under Section 3 being made, the order of sale becomes a decree, which can be set aside only on appeal or under Order 9, Rule 9 or 13 being the appropriate proceedings. This view may find support In Nitish Chandra v. Promod Kr., ; and Maniklal v. Pulin, . Same view was taken in Chiranjilal v. Hardwarilal, ILR (1964) 2 Punj 321; and Baldeo Das v. Kishanlal . Once the sale is directed under Section 2 and no application under Section 3 is made then the sale is to be effected according to Section 6. There is nothing to show that Section 6 was not complied with when the present order was passed. On the other hand it shows there was a reserve price. The procedure for sale is provided in Section 7. It is not alleged that there was any infraction of Section 7.
If any sale is directed under Section 3 then it is to be held first in accordance with Section 3, if any of the co-sharers apply under the said Section. If there is no application under Section 3 then such sale is to be conducted according to Section 6 following the procedure as contemplated in Section 7. A sale under Section 2 which is conducted under Section 6 is to be a sale by public auction. It was no held in Gadadhar Ghosh v. Janakinath, . By reason of Section 8 a sale made under Section 2 being a decree within the meaning of Section 2 of the Code of Civil Procedure the same is not open to challenge except in the manner a decree can be challenged. This view may find support in Hussain Sab, Imam Sab, Ballekkal v. Veerbhdrappaa Mallappa Culedgud, . Section 7 of the Partition Act recognises the distinction between sale under this Act and sale is execution of decrees. Since an order under Section 2 is a deemed decree it can be set aside only through appeal or by such manner as a decree can be set aside. We may find support from Unnimadhavan v. Rugmini Pallikkaramma 1980 KLT 892 and Nalappa Gounderv. Lakshmi, . Thus, after the sale is confirmed the same cannot be altered simply on the basis of an application for direction to sell the property to the respondent No. 2, and for modification of the order confirming the sale.
19. Thus, the petitioner cannot now claim that the property be sold under Section 3 after that stage has expired.
In the circumstances, the respondent No. 2 cannot claim any right for sale under Section 3 in the present case once the sale stands confirmed.
20. Therefore, G.A. No. 1746 of 1999 stands dismised. The interim order granted therein stands automatically vacated. Therefore, G.A. No. 3028 of 1999, the application of Amal Roy stands allowed.
21. A prayer was made for continuation of the interim order for a limited period in order to enable the applicant respondents Nos. 2 and 3 to prefer an appeal against this order.
22. The Joint Receivers shall execute and register the Deed of Conveyance within a fortnight from date. So far as the handing over of possession of the property in question is concerned, the same will remain stayed for a period of a fortnight from date after which the possession of the property is to be handed over by the Joint Receivers to Amal Roy. During the period of stay Amal Roy shall not create any third party interest in respect of the property in question.
23. All parties concerned including the Joint Receivers are to act on a Xeroxed signed copy of this Dictated Order on the usual undertaking.