Rani Aloka Dudhoria & Ors vs Goutam Dudhoria & Ors

In the meantime, however, KCSD, died on 16.12.1980 leaving behind defendants No. 2 to 6 as his heirs and legal representatives. 4

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 `A' 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 encumbrances in respect of the properties. After some discussions, the Joint Commissioners of Partition inter alia issued the following directions :

It, however, appears that during the period 11.06.1984 and 7.07.1991, i.e., for a period of about seven years, no demarcation in respect of lot `A' and lot `B' properties had taken place. No step was taken by any of the parties to purchase the said properties, one way or the other. The 12 question cropped up again before the Commissioner, in a meeting held on 7.07.1991, wherein on behalf of the appellants, Amita, Appellant No. 4 participated.

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 professional people, the parties should cooperate. It was directed:

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 division and disposal of the three properties 14 was still hanging; and the properties being in a dilapidated condition require repairs and furthermore tax liabilities were mounting.

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 16 and 6. According to the appellants, plaintiff - appellant No. 1 herein was unwell and away 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 Amita, plaintiff No. 4. It, however, appears that Shri A.P. Aggarwal appeared and sought for adjournment 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. Amita had shifted her residence from 48, Gariahat Road, Calcutta to 48/2B, Gariahat Road, Calcutta.

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 M/s. Rajesh Khaitan & Co. intimating him about holding of the meeting on 8.05.1997. According to the appellants, Mr. Anand 17 Aggarwal did not inform them despite having knowledge as regards the changed address and contact numbers. In the said meeting, however, Seema participated. She appeared with advocate Anand Aggarwal.

On 2.12.1997, Amita agreed to pay Rs. 20 lakhs in response to the defendants' offer and sought for six months' 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:

Terms of settlement between the parties were considered. Some changes were proposed. The agreed terms were signed by the parties on 28.01.1999. Amita offered a sum of Rs. 21 lakhs. An objection was raised on behalf of Goutam and Sidharth that Amita 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.

It may not, therefore, be correct to contend that the provisions of the Partition Act were not attracted.

We may quote with approval the meaning of the term `owelty' :-

A large number of circumstances had further been brought to our notice to establish collusion and fraud. We may notice some of them.

Sheema Dudhoria had shown an unusual interest in attending the meetings allegedly without instructions from other plaintiffs. Even Anand Agarwala, 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.

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 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 63 conditions stipulated in regard to the sale of the property dated 8th May, 1977.

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 64 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] For the views we have taken, it is not necessary for us to go into the questions of fraud and collusion in details. The 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:-

The appeals are allowed with the aforementioned directions. There shall be no order as to costs.