Rani Bala Bose v. Hirendra Chandra Ghose — 1948 DIGILAW 86 (CAL)

JUDGMENT Chakravarti, J. - I have taken time to consider this matter, not because I was in doubt as to the facts, but because certain questions of law and practice were raised on which Judges of this Court seemed to have taken divergent views. On a closer examination of the cases, it appears that there is no divergence so far as the actual question before me is concerned. The questions have arisen out of an application made by one of the Defendants in a partition suit for various reliefs with respect to a sale held by the Commissioner of Partition. Actually, there is no application and what was done was that a summons was taken out upon an affidavit sworn on behalf of the Defendant concerned. The impugned sale took place on the 21st April, 1947, when about 14 bighas of garden land, together with a structure and two tanks thereon, situated at Behala in the suburbs of Calcutta, were sold for a sum of Rs. 25,500. 2. Fortunately, there is little dispute as to the facts. They are practically all matters of record and, according to the record, stand as follows: 3. One Greesh Chunder Ghose, a Hindu inhabitant of the town of Calcutta, died on the 4th October, 1887, leaving behind him five sons and a considerable estate. In 1941, by which time the number of his heirs had greatly increased, a suit for a partition of his estate was brought by one Rani Bala Bose and two others, who were the representatives of one of the sons, and in that suit a preliminary decree was passed on the 27th February, 1943. The decree declared the representatives of each of the sons of Greesh to be jointly entitled to a 1/5th share of his estate and directed the properties to be partitioned into five equal parts or shares. The decree declared the representatives of each of the sons of Greesh to be jointly entitled to a 1/5th share of his estate and directed the properties to be partitioned into five equal parts or shares. A member of the Ear was appointed Commissioner of Partition as also Receiver and special provisions were made in the decree with regard to the immovable properties in the following terms:--- And it is further ordered and decreed that the said Commissioner do sell the immovable properties belonging to the estate of Greesh Chunder Ghose (hereinafter referred to as the said immovable properties) either by private treaty or by public auction to the best purchaser or purchasers, subject to a valuation to be made by a competent surveyor to be appointed by the said Commissioner; And it is further ordered and decreed that for the purpose of such sale by public auction the said Commissioner shall be at liberty to insert such advertisements in such papers as he thinks fit; And it is further ordered and decreed that the parties are at liberty to bid at such sale on such terms as to, non-payment of deposit or as to setting off or accounting for the purchase money or any part thereof instead of pacing the same as the said Commissioner shall direct; And it is further ordered and decreed that all the proper parties do join in and execute a proper conveyance or conveyances of the said immovable properties in favour of the purchaser or purchasers thereof--such conveyance or conveyances to be settled by the Commissioner of Partition--such conveyance or conveyances to be executed and caused to be registered by him for and on behalf of the infant parties and also on behalf of the adult party or parties refusing or neglecting to do so. 4. The immovable properties of the estate consisted of two items, the ancestral house of the parties situated at 20, Baranashi Ghose Street and some garden and paddy lands situated at Behala. The garden lands appertain to three holdings, Nos. 80, 94 and 87, Jadab Ghose Road, the last of which has upon it a partly one, partly two and partly three-storied building as also two tanks. 5. The garden lands appertain to three holdings, Nos. 80, 94 and 87, Jadab Ghose Road, the last of which has upon it a partly one, partly two and partly three-storied building as also two tanks. 5. After the Commissioner had taken up his duties, it was agreed between the parties that the Baranashi Ghose Street properties should be sold first and after protracted deliberations, the property was ultimately sold by public auction on the 23rd June, 1945. Prior to the sale, the Commissioner held 32 meetings of the parties at which every matter arising in connection with the proposed sale was thoroughly discussed and a question having arisen as to the mode of sale, directions from the Court were obtained. The safe itself was held in the presence of the solicitors for all the parties. 6. The question of the sale of the Behala properties was taken up next at a meeting of the parties held on the 27th June, 1946. Previously, in 1943, two offers had been received for Holding No. 87, one of Rs. 4,500 and another of Rs. 15,000 and those having been placed before a meeting held on the 15th September, 1943, it had teen decided to postpone, their consideration. When the question of the, sale of the Behala properties was revived in 1946, same of the parties began to suggest that instead of being sold, the properties should be partitioned and they declared that they would be prepared to buy up the shares of parties who might not be agreeable to a partition. Others, however, insisted that the properties should be sold as directed by the decree and among them the most insistent was the Petitioner. Broadly speaking, the parties who expressed a desire for retaining the Behala properties by a partition were those who had been dislodged from the family dwelling-house, while those who insisted on a sale were daughters of the family who had their residences elsewhere. The matter went on drifting for a considerable time, solicitors for the parties who wanted a partition representing to the Commissioner at successive meetings either that negotiations with parties who wanted a sale were proceeding and had not been completed or that they had no instructions. The matter went on drifting for a considerable time, solicitors for the parties who wanted a partition representing to the Commissioner at successive meetings either that negotiations with parties who wanted a sale were proceeding and had not been completed or that they had no instructions. The solicitor for the Plaintiffs and the Petitioner, on the other hand, continued to insist with growing impatience that there ought not to be any further delay and the Commissioner should proceed to sell the properties. Nothing definite was, however, done and meetings held on the 27th June, 1946, and the 15th January, 21st February, and 28th February, 1947, all ended in the same way, that is to say, inconclusively. On the last-mentioned date, the Commissioner placed before the parties an offer of Rs. 25,000 which he had received and while adjourning the meeting to the 11th March following, directed the parties to send in higher offers, if they could procure any, by the 10th March. Previously, he had discussed with them the mode of sale. What is noticeable in the proceedings of these meetings is that with regard to every matter, the Commissioner was proceeding by consultation with the parties and though somewhat exasperated, he was always deferring to the wishes of the majority and granting them further and further time. 7. On the 11th March, 1947, the matter entered upon a more active stage and since the decision of the case depends upon what took place on that date and, thereafter, the events require to be set out in greater detail. On the 11th March, the parties were respectively in the same state of mind as before. The mode of sale was again discussed and one concrete suggestion emanated from the solicitor for one of the parties which was that since some of his clients were minors, some kind of advertisement should be published in the papers before any private offer was accepted. The solicitor for another party asked for further time and a third stated that he had had no instructions since the last meeting. The Plaintiffs' solicitor objected to any further adjournment and suggested that the offer of Rs. 25,000 which was for the garden lands only, should be accepted. Towards the end of the meeting, the Commissioner exhibited a degree of firmness he had not shown before. The Plaintiffs' solicitor objected to any further adjournment and suggested that the offer of Rs. 25,000 which was for the garden lands only, should be accepted. Towards the end of the meeting, the Commissioner exhibited a degree of firmness he had not shown before. He declared that the lands at Behala would be sold by private treaty and he would insert proper advertisements in the papers, once in the Sunday Amrita Bazar Patrika and once in the Ananda Bazar Patrika on a week-day, preferably at an interval of one week. He directed Mr. A.N. Das, the solicitor for the Plaintiffs, to circulate a draft advertisement among the parties and adjourned the meeting to the 14th March. 8. Pursuant to the above directions, Mr. A.N. Das circulated a draft advertisement among the solicitors for the parties. In the covering letter which was dated the 12th March, he stated that it was necessary to settle the abstract of title and the conditions and the notification of sale before the sale notice was issued for publication and he requested the parties to send to him any documents relating to the properties which might be in their custody so that he might complete the abstract of title. 8. At the meeting held on the 14th of March, the majority of the parties asked the Commissioner not to proceed with the sale and prayed for a further adjournment in order that they might yet come to a settlement with their recusant co-sharers and make an application to the Court for an amendment of the decree. The solicitor for the Plaintiffs insisted that any adjournment granted must be peremptory and he placed before the meeting the abstract of title, the conditions and the notification of sale and the sale notice. The Commissioner directed the parties to make an immediate inspection of the documents and granted time till the 28th March for moving the Court, fixing the 3rd April for the next meeting. 9. No meeting was held on the 3rd April, as, on account of disturbances in the city, the Commissioner adjourned the meeting sine die at the suggestion of the solicitor for the Plaintiffs. Nor was any application made to the Court before the 28th March. 9. No meeting was held on the 3rd April, as, on account of disturbances in the city, the Commissioner adjourned the meeting sine die at the suggestion of the solicitor for the Plaintiffs. Nor was any application made to the Court before the 28th March. It is stated in the affidavits that the Court could not be moved on account of the disturbances, but it is not stated that any agreement for modification of the decree had been arrived at between the parties. The Court remained closed for the Easter holidays from the 4th to the 14th of April, both days inclusive. During the holidays, an advertisement appeared in the Amrita Bazar Patrika on the 10th April and in the Ananda Bazar Patrika on the 13th, calling for offers to be submitted to the Commissioner within a week and referring intending buyers for particulars of the properties to the Commissioner himself or the solicitor for the Plaintiffs. It was an advertisement covering the whole of the lands at Behala, the three holdings of garden land being described as Lot No. 1 and the remaining lands as Lot No. II. 10. The event that look place next was that by a letter dated the 21st April, 1947, the Commissioner informed the solicitors for the parties that he had, on that date, accepted the offer of one Mr. S.N. Mitter for the purchase of the three holdings of garden land at Behala for Rs. 25,500 and had also received a sum of Rs. 6,375 as earnest money. Immediately on receipt of that letter, the solicitors for three of the five branches of the family wrote to the Commissioner, protesting against the acceptance of the offer without reference to the parties and asking him not to proceed with the sale and to return the earnest money. Complaint was also made that the draft advertisement had never been settled and that the price was inadequate. These letters were not replied to, but on the 24th April, the Commissioner wrote to the solicitors for the parties, informing them that a meeting would be held on the 28th. During the interval, some correspondence followed between the solicitor for the Plaintiffs and the solicitors for the remaining parties about the making over of documents to the solicitor for the purchaser. During the interval, some correspondence followed between the solicitor for the Plaintiffs and the solicitors for the remaining parties about the making over of documents to the solicitor for the purchaser. The Plaintiffs' solicitor intimated to the remaining parties that under verbal directions of the Commissioner he was sending the documents to the purchaser's solicitor, to which some of the solicitors for the other parties objected. On the 25th April, one of them, Mr. P.C. Dutt, wrote a second letter to the Commissioner to say that if he did not refund the earnest money and proceed in the usual way, he had instructions to move the Court in the matter. 11. At the meeting held on the 28th April, all the parties except the Plaintiffs gave expression to strong protests against the acceptance of the offer. The grounds of these protests will be dealt with later. It is sufficient to state here that the parties also complained that they knew nothing of the advertisement and had had no opportunity to make offers and three of them expressed their willingness to purchase the properties jointly at the same price, subsequently raising it to Rs. 26,000. It was stated further that owing to the disturbed condition of the city and the shortness of notice, many willing purchasers had been unable to send their offers and two offers from third parties, one of Rs. 26,500 and another of Rs. 32,500, were placed before the Commissioner. The latter, however, announced that he had already completed the sale, received the balance of the purchase money and delivered possession to the purchaser and that he had acted within his powers, as conferred on him by the decree and the writ of Commission. 12. How the offer came to be accepted and possession delivered, is disclosed by the affidavits of the Commissioner and the purchaser and the facts there stated were supplemented by statements of their Counsel. It appears that altogether 12 offers were received and the next highest offer for the three garden plots was Rs. 25,000. The offer of S.N. Mitter was received on the 16th April. It is stated that the purchaser saw the Commissioner at the Bar Library and was asked to make enquiries after the 20th April which was the last date for receiving offers. 25,000. The offer of S.N. Mitter was received on the 16th April. It is stated that the purchaser saw the Commissioner at the Bar Library and was asked to make enquiries after the 20th April which was the last date for receiving offers. He called again on the 21st when, his offer being found to be the highest, a letter of acceptance was written out at the Bar Library and handed over to him and he, in his turn, paid the earnest money by a cheque. The letter of acceptance required him to complete the sale within 40 days. But the entire balance of the purchase money which, less taxes due, was Rs. 18,565-1 was paid to the Commissioner at his house on the 27th. April, a Sunday, and possession was delivered on the same date. As to that, the purchaser's affidavit is that on going to inspect the properties on the 24th April, he found local people cutting down fruit-bearing trees and taking away fixtures from the building and thereupon he, accompanied by his solicitor, went to the Commissioner's house on the 26th with the balance of the purchase money in cash, but he was asked to go with a cheque which he did the next day. The Commissioner's affidavit is that when the purchaser paid the balance of the purchase money on the 27th and demanded immediate possession in order to prevent damage to the properties, he could not properly withhold it. 13. It would be convenient to state here certain incidental facts before taking up the contentions of the parties. After the draft advertisement had been circulated among the solicitors, no criticism or suggestion was forwarded by any of them. But the advertisement actually published in the papers does not correspond wholly with the draft. The description of the properties is slightly, but not materially, different. But while the draft directed offers to be sent to the solicitor for the Plaintiffs and allowed 15 days' time, the advertisement actually published called for offers to be submitted to the Commissioner and that within a week. On an enquiry from me as to why the time had been reduced, the learned Counsel for the Commissioner stated, on instructions from his client, that the latter had done so in the exercise of his discretion. 14. On an enquiry from me as to why the time had been reduced, the learned Counsel for the Commissioner stated, on instructions from his client, that the latter had done so in the exercise of his discretion. 14. A point is sought to be made by the Commissioner in his affidavit that neither at the meeting of the 11th March, nor at any other meeting did the parties ever object to the valuation as made by the surveyor, thereby suggesting that the parties knew of the valuation. The valuation was made in. August, 1943, and the amount was Rs. 8,919-15 as. It is stated in the affidavits of the parties that the valuation was submitted to the Commissioner in a sealed cover and they did not know till the 28th April, 1947, what it was. It appears from the minutes of the proceedings of the 28th April, that the solicitor for the Plaintiffs asked the Commissioner to place before the meeting the valuation as made by the surveyor and the Commissioner did so at the end of the meeting. The parties thus appear not to have known the valuation till it was disclosed to them on the 28th April. 15. Lastly, the conditions of sale, the notification of sale, the abstract of title and the abstract of proceedings were sent to the purchaser's Solicitor by the solicitor for the Plaintiffs on the 25th April, that is, after the offer had been made and accepted. The purchaser's solicitor sent certain requisitions on title on the 29th April, that is, after the entire purchase money had been paid and possession delivered and the requisitions included enquiries as to what the nature of the tenure was, whether any rent was payable and whether the properties were subject to any encumbrances as also enquiries as to certain past transactions. By a letter dated the 5th May, 1947, the purchaser's solicitor informed the solicitor for the Plaintiffs that answers to the requisitions were no longer required. 16. After the 28th April, certain further offers were communicated to the Commissioner by solicitors for the Defendants, the highest being one of Rs. 33,000. By a letter dated the 5th May, 1947, the purchaser's solicitor informed the solicitor for the Plaintiffs that answers to the requisitions were no longer required. 16. After the 28th April, certain further offers were communicated to the Commissioner by solicitors for the Defendants, the highest being one of Rs. 33,000. The present summons was taken out on the 9th May and the reliefs prayed for, as notified by it, are (1) a declaration, that the offer of S.N. Mitter was inadequate and could not be accepted, (2) a declaration that the acceptance of the offer is void, (3) directions to the Commissioner to recover possession of the properties upon return of the monies received, (4) directions to the Commissioner to take steps for recovery of possession if the purchaser failed or refused to deliver possession and (5) directions to the purchaser to make over possession forthwith. 17. In support of the summons, it was contended by Mr. Sankar Banerjee that the reliefs prayed for by his client ought to be granted, because the advertisement which appeared in the papers were issued without the knowledge of the parties; its terms had never been settled as was the usual practice; it was issued by the Commissioner instead of by the solicitor for the Plaintiffs who had the carriage of the proceedings, which too was the usual practice; the offer was never placed before the parties and they had been given no opportunity to make offers themselves; that the Commissioner had proceeded to complete the sale hurriedly in spite of the protests of the parties and without even waiting to discuss the matter with them; and that the parties had been gravely prejudiced as the price was utterly inadequate. 18. Mr. Banerjee stated that in the circumstances of the case, he felt constrained to submit that the conduct of the Commissioner had not been fair and above-board and that although the word "fraud" had not been used in his client's affidavit, his case really was that the Commissioner's conduct amounted to fraud. 19. The Petitioner was supported by the remaining Defendants and naturally opposed by the purchaser and the Commissioner. 20. Mr. Sambhu Banerjee, who appeared for the purchaser, contended that apart from anything else, none of the reliefs prayed for by the Petitioner could be had by her in these summary proceedings and her remedy, if any, lay in a suit. 19. The Petitioner was supported by the remaining Defendants and naturally opposed by the purchaser and the Commissioner. 20. Mr. Sambhu Banerjee, who appeared for the purchaser, contended that apart from anything else, none of the reliefs prayed for by the Petitioner could be had by her in these summary proceedings and her remedy, if any, lay in a suit. The sale in the present case was not a sale by the Court but only a sale by private treaty, though under the authority of the Court, and there was no provision either in the Rules of the Original Side or in the CPC under which the Court could interfere with such a sale or make any order on the purchase on an application made in the suit itself. Mr. Banerjee further contended that his client was a bona fide purchaser and the price paid by him was fair and reasonable. 21. Mr. Majumdar who appeared for the Commissioner contended that the offer accepted by his client was an adequate offer and that a report of a Commissioner could not be interfered with except on the ground of fraud or conduct amounting to fraud, which had not been established. 22. I was pressed to set down the motion for trial on evidence, if I was going to investigate into the allegation of fraud. I did not act on that suggestion, because, in my view, no foundation for a case of fraud had been laid by the Petitioner or the parties supporting her. No suggestion was made in any of the affidavits that the Commissioner had any personal interest in the transaction or that there had been any collusion between him and the purchaser. 23. The conduct of the Commissioner during the last stages was certainly extraordinary to a degree and strikingly dissimilar to his own previous conduct. The conduct of the purchaser too, in making an offer and paying the earnest money before he had even ascertained the conditions of sale and in paying the entire balance of the purchase money before he had even sent the requisitions on title is, not easily explicable and has not been very convincingly explained by his affidavit. The conduct of the purchaser too, in making an offer and paying the earnest money before he had even ascertained the conditions of sale and in paying the entire balance of the purchase money before he had even sent the requisitions on title is, not easily explicable and has not been very convincingly explained by his affidavit. But so long as the possibility remains that the one was merely self willed and the other was merely recklessly eager to close the bargain, I would not be justified in raising an issue of fraud in the absence of any definite allegation. 24. The question, therefore, is whether there was any material irregularity, resulting in injury to the parties, and even if there was, whether I can in these proceedings grant the Petitioner the reliefs claimed by her or any other form of relief. 25. First comes the question of jurisdiction. Mr. Sankar Banerjee for the Petitioner (whose argument was adopted by the remaining Defendants) referred to sec. 7 of the Partition Act and contended that the sale in the present case having been a sale under a decree of this Court on its Original Side, the procedure applicable to Registrar's sales applied and accordingly the Court had ample jurisdiction to interfere. He contended next that, in any event, a sale by a Commissioner of Partition was in all essential respects a sale by the Registrar and thus a sale by the Court. For the latter proposition he relied upon the decision of Sale, J., in Minatoonnessa Bibi v. Khatoonnessa Bibi ILR 21 Cal. 479 (1898) and that of Chaudhuri, J., in Basir Ali v. Hafis Nazir Ali ILR 43 Cal. 124 (1915) Reference was also made to a decision of the Madras High Court, reported in J.A. Sankara Raju v. Kuppammal ILR 53 Mad. 238 (1929) 26. On behalf of the purchaser, it was contended by Mr. Sambhu Banerjee that the sale was not a sale under the Partition Act inasmuch as it was a sale by private treaty and a sale directed by a consent decree. 27. Reliance was placed on a decision of Ameer Ali, J., in Mt. Mahmooda Bibi and Another Vs. Mt. Nainoo Bibi and Others, AIR 1937 Cal 384 and a decision of the Madras High Court in Ragi Durganta v. Sri Lakshminarasimha Swamy Rice Factory AIR (1946) Mad. 299. 27. Reliance was placed on a decision of Ameer Ali, J., in Mt. Mahmooda Bibi and Another Vs. Mt. Nainoo Bibi and Others, AIR 1937 Cal 384 and a decision of the Madras High Court in Ragi Durganta v. Sri Lakshminarasimha Swamy Rice Factory AIR (1946) Mad. 299. It was contended next that a sale by a Commissioner of Partition was not a sale by the Court, but only a sale under the authority of the Court, questions as to which lay in the contract between the parties, particularly when the sale was by private treaty and such questions could only be agitated in an appropriate suit brought for the purpose. Reliance for this proposition was placed on the decision of Fletcher, J., in Jogemaya Dassee v. Akhoy Coomar Das ILR 40 Cal. 140 (1912) and the decision of Ameer Ali, J., referred to above. It was contended lastly that while the Court could give any directions it pleased to its Commissioner, it could make no order on the purchaser who had already taken possession, for if it did so, it would virtually be trying a suit for land in respect of properties situated outside the Original Jurisdiction of the Court. 28. The cases cited by the Petitioner are cases of sale by a receiver and are not directly applicable. The argument on her behalf proceeded on the footing that in Jogemaya Dassee v. Akhoy Coomar Das ILR 40 Cal. 140 (1912), Fletcher, J., had held sales by a Commissioner of Partition to be of the same character as sales by a receiver and it was sought to establish that a different view as to sales by a receiver had been taken by other learned Judges. The argument on behalf of the purchaser proceeded on the footing that Fletcher, J., had held all sales by a Commissioner of Partition to be not sales by the Court but only sales under the authority of the Court. In my opinion, the decision of Fletcher, J., was completely misunderstood by both parties. The argument on behalf of the purchaser proceeded on the footing that Fletcher, J., had held all sales by a Commissioner of Partition to be not sales by the Court but only sales under the authority of the Court. In my opinion, the decision of Fletcher, J., was completely misunderstood by both parties. He was dealing with a case where the order merely directed that the Commissioner would be "at liberty to sell" and it was with reference to the question whether a sale under such an order was a sale by the Court that the learned Judge observed that he had already dealt with the point in Golam Hossein Cassim Ariff v. Fatima Begum 16 C.W.N. 394 (1930) a case of a sale by a receiver. The learned Judge never said that all sales by a Commissioner of Partition stood on the same footing as sales by a receiver. Similarly, in putting forward the contention that the sale in that particular case was not a sale by the Court, but only a sale under the authority of the Court, Mr. B.C. Mitter (as he then was) referred to the form of the order for sale; and Fletcher, J., based his decision on the same circumstance and observed that since the Commissioner had only been given liberty to sell, a condition that the sale would be deemed and treated as a sale by the Court was inappropriate and misleading. The learned Judge proceeded to hold that the sale was only a sale made by the Commissioner under the authority of the Court and that, consequently, the purchaser could not apply in the suit to have a question as to title decided in a summary proceeding, but would have to bring a separate suit. It was never said that no sale by a Commissioner of Partition could be a sale by the Court and that all such sales were sales out of Court, merely held under the Court's authority. 29. In my opinion, the decision of Fletcher, J., in Jogemaya Dassee v. Akhoy Coomar Das ILR 40 Cal. 140 (1912) does not touch the present case. His view as to sales by a receiver may or may not be correct. The contrary view expressed by Sale, J., in Minatoonnessa Bibee v. Khatoonnessa Bibi ILR 21 Cal. 29. In my opinion, the decision of Fletcher, J., in Jogemaya Dassee v. Akhoy Coomar Das ILR 40 Cal. 140 (1912) does not touch the present case. His view as to sales by a receiver may or may not be correct. The contrary view expressed by Sale, J., in Minatoonnessa Bibee v. Khatoonnessa Bibi ILR 21 Cal. 479 (1898) may be the right view and the criticism offered by Chaudhuri, J., in Basir Ali v. Hafiz Nazir Ali ILR 43 Cal. 124 (1915) may be well-found. But since Fletcher, J., put on a par with sales by a receiver not all sales by a Commissioner of Partition but only sales where he was merely given liberty to sell, it is unnecessary for me to discuss the incidents of sales by receivers. In the present case, the decree is to the effect that Commissioner "do sell" the properties. Such a case is also not covered by the actual decision of Fletcher, J., which is only a decision that a sale by a Commissioner of Partition in exercise of a liberty to sell given to him is not a sale by the Court. 30. The decision of Ameer Ali, J., in Mt. Mahmooda Bibi and Another Vs. Mt. Nainoo Bibi and Others, AIR 1937 Cal 384 , which was the other case cited on behalf of the purchaser, does not lay down that the Court cannot entertain questions as to the validity of a sale by a Commissioner of Partition on an application made in the suit, but proceeds on the ground that the alleged irregularities had not been proved. The implication of the judgment rather is that if the irregularities had been made out, the learned Judge would have interfered. There is undoubtedly a sentence towards the end of the judgment where the learned Judge says that whether the Commissioner did or did not complete the sale was not a matter for him, but a matter governed by the law of contract. But as I read the judgment, that observation is limited to one particular question, vis., whether the Commissioner was entitled to refuse to complete the sale on the ground that by asking for an extension of time, the purchaser had repudiated the contract, and the learned Judge merely said that such a question was not a matter for directions. But as I read the judgment, that observation is limited to one particular question, vis., whether the Commissioner was entitled to refuse to complete the sale on the ground that by asking for an extension of time, the purchaser had repudiated the contract, and the learned Judge merely said that such a question was not a matter for directions. He did not say that even irregularities in the sale could not be canvassed on an application in the suit and that a sale by a Commissioner of Partition was a sale, over which the Court trying the partition suit had no control. 31. The decisions cited on behalf of the purchaser thus do not establish his contention. On the other hand, there is the decision in Holliwell v. Seacome (1906) 1 Ch. 426 cited by the Petitioner, which throws important light on the English practice as it was before the Partition Acts were repealed by the Law of Property Act, 1925 That was a case of a sale by the parties themselves. The statement of facts in the report describes the proceeding as "a summons taken out in a partition action by the purchaser of certain property sold under the direction of the Court." The judgment of Kekewich, J., on the other hand, begins by saying that the application before him was one by the purchaser under a sale by the Court. That the language used there is not wholly exact appears from the body of the judgment itself where the learned Judge, after referring to a rule laid down by Bacon, V.C. in an earlier case, observes that that was a rule laid down "with reference only to sales by the Court," but proceeds to point out that the principle had been worked out in Seton on Judgments and Orders "so as to be applicable also to a sale by private contract under the direction of the Court." The learned Judge then applies the principle which related to costs allowable to the purchaser on his discharge from the purchase. What is important to notice in the decision is that in a case of a sale in a partition suit, made under the direction of the Court by the parties themselves, the Court made an order in terms of the summons taken out by the purchaser and discharged him from the purchase, on the ground of defect of title, allowing him certain costs. Save as to the order for sale, the case is in all fours with the case before Fletcher, J., and the obvious reason for the difference in the decision is that in one case there was a direction to the parties to sell, whereas in the other case only a liberty to sell was given to the Commissioner. There is nothing in Indian Statute law or the rules of this Court which makes the English decision inapplicable to a sale held under the direction of this Court on its Original Side. 32. The decision of Fletcher, J., was considered by the Madras High Court in J.A. Sankara Raju v. Kuppammal ILR 53 Mad. 238 (1929). The learned Judges were dealing with a sale under the Presidency Towns Insolvency Act and distinguished the Calcutta case on the ground that the actual decision there only was that there could be no enquiry into title by the Registrar and they had nothing to do with a matter of that kind in the case before them. But they also observed that whether a sale under the Presidency Towns Insolvency Act was a sale by the Court or a sale by somebody authorised by the Court, Articles 18, 19 and 20 of the second schedule to the Act implied jurisdiction to confirm the sale and refuse to set it aside. I do not attach much importance to this decision, since it obviously turns on what the learned Judges considered to be the implication of certain special provisions in the particular- Act. 33. So much as to the authorities cited before me. The rule as to the mode of sale, as it obtains in England, is thus stated in Halsbury's Laws of England, Hailsham Edition, Vol. 29, page 271: 362. The sale may be either in court or out of court. 33. So much as to the authorities cited before me. The rule as to the mode of sale, as it obtains in England, is thus stated in Halsbury's Laws of England, Hailsham Edition, Vol. 29, page 271: 362. The sale may be either in court or out of court. Where the order directs that the land shall be sold with the approbation of the Judge, the sale is made in Court; that is all the steps are taken under the direction of the court Usually, the Court directs the property to be sold by public auction, but the sale may be by private treaty and in the latter case a conditional contract is executed and then brought in for confirmation by the Court The order may also direct that the sale shall be executed out of court. This is only done when the sale is to be by public auction. 363. Usually, the conduct of the sale is committed to the plaintiff or other person having the carriage of the order.....The solicitor of the patty having the conduct of the sale is deemed, as between the vendor and the purchaser, to be the agent of the parties to the action. 34. It would thus appear that whether a sale is in Court or out of Court does not depend upon who is given the conduct of the sale or whether the sale is by public auction or private treaty. It depends upon the form of the order. A sale by private treaty by the party having the carriage of the proceedings may also be a sale in Court and when it is so, the Court confirms such a sale. 35. In the present case, the decree did not direct that the sale would have to be with the approbation of the Court, nor that the conveyance would have to be settled by the Registrar. But it was a sale directed in a partition suit, in terms that the Commissioner "do sell," and I cannot imagine how such a sale can be other than a sale under the direction of the Court trying the partition suit, over which that Court must necessarily have control. Indeed, I should think a sale by a Commissioner of Partition in such a case is a sale by the Court. Indeed, I should think a sale by a Commissioner of Partition in such a case is a sale by the Court. After all, it is the Court which makes the partition, not the Commissioner; and a sale followed by a division of the sale proceeds is only one of the methods of partition. The Commissioner, as his designation indicates, is only commissioned to make a partition and where a sale is directed, he is commissioned by the Court to make a sale on the Court's behalf in aid of the partition which is the Court's ultimate concern. In these circumstances, it seems to me impossible to hold that where the Commissioner is not merely authorised but directed to sell, a sale by him is no more than a sale under the authority of the Court, that the Court's concern with the sale ends with the authorisation and that any subsequent question as to the validity of the sale must be agitated in a separate suit, just as if it was a private transaction between the Commissioner and the purchaser. Fletcher, J., never held anything of the kind. He was dealing with sales not directed, but merely authorised by the Court and observed that such sales were not confirmed by the Court, nor sale certificates granted. On the other hand, it was pointed out by the Petitioner that in this very case, a Judge, so widely experienced in the practice of the Court as Das, J., confirmed the sale of the Baranashi Ghose Street properties which was a sale under the same direction to sell. It would thus appear that sales held under the direction of the Court are confirmed on the Original Side. So far as my own experience on the Appellate Side of the Court goes, applications relating to sales by Commissioners of Partition are entertained every day by Mofussil Courts, trying partition suits and I can find nothing in law or reason to forbid that course. It is true that a sale by a Commissioner of Partition is not an execution sale. But neither is it a private sale, unconnected with the Court and the suit. Besides, an order for sale can be made in a partition suit only under the Partition Act or by consent. An order made under the Partition Act operates, by virtue of sec. But neither is it a private sale, unconnected with the Court and the suit. Besides, an order for sale can be made in a partition suit only under the Partition Act or by consent. An order made under the Partition Act operates, by virtue of sec. 8, as a decree; and where, as in the present case, a sale is, directed by the decree itself, the sale is obviously a sale under a decree, whether the decree be one under the Partition Act or by Consent. A sale by a Commissioner of Partition in such case is, therefore, virtually a sale in execution of a decree or an order having the force of a decree or at least a sale under a decree, made by the Court which passed the decree through the hand of the, Commissioner. If so, that Court must have jurisdiction as to questions relating to the legality or the regularity of the sale and the correct procedure for agitating such questions, in my view, is that an application should be made to that Court, to be dealt with in the course of the proceeding for sale. Convenience too lies in that procedure, for it would be manifestly intolerable if for questions arising as to a sale held by a Commissioner of Partition, the parties were to be relegated to a separate suit and the partition action held up indefinitely. 36. It is, however, not necessary to go so far as to hold that a sale held by a Commissioner of Partition under a direction to sell is a sale by the Court. It is sufficient for the purposes of the present case to hold that it is a sale under the direction of the Court and if so, questions relating to the sale can be canvassed by taking out a summons in the suit, as would appear from the decision of Kekewich, J. 37. There was considerable discussion at the Bar as to whether Chapter XXVII of the Rules of the Original Side, which deals with sales by the Registrar, were applicable in the present case. There was considerable discussion at the Bar as to whether Chapter XXVII of the Rules of the Original Side, which deals with sales by the Registrar, were applicable in the present case. The question seems to me to be of a secondary importance, for if, as I have held, the sale was one under the direction of the Court, made in the course of carrying out the preliminary decree, the Court must have control over the sale, whether the rules, contained in Chapter, XXVII, apply in terms or do not. But the matter may be examined. Sec. 7 of the Partition Act, to quote only the material part, provides that if any property be directed to be sold under this Act, by a decree or order of the High Court of Calcutta in the exercise of its Original Jurisdiction, the procedure of the Court for the sale of property by the Registrar shall, so far as practicable, be adopted. It was contended on behalf of the purchaser that the decree in the present case was a consent decree and, therefore, the sale directed thereby was not a sale under the Partition Act, as held by Ameer Ali, J., in Mt. Mahmooda Bibi and Another Vs. Mt. Nainoo Bibi and Others, AIR 1937 Cal 384 . It was contended next that the sale was not a sale under the Act, also because it was a sale by private treaty and not a sale by public auction, as required by sec. 6. As to these contentions, I am unable to agree that the decree was a consent decree. It does not say so, but on the other hand says that the decree was being passed "upon hearing the evidence given in this suit on behalf of the Plaintiffs." Reference was made to the further statement contained in the decree that in the Court's opinion, it would be a decree for the benefit of the infant Defendants and that statement was relied upon as an indication that it was a consent decree. Having regard to that statement, I referred to the minutes and found that an application relating to some kind of settlement was in fact filed and the Court gave leave to the guardian of the minors to consent. Having regard to that statement, I referred to the minutes and found that an application relating to some kind of settlement was in fact filed and the Court gave leave to the guardian of the minors to consent. But it also appears that the application was only by some of the parties and the Court proceeded to hear evidence and pass the kind of decree I have already indicated. In these circumstances, it is impossible to say that the decree, as a whole, was a consent decree. 38. The other ground is seemingly a more substantial one, for sec. 6 of the Act uses the words "bid" and "bidding" and does indicate that where the sale is not to co-sharers under sec. 3, it must be a sale by public auction. It was also so held in Ragi Durganta v. Sri Lakshminarasimha Swamy Rice Factory AIR (1946) Mad. 299 and in Mohit Krishna Kundu v. Pranab Chandra Ghose 52 C.L.J. 68 (1930). So far as the rules in Chapter XXVII themselves are concerned, they apply to sales by public auction and also, by virtue of Rule 63, to sales by private contract. The contention was that Chapter XXVII was not attracted at all, since the direction for sale "by public auction or private treaty," contained in the decree, was not a direction under the Partition Act. But an order for sale can be made in a partition suit only under the Partition Act or by consent; and if consent is excluded, the only other source of authority which remains is the Act. The fact that in making the order the Court gives too wide a direction as to the mode of sale or gives a wrong direction, does not, in my view, make the order any the less an order under the Partition Act. It was pointed out that in the case of Jogemaya Dassee v. Akhoy Coomar Das ILR 40 Cal. 140 (1912), where the direction was similar and the sale was actually held by public auction, it was not even contended that the sale was not one under the Partition Act and all that was said was that it was in effect such a sale. The obvious explanation is that in that case there was no direction to sell at all, as required by sec. 6 of the Act. 39. The obvious explanation is that in that case there was no direction to sell at all, as required by sec. 6 of the Act. 39. If the direction for sale was a direction under the Partition Act, there can be no question that Chapter XXVII of the Rules of the Original Side applies and if it does, there can be no question that an application in the suit lies. The sale is not yet complete. But assuming that Chapter XXVII does not apply, I am of opinion that the Court still has jurisdiction to investigate into the regularity of the sale. It was rightly contended by Mr. Sambhu Banerjee that the Court must derive its jurisdiction either from the Rules of the Original Side or from the Civil Procedure Code. I am of opinion that, in any event, the Court has jurisdiction under the Code as the Court which in making the partition, which appointed a Commissioner under sec. 75 and Or. 26, r. 13, which directed the Commissioner to sell the properties in pursuance of its decree and which has still to pass the Commissioner's report and pass the final decree. 40. This conclusion takes me to the merits of the case. I have already excluded fraud, but I feel bound to say that the precipitate character of the Commissioner's action during the last stages and his sudden change of policy as regards consulting the parties, requires a better explanation than has been forthcoming. In so far as the Commissioner decided to give no further time to the parties for arranging a partition and to proceed to sell the properties, no exception can be taken to his action. Since he himself found it necessary to adjourn the meeting of the 3rd April sine die on account of the disturbance, he might perhaps have given the parties one further chance even after the 28th March, but if his patience was exhausted, no complaint can justly be made. What cannot be accounted for is that after entering upon the stage of sale, he should have started to ignore the parties altogether and proceed in a manner which did affect their rights. What cannot be accounted for is that after entering upon the stage of sale, he should have started to ignore the parties altogether and proceed in a manner which did affect their rights. At the meeting of the 14th March, he directed the parties to make immediate inspection of the abstract of title, the notification and the conditions of sale and the sale notice gave them time till the 28th March to move the Court for an amendment of the decree, if they wished to do so, and fixed the 3rd April as the date of the next meeting. The parties were directed to do "whatever they want to do in the meantime." Obviously, the meeting of the 3rd of April was intended for the settlement of the sale notice and the conditions of sale if the parties did not, in the meantime, take other steps. It is, therefore, not easy to understand why he issued the sale notice before it had been settled. Assuming that he was entitled to take the sale notice as approved, since no suggestions had reached him, although there was no direction to send in suggestions, it is again not easy to understand why he reduced the "period" of the notice from 15 days to a week. As regards conditions of sale, no conditions, appropriate to a sale by private treaty, were even drawn up, not to speak of being settled. The notification and the conditions which were placed before the meeting of the 28th related to a sale by public auction and it appears that writing to the solicitor for the purchaser on the 25th April, the Commissioner said that the sale would be subject to the conditions of sale handed over to his client "in so far as they are applicable." Passing on to the next stage the Commissioner seems to have overlooked that the decree gave the parties liberty to bid and that he had not told them that he was going to issue an advertisement without further reference to them and they too were to send in offers like third parties. He could not, therefore, properly accept the offer of S.N. Mitter at the stage he did. He could not, therefore, properly accept the offer of S.N. Mitter at the stage he did. Passing on, it is not easy to understand why, after all the Defendants had sent in protests against his acceptance of the offer, he should have considered it unnecessary to stay his hands and even to reply. It he intended to bring forward the matter at the meeting of the 28th April, it is not easy to understand why, after informing the parties on the 24th that he was calling a meeting, he should nevertheless have accepted the balance of the purchase money and delivered possession on the 27th April, a Sunday, in circumstances already mentioned. The meeting was due to be held on the next day and the solicitor for one of the parties had already informed the Commissioner that he had been instructed to move the Court in the matter. It is impossible not to notice that neither in the affidavit of the Commissioner, nor in that of the purchaser is it stated that the Commissioner even mentioned to the purchaser that the parties were protesting and he had called a meeting to be held on the next day. 41. Since I have excluded fraud and collusion, the conduct of the purchaser is not really relevant or material. But its unusual character forces itself on one's notice. He made his offer and paid the earnest money before he knew the conditions of sale which were not handed over to his solicitor till the 25th April (see Annexures to his affidavit). He paid the balance of the purchase money before his requisitions on title had been answered or even sent. Those requisitions show that he did not know the nature pi the tenure, nor whether any rent was payable, nor whether there were encumbrances, nor whether certain transactions necessary to perfect the title of the vendors had taken place. In his affidavit, the purchaser states that he had previously satisfied himself as to the title and the respectability of the parties by reference to the record-of-rights and by enquiry. But the record-of-rights would contain no information as to the transactions and encumbrances and it is notorious that the respectability of a person is no guarantee of his title to a particular property. 42. But the record-of-rights would contain no information as to the transactions and encumbrances and it is notorious that the respectability of a person is no guarantee of his title to a particular property. 42. In spite of the apparent irreguarities, I would not be justified in interfering with the sale if, nevertheless, the Commissioner acted within his powers. The decree empowered him to sell to the best purchaser or purchasers and gave him liberty to insert such advertisements in such papers as he thought fit. As to whether he was still bound by the practice of the Court to consult the parties, I have not been able to obtain any definite or consistent information. Counsel at the Bar differed and all that I was able to ascertain by enquiry from brother Judges, having experience of the Original Side, was that, usually, the parties were consulted. I do not, however, find myself in a position to say that the practice has become a rule of law. But I must point out that in this case, the Commissioner had throughout been following the practice of consulting the parties at every step, that the proceedings of the 11th and the 14th of March clearly indicate that the practice would continue to be followed and that by suddenly issuing the advertisement without further consultation after the meeting of the 3rd April had been adjourned sine die, the Commissioner certainly misled the parties. I have been shown a copy of the Amrita Bazar Patrika in which the advertisement appeared, and judging from the singularly unprominent character of the insertion. I am perfectly prepared to believe the Defendants when they say that they did not see this advertisement, particularly when they had no reason to look for it and when, in view of the serious disturbances prevailing, nobody was in a mood to scan newspapers closely. If the Commissioner had finally told the parties on the 14th March that he was going to issue an advertisement without further reference to them and that if they wished to buy, they too would have to send their offers within the time notified, the position might have been different. If the Commissioner had finally told the parties on the 14th March that he was going to issue an advertisement without further reference to them and that if they wished to buy, they too would have to send their offers within the time notified, the position might have been different. But as it was, the decision on which the meeting of the 14th March ended was that there would be another meeting on the 3rd April for, to all appearances, the settlement of the sale notice and the conditions of sale. Even if the Commissioner had reached a stage at which he could issue the advertisement straightaway, he certainly did not give the parties to understand that they too would have to send their offers at the same time as outsiders. Apparently, the offers received were to be considered and offers by parties, if any, made at the next meeting. The proceedings of the meeting of the 28th April show that the Defendants were prepared to buy the properties at the same price or even a higher price. Liberty to bid, given to them, must be taken to include liberty to make offers, if the sale was made otherwise than by public auction. Even if they offered the same price, their offer would have to be accepted on the principle of sec. 6 (3) of the Partition Act. In my opinion, even conceding that the Commissioner was not bound to settle the sale notice in consultation with the parties and had the right to issue it as he did, the sale cannot be upheld, because it was not a sale in accordance with the decree inasmuch the parties were given no opportunity to make offers, because the notice was insufficient and the time mentioned in the draft notice was improperly reduced and because the balance of the purchase money was accepted and possession delivered before disposing of the objections of the parties and even in disregard of an intimation that the Court was going to be moved. Any one of these grounds is sufficient to invalidate the sale. In T.S. Gopalswami Odayar v. T.S. Swaminatha Odayar ILR (1939) Mad. Any one of these grounds is sufficient to invalidate the sale. In T.S. Gopalswami Odayar v. T.S. Swaminatha Odayar ILR (1939) Mad. 597 the Madras High Court, dealing with a sale made by a receiver in a partition suit on its Original Side, refused to confirm it and directed a refund of the purchase money on the single ground that the sale had not been properly advertised and sufficient notice had not been given. 43. If the sale was not in accordance with the decree, it was not merely an irregular but an illegal sale and no question of prejudice to the parties arises. But the prejudice in not having been given an opportunity to make offers in patent. Just complaint may also be made of inadequacy of the price. Much higher offers were placed before the Commissioner at the meeting of the 28th April and thereafter and I can find no reason to hold that they were not bond fide offers. I am not disposed to attach any importance to a second valuation report, which is referred to in the affidavit of the Commissioner and which was produced before me. The valuation is Rs. 22,625-3-3 and is said to have been made on the 15th May, 1947. A letter of the surveyor, bearing the above date, says that the valuation was made that morning in accordance with a letter of the Commissioner, dated the 14th, and while the exact figure of the total valuation is mentioned, it is stated that a detailed report will be sent later, as the writer would be leaving Calcutta on the next day. The report is dated the 20th May and was sent with a covering letter of the same date. The report shows that the valuation is of a rough and ready character, hardly better than a layman's valuation, and it cannot prevail over the market price, as disclosed by contemporary offers. 44. The last question is as to the form of the relief that can be given. I agree with Mr. Sambhu Banerjee that there can be no question of making any declarations, but I can hold the sale to be invalid and adjust my directions to that finding. 44. The last question is as to the form of the relief that can be given. I agree with Mr. Sambhu Banerjee that there can be no question of making any declarations, but I can hold the sale to be invalid and adjust my directions to that finding. As regards the properties being situated outside the Original Jurisdiction of this Court, it must be remembered that the decree for partition and sale was made in this very suit and the suit must have been brought with leave under clause 12 of the Letters Patent. As regards the purchaser himself, I agree with Mr. Sambhu Banerjee that by merely appearing on this summons, he has not surrendered his right to challenge the jurisdiction of the Court to make any order against him. But the sale is not yet complete, the conveyance remains to be executed in terms of the decree and it is not the position that the purchaser has, after entering into the proceeding for sale held under the direction of this Court, since passed out of it and become the accepted and confirmed owner of the properties. If a sale of properties situated outside the Original Jurisdiction is properly held under the direction of this Court and a person, residing outside such jurisdiction, becomes the purchaser and even takes possession, I cannot see why an order cannot be made against him qua such purchaser, so long as the sale proceeding is not over and the sale not finalised. Having come forward to participate in the sale held in pursuance of a decree of this Court and under its direction's, he must be subject to all orders made by the Court with respect to the properties in connection with the sale, provided always that the sale is not already completed. 45. I may add that after the considered decision of this Court in Bireswar Ghose v. Punchkouri Ghose 27 C.W.N. 537 (1922), it can no longer be said that a sale cannot be set aside when the interests of a third party purchaser have intervened, unless the latter has been guilty of fraud. It is true that the decision relates to an execution sale, but I see no reason why the principle should not apply to a sale under the direction of the Court. Nor can I agree with Mr. It is true that the decision relates to an execution sale, but I see no reason why the principle should not apply to a sale under the direction of the Court. Nor can I agree with Mr. Majumdar that an act of a Commissioner of Partition cannot be interfered with, unless there has been fraud or negligence amounting to fraud. The decision in Lister v. Lister 3 Y. & C. 540 : S.C. 160 E.R. 816 cited by him, does not support his contention, although there is a broad statement in the head-note. It will appear from the two judgments in the case that Alderson, B. limited his observation as to fraud to valuations, but as regards other matters, he went into the merits. As a matter of fact, objections to reports of Commissioners are taken and given effect to every day and it would be strange if the Court could not interfere, even if the Commissioner proceeded in a manner not warranted by the decree or in a way, unfair or prejudicial to the parties. 46. In the result, for the reasons given above, I hold the sale to be invalid and direct the Commissioner not to take any steps towards executing a conveyance. I direct him further to refund to the purchaser the purchase money, together with out of the assets such costs and actual expenses, if any, incurred on account of improvements made before receipt of the notice of motion as he may be entitled to and to recover from him possession of the properties, I direct the purchaser to deliver possession to the Commissioner. I direct the Commissioner further to hold a re-sale of the properties, on proper notice to the parties, after he has taken the aforesaid steps and to give the parties proper opportunity to make offers or bid, as the case may be, and in case the sale is by private treaty, to place the offers before the parties in order that they may make their own offers. Costs of parties, other than the purchaser and the Commissioner, will come out of the assets. Liberty to apply. Certified for Counsel.