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2014 DIGILAW 166 (CAL)

Jogendra Kristo Dutt v. Nripendra Kristo Dutt

2014-02-27

DEBANGSU BASAK

body2014
Judgment : Debangsu Basak, J. Harendra Kristo Dutt was survived by his five sons and his widow. He was the owner of the several immovable properties in the city of Kolkata and other places. He made and published his last Will and Testament on March 20, 1940. He died on May 22, 1950. By his Will late Harendra Kristo Dutt appointed his widow Kanchan Kumari Dassi and his two sons Rajendra and Sailendra as executors. The Will of Harendra provided that five sons would receive 1/5th share in his estate. It also stipulated that if Amarendra died without living behind any wife or issue his share would be divided equally between Jogendra and Mahendra. Probate of the Will of late Harendra was granted on June 23, 1950. According to the plaintiff the two named executors of Harendra were guilty of misappropriation of the estate. The widow of Harendra along with Amarendra and Jogendra filed a suit before this Hon’ble Court being Suit No. 239 of 1965 for removal of Rajendra and Sailendra as executors. Such suit was decreed on January 16, 1966. Rajendra and Sailendra were removed as executors. Amarendra, Jogendra and Mahendra along with the widow of Harendra were appointed as executors and executrix. The outgoing executors were required to file the accounts and inventory of the properties and credit of the deceased. Harendra was seized and possessed of eleven immovable properties identified in the plaint. Apart from the immovable properties Harendra was also seized and possessed of various movables. Of the eleven immovable properties the property at 2, Mitter Lane, Kolkata – 700007, was the family dwelling house. According to the plaintiff, Sailendra left the family dwelling house, except for a short period of time between 1959-1960, when he came back to the family dwelling house. It was alleged by the plaintiff that, Sailendra floated several companies by using funds of the estate of Harendra and that, Sailendra did not account for his withdrawals from the estate. In Suit No. 239 of 1965 which was a suit for removal of Rajendra and Sailendra as executors, an affidavit was affirmed by Sailendra claiming that an agreement was entered into between him and other beneficiaries of the Will of Harendra to the effect that Sailendra had foregone his shares in the estate of Harendra on the terms and conditions stated in the agreement. Another suit being Suit No. 2243 of 1963 was filed between the parties. According to the plaintiff, Sailendra in such suit also admitted that he drew heavily from the estate of Harendra. In 1975 Amarendra and Jogendra filed the instant suit for partition. By consent of the parties to the suit, a preliminary decree was passed on January 27, 1997. The Preliminary decree specified the shares of the parties. Subsequently, the preliminary decree was modified to include the clause of the Will of Harendra relating to the devolution of Amarendra’s share. A Commissioner of Partition was appointed by the preliminary decree. The preliminary decree also required the parties to render accounts before the Commissioner of Partition. Diverse orders were passed from time to time in the instant suit requiring Sailendra to furnish accounts. Sailendra died in 2003. His heirs were substituted as the Defendant No. 2 series. Sailendra, however, did not furnish such accounts. The heirs of Sailendra being the Defendant No. 2 series did not furnish accounts also. Ultimately by an Order dated December 23, 2010 this Hon’ble Court recorded that the Defendant No. 2 group did not furnish any accounts relating to the estate. The order noted the problem caused by non-furnishing of accounts by the Sailendra’s branch. Such order provided that, in order to overcome such problem, it was open to the Sailendra’s branch to obtain the papers and, thereafter, within a period of eight weeks from the date of the order, to furnish the accounts to the Commissioner of Partition. It was recorded that papers were available with the Commissioner of Partition and that the other branches had furnished the accounts. The order allowed Sailendra’s branch to obtain the papers from the Commissioner of Partition on the usual terms and, thereafter, to furnish accounts within a period of eight weeks from the date of the order. The right to the parties to accept or challenge the report of the Commission of Partition was kept open. After Sailendra’s branch filed its accounts the Commissioner of Partition was directed to complete the assessment and finalization of accounts within a period of three months. The right to the parties to accept or challenge the report of the Commission of Partition was kept open. After Sailendra’s branch filed its accounts the Commissioner of Partition was directed to complete the assessment and finalization of accounts within a period of three months. The order further provided that, in the event Sailendra’s branch did not furnish any accounts, within the time stipulated, then, the extent of liability of the Sailendra’s branch would be assessed on the basis of the papers and accounts submitted by the other branches, and the entitlement of the Sailendra’s branch would depend thereon. A Valuer was appointed in the suit. The Valuer by a letter dated April 19, 2011 requested the Commissioner of Partition for advice on the issue of formulation and completion of the scheme of partition. In response to such request the Commissioner of Partition by his letter dated May 25, 2011 referred to the Order dated December 23, 2010 and suggested a few methods which the Valuer could explore to formulate and complete a scheme of partition. The Valuer submitted a report dated June 28, 2011 to the Commissioner of Partition. By such report he framed a scheme of partition. This scheme was referred to as the Partition Scheme III. He found, after undertaking the exercise of finding out the liability of Sailendra’s branch to the estate, that a sum of Rs. 42,51,368/- was due from Sailendra’s branch to the estate taking the base year 1955. The Valuer took the permitted value of Rs. 42,51,368/- as on the base year 1955 and applied various indexes and found that as on January 10, 2010 a sum of Rs. 12,37,14,809/- was due and payable by the Defendant No. 2 group or the Sailendra’s branch to the other branches. The Valuer calculated the entitlement of Sailendra’s branch from out of the immovable properties and found that they were entitled to Rs. 3,93,23,000/-. Sailendra’s branch, therefore, was liable to the estate far in excess of their entitlement. Therefore, according to the Valuer, the Sailendra’s branch was not entitled to any share in the estate at all. The Commissioner of Partition accepted the Valuer’s report and in his final report of February 14, 2012 the Commissioner of Partition endorsed the Valuer’s views contained in the report dated June 28, 2011. Two applications were filed challenging the final report of the Commissioner of Partition. The Commissioner of Partition accepted the Valuer’s report and in his final report of February 14, 2012 the Commissioner of Partition endorsed the Valuer’s views contained in the report dated June 28, 2011. Two applications were filed challenging the final report of the Commissioner of Partition. The first application being G.A. No. 2315 of 2012 was filed on behalf of the Defendant No. 1 group. Their challenge revolved mainly around the method of allotment of the immovable properties done by the Valuer between the parties. The next application was G.A. No. 1517 of 2013 filed by the Defendant No. 2 group or the Sailendra’s branch. However, G.A. No. 1517 of 2013 was taken up for hearing first as Sailendra’s branch wanted to place their application prior to the another application being taken up for hearing. Mr. Malay Ghosh, Advocate appeared for the Defendant No. 2 group. The plaintiff was represented by Mr. Hirak Mitra, Senior Advocate and Mr. Sandip Mukherjee, Advocate. The Defendant No. 1 group was represented by Mr. S.N. Mitra, Senior Advocate and the Defendant No. 3 group by Mr. Ahin Chowdhury, Senior Advocate. Mr. Malay Ghosh learned Advocate for the Defendant No. 2 group submitted that, the final report of the Commissioner of Partition dated February 14, 2012 was not in terms of the Order dated December 23, 2010. According to him, the Order dated December 23, 2010 required the Commissioner of Partition to assess the accounts on the basis of the best evidence available. Such order also allowed the Commissioner of Partition to assess the extent of liability of the Defendant No. 2 group to the estate on the basis of papers and accounts submitted by the other branches. He submitted that the Commission of Partition instead of undertaking the work entrusted to it by the Order dated December 23, 2010 delegated such work to the valuer. The Commissioner of Partition was not entitled to delegate the same. The delegation of the work by the Commissioner of Partition to the Valuer would appear from the letter dated April 19, 2011 written by the valuer to the Commissioner of Partition and the response of the Commissioner of Partition thereto dated May 25, 2011. Since the final report of the Commissioner of Partition was not in accordance with the Order dated December 23, 2010 such report ought to be rejected forthwith. Mr. Since the final report of the Commissioner of Partition was not in accordance with the Order dated December 23, 2010 such report ought to be rejected forthwith. Mr. Ghosh, thereafter, submitted that in the event his clients failed on the first ground, the report of the Commissioner of Partition ought to be rejected on the next few grounds which he canvassed. Although the Defendant No. 2 group did not furnish any accounts he sought to explain the non-furnishing of accounts in terms of the Order dated December 23, 2010 by his clients by contending that two of his clients were of advanced age. It was an admitted position, according to Mr. Ghosh, that, accounts could not be reconstructed from the primary documents. The Commissioner of Partition found the original ledgers to be soiled and eaten by white ants to the extent that it was not possible to read them. He submitted that, neither the Valuer nor the Commissioner of Partition had before them the best evidence available. He referred to few correspondences in that regard. He placed a letter dated April 21, 2004 issued by the Advocate for the Plaintiff No. 2 to the then Commissioner of Partition, a letter dated February 6, 2006 written by the Advocate for the Defendant No. 2 group to the Commissioner of Partition and a letter dated March 23, 2004 written by the Advocate for the Defendant No. 3 group to the then Commissioner of Partition. He contended that the enclosures to the three letters were not primary documents and that there was no sanctity to the figures appearing in the enclosures to such letters. It was improper on the part of the Valuer and the Commissioner of Partition to proceed on the basis of the enclosures to such letters. The enclosures to such letters were no accounts at all. They were certainly not the best available evidence contemplated by the Order dated December 23, 2010. He contended that, the Valuer was discharged by the Order dated August 11, 2011. Since the valuer stood discharged by such order, the Commissioner of Partition ought not to have taken note of the report of the valuer on February 12, 2012. They were certainly not the best available evidence contemplated by the Order dated December 23, 2010. He contended that, the Valuer was discharged by the Order dated August 11, 2011. Since the valuer stood discharged by such order, the Commissioner of Partition ought not to have taken note of the report of the valuer on February 12, 2012. He submitted that, the fact that the figures contained in the enclosures to the three letters were not the true and actual accounts would appear from the stand taken by the respective parties in the written statements filed in other suit. In such written statements, the amount said to be withdrawn by the Defendant No. 2 group from the estate was shown to be much lower. This, according to him, raised sufficient suspicion as to the veracity of the enclosures to the three letters requiring the Commissioner of Partition to make a far detailed enquiry than sought to be done. He contended that, one of the stands taken on behalf of the Defendant No. 3 group was that the application of the Defendant No. 2 was barred by limitation. According to the Defendant No. 3 group, the period of limitation was prescribed under Chapter XXVI Rule 89 of the Original Side Rules. Mr. Ghosh contended that Chapter XXVI Rule 89 was not attracted in the facts of the instant case. The report under challenge was made by the Commissioner of Partition who was a member of the Bar and appointed by an order of this Hon’ble Court. The Commissioner of Partition was not an officer within the meaning of Chapter XXVI Rule 89 of the Original Side Rules. According to him, his clients’ application was governed by Order XXVI Rules 13 and 14(2) of the Code of Civil Procedure, 1908. No period of limitation was prescribed in the aforesaid two Rules. He contended that, in terms of Article 137 of the Limitation Act, 1963 the prescribed period of limitation was three years. The report under challenge was dated February 14, 2012. The application made on behalf of his clients was within the period of limitation. In support of his contention that the application of his client was governed by Order XXVI Rules 13 and 14(2) of the Code of Civil Procedure, 1908, he relied on All India Reporter 1975 Calcutta page 303 paragraph 29 (Jaiswal Coal Co. The application made on behalf of his clients was within the period of limitation. In support of his contention that the application of his client was governed by Order XXVI Rules 13 and 14(2) of the Code of Civil Procedure, 1908, he relied on All India Reporter 1975 Calcutta page 303 paragraph 29 (Jaiswal Coal Co. v. Fatehganj Co-operative Marketing Society Ltd.). Mr. Ghosh then contended that the accounts for the period of 1951- 1966 were involved. The suit was filed in 1975. Under Article 1 of the Limitation Act, 1963 the claim was barred on the date of filing of the suit. He also relied on Section 3 of the Limitation Act, 1963 in support of the contention that the Court was required to look into the question of limitation whether raised or not. An interesting development took place in course of the advancement of submissions by Mr. Malay Ghosh. In course of his submission Mr. Ghosh repeatedly submitted that, it was improper for the Commissioner of Partition and the Valuer, to arrive at a finding, that, amounts far in excess of the entitlement of his clients were due and payable, by his clients to the estate. He contended that his clients were happy, in the event it was held that, no amount was due and payable by his clients to the estate. At the same time, his clients were ready and willing to give up their entitlement in the estate. On such submissions being made repeatedly Mr. Ahin Chowdhury Senior Advocate for the Defendant No. 3 intervened and submitted that, since the Defendant No. 2 series were happy with a recording that no amount was due and payable by the Defendant No. 2 group to the estate and that the Defendant No. 2 group would not take any share from the estate, his clients were agreeable to such proposal. He went on to submit that, his clients were ready and willing to take care of the grievances of the Defendant No. 1 group also. He suggested a method which, if the parties negotiated, would take care of the misgivings, if any, of the Defendant No. 1 group with regard to the allotment of the immovable properties. He went on to submit that, his clients were ready and willing to take care of the grievances of the Defendant No. 1 group also. He suggested a method which, if the parties negotiated, would take care of the misgivings, if any, of the Defendant No. 1 group with regard to the allotment of the immovable properties. On the movables, at this stage with the intervention of the Court, he submitted that his clients were willing to allow the Defendant No. 2 group to have the first choice of the movables to the extent of the reasonable entitlement of the Defendant No. 2 group. He submitted that the distribution of the movables could be worked out by the parties. Mr. Surojit Nath Mitra learned Senior Advocate appeared for the Defendant No. 1 group. He submitted that his clients did not object to the settlement being arrived at between Defendant No. 3 group and the Defendant No. 2 group. His clients, according to him, were willing to negotiate with the Defendant No. 3 group as well as the plaintiff to resolve the allotment of the immovable properties between three of them. The plaintiff adopted the stand of the Defendant No. 3 group. Mr. Ghosh, however, on instructions from his clients, changed his declared position. He no longer pressed for declaration of no liability. He contended that the report of the Valuer and the Commissioner of Partition ought to be set aside on the grounds urged by him. The change of stand by the clients of Mr. Ghosh was surprising. All the three other branches were agreeable to the reliefs that Mr. Ghosh’s clients wanted from Court. Upon seeing such agreement, Mr. Ghosh’s clients changed their stand. Since there was no settlement between the parties within the meaning of Order XXIII Rule 3 of the Code of Civil procedure, 1908 the applications were required to be dealt with on merits. Mr. Ahin Chowdhury, Senior Advocate for the Defendant No. 3 submitted that, the affidavit-in-opposition of Mr. Soumendra Kristo Dutt affirmed on January 15, 2013 narrated the stand of his clients. He referred to the decree dated January 16, 1966 passed in Suit No. 239 of 1965. He submitted that Sailendra Kristo Dutt, one of the executors of the estate of late Harendra Kristo Dutt, was removed by such decree. Such decree recorded that the outgoing executors did not furnish accounts. He referred to the decree dated January 16, 1966 passed in Suit No. 239 of 1965. He submitted that Sailendra Kristo Dutt, one of the executors of the estate of late Harendra Kristo Dutt, was removed by such decree. Such decree recorded that the outgoing executors did not furnish accounts. He next referred to an affidavit of Sailendra Kristo Dutt, affirmed in Suit No. 239 of 1965, where Sailendra referred to the agreements in writing made between Sailendra and other beneficiaries under the Will of Harendra, whereby Sailendra agreed to forego all his shares in the estate of Harendra on the terms and conditions mentioned in such agreement. In such affidavit Sailendra also stated that, he had no intention to obstruct the partition. One of such agreement executed by Sailendra was placed by Mr. Chowdhury. He next submitted that, there were numerous orders passed by this Hon’ble Court from time to time requiring Sailendra to submit accounts. Such orders remained uncomplied with till date. Neither Sailendra nor the Defendant No. 2 series, subsequent to the death of Sailendra ever furnished any accounts. He contended that, the Order dated December 23, 2010 could not be read to mean that there was any embargo on the Valuer undertaking the exercise of determining the liability of the Sailendra’s group to the estate. In fact, he submitted, that without such exercise being undertaken, the respective entitlement of the parties to the estate could not be worked out. The respective entitlement of the parties in the estate, was required to be determined for the Valuer to divide the estate amongst the parties. Division of the estate was not possible without such exercise being undertaken. The Valuer was well within his rights to do so. Independent of everything else, this exercise was imperative for the valuer to come up with a meaningful scheme of Partition. He contended that, after the valuer submitted his report the same came up for consideration before the Commissioner of Partition. The Commissioner of Partition considered the report of the Valuer and found the same acceptable. The Commissioner of Partition proceeded to accept the report of the Valuer and submit his own report. When the Commissioner of Partition submitted his own report, it no longer could be contended that, the Commissioner of Partition did not undertake the exercise as was required of him by the Order dated December 23, 2010. The Commissioner of Partition proceeded to accept the report of the Valuer and submit his own report. When the Commissioner of Partition submitted his own report, it no longer could be contended that, the Commissioner of Partition did not undertake the exercise as was required of him by the Order dated December 23, 2010. On the interpretation of the word “best evidence available” used in the Order dated December 23, 2010, he submitted that, no other or better evidence was produced by any of the parties even in the course of argument to suggest that, there was any better evidence available to either the Valuer or the Commissioner of Partition to undertake the exercise. The Order dated December 23, 2010 required an exercise of ascertaining the accounts to be undertaken. The order gave the first option of furnishing the accounts to the Defendant No. 2 group. The Defendant No. 2 group chose not to avail of such opportunity. The Defendant No. 2 group did not furnish any accounts at any point of time. The other three branches furnished their accounts to the Commissioner of Partition. The Valuer proceeded on the basis of the accounts furnished by the groups other than the Defendant No 2 group. According to him, that was the best course of action available to the Valuer and the Commissioner of Partition in absence of any other or better materials being placed before them. According to him, no material was placed before Court to contradict the quantum arrived at by the Valuer and the Commissioner of Partition. He did not advance any argument on the question that G.A. No 1517 of 2013 was barred by the laws of limitation. Mr. Sandip Mukherjee, Advocate for the plaintiff adopted the submissions advanced on behalf of the Defendant No. 3. In addition he submitted that Sailendra during his lifetime granted a receipt dated January 23, 1961 which ought to be taken into consideration. Mr. Surojit Nath Mitra, Senior Advocate for the Defendant No. 1, submitted that his client did not use any affidavit. His clients were interested in assailing the report of the Commissioner of Partition on the grounds made out by his clients in their application being G.A. No. 2315 of 2012, The hearing of G.A. No. 2315 of 2012 was taken up immediately thereafter. His clients were interested in assailing the report of the Commissioner of Partition on the grounds made out by his clients in their application being G.A. No. 2315 of 2012, The hearing of G.A. No. 2315 of 2012 was taken up immediately thereafter. At such stage the learned Counsel for the Defendant No. 3 and the Defendant No. 1 wanted time to facilitate their clients to negotiate and arrive at an amicable settlement, if possible. Such request was acceded to and the applications were fixed for hearing on the next agreed date. The suit was for partition. Eleven immovable properties were involved apart from movables. The suit was of 1975. There were four branches to the litigation. The preliminary decree dated January 27, 1997 declared the undivided shares of the respective parties in the suit. The preliminary decree was corrected on February 11, 1997 to incorporate a clause of Harendra’s Will regarding devolution of Amarendra’s Share. A Commissioner of Partition was appointed by the preliminary decree dated January 27, 1997. The estate remained undivided since then. Diverse orders for preparation, submission and finalization of accounts of the estate to permit partition saw three groups submit accounts on different dates with the Defendant No. 2 group not submitting any accounts at all. Various applications for diverse reliefs were filed in the suit resulting in diverse orders. One of such application resulted in the Order dated December 23, 2010. The Order dated December 23, 2010 referred to the decree dated January 27, 1997 which required the parties to render accounts before the Commissioner of Partition within seven days thereof. It also referred to the Order Dated November 19, 2001 which directed the parties to hand over accounts from the 1951 to the Commissioner of Partition. It also referred to an Order dated December 24, 2008 which required the Commissioner of Partition to take a decision on the basis of the accounts furnished before him. The order proceeded to record that the Defendant No. 2 group did not furnish any accounts. It recorded the submission of the other three branches that such branches completed the accounts and that without the Defendant no 2 group filing the accounts owelty money and the extent of the pay out to the respective branches could not be ascertained. The order proceeded to record that the Defendant No. 2 group did not furnish any accounts. It recorded the submission of the other three branches that such branches completed the accounts and that without the Defendant no 2 group filing the accounts owelty money and the extent of the pay out to the respective branches could not be ascertained. It noted that the three branches prepared the accounts from the papers made available to the Commissioner of Partition and that such papers were also offered to the Defendant No 2 group. The Defendant No. 2 group contended in the application resulting in the Order dated December 23, 2010 that they did not have any connection with the estate for a substantial period of time and claimed that in absence of papers no accounts could be prepared and that their branch should not be called upon to do so. Therefore, in G.A. No. 978 of 2010 which resulted in the Order dated December 23, 2010 the Defendant No. 2 group contended that they should be absolved of their responsibility to furnish accounts. Such contention was negated. On the contrary, the Order dated December 23, 2010 gave the Defendant No. 2 an opportunity to furnish accounts within eight weeks from the date of the order. It allowed the Commissioner of Partition to assess the accounts on the basis on best evidence available in the event accounts were submitted by the Defendant No. 2 group. The Order dated December 23, 2010, thereafter, provided a mechanism contemplating a situation where the Defendant No. 2 group would fail to render accounts. In the event the Defendant No. 2 group did not furnish accounts within the time stipulated, the extent of liability of such branch to the estate was directed to be assessed by the Commissioner of Partition, on the basis of the papers and accounts submitted by other branches, and the entitlement of the Defendant No. 2 group branch was directed to depend thereupon. This Order dated December 23, 2010 was binding on the parties. Subsequent to the Order dated December 23, 2010, the Defendant No. 2 branch did not furnish any accounts to the Commissioner of Partition. Three meetings of the parties were convened and held by the Commissioner of Partition. The first meeting subsequent to the Order dated December 23, 2010 was held on February 3, 2011. Subsequent to the Order dated December 23, 2010, the Defendant No. 2 branch did not furnish any accounts to the Commissioner of Partition. Three meetings of the parties were convened and held by the Commissioner of Partition. The first meeting subsequent to the Order dated December 23, 2010 was held on February 3, 2011. Such meeting was attended by the parties. On the question of furnishing of accounts, the parties requested and obtained time till February 10, 2011, when the next meeting was agreed, by consent, to be held. During the meeting the parties and the Commissioner of Partition went to the godown where the relevant documents concerning accounts connected to the case was kept. After opening the concerned almirah all the documents lying thereat were found to soiled and eaten by white ants and that nothing could be restored therefrom. In the second meeting dated February 10, 2011, the Defendant No. 2 group was represented by their Advocate and Mr. Purnendu Dhar. They submitted that, since they did not possess any paper relating to the accounts they would require copies of the statement of accounts filed by the other parties. Copies of such accounts were made over to the Defendant No. 2 group in such meeting. By a letter dated April 1, 2011 the Advocates for the Defendant No. 2 addressed to the Commissioner of Partition contended that, no reliance could be placed on the statement of accounts of the other groups as they were unsubstantiated. The inability of the Defendant No. 2 group to submit accounts unless detailed particulars and documents were furnished was placed on record on behalf of the Defendant No. 2. The third meeting was held on April 12, 2011 which the Defendant No. 2 group did not attend. The Commissioner of Partition gave the parties 15 days time to forward the statement of accounts. All the parties to the proceedings knew of the accounts submitted by the three branches other than the Defendant No. 2 to the Commissioner of Partition. Nothing was placed to suggest that the Defendant No. 2 group at any point of time challenged the accounts submitted by the other three branches to the Commissioner of Partition. Mr. Ghosh took pains to show the diverse figures that the three branches submitted to the Commissioner of Partition to establish the alleged liability of his clients to the estate. Nothing was placed to suggest that the Defendant No. 2 group at any point of time challenged the accounts submitted by the other three branches to the Commissioner of Partition. Mr. Ghosh took pains to show the diverse figures that the three branches submitted to the Commissioner of Partition to establish the alleged liability of his clients to the estate. He fairly accepted the position that such accounts remained unchallenged on behalf of his clients. He contended that, although such accounts remained unchallenged, they could not be accepted as sacrosanct, since according to him, there was not the best evidence available. The figures in the three accounts differed with each other. The figures in the three accounts also differed with the written statements in other suits, according to him. The recordings in the minutes of the meeting of the Commissioner of Partition are not under challenge. On the contrary, the Defendant No. 2 group relied upon them to establish that primary documents concerning accounts were unavailable. A meeting of the Commissioner of Partition was held on January 4, 2004. In such meeting, in spite of notice, the Defendant No. 2 group was not present. Such meeting recorded the fact that the Defendant No. 1 group took inspection of the ledger of late Rajendra Kristo Dutt from the financial year 1950-51 to 1977-78 from the books available with the Receiver. There was consistent failure on the part of the Defendant No. 2 group to submit accounts. The Defendant No. 2 group not only did not submit any accounts but also could not establish before the Commissioner of Partition that the accounts submitted by the other groups were without any basis. All that the Defendant No. 2 contended was that the other groups submitted accounts showing various amounts. There was no cohesion amongst the accounts submitted by the other groups and, therefore, in absence of such cohesion the accounts submitted by such other groups were unreliable. In the facts and circumstances of the instant case, it was required to arrive at a finding on the accounts to determine the entitlement, if any, of the Defendant No. 2 group from the estate. It was an accepted position that the Defendant No. 2 group withdrew sums from the estate and that the Defendant No. 2 was liable to refund the same. The question was of quantum. It was an accepted position that the Defendant No. 2 group withdrew sums from the estate and that the Defendant No. 2 was liable to refund the same. The question was of quantum. In arriving at the quantum of liability of the Defendant No. 2 group the Valuer adopted a particular method. The Commissioner of Partition on considering of the Valuer’s report approved of it. Primary documents were not placed either before the Valuer or before the Commissioner of Partition. Primary documents relating to accounts were not available for consideration. This was an accepted position. In absence of primary documents, both the Valuer and the Commissioner of Partition proceeded on the next best available course of examination, that is, to adjudicate the liability of the Defendant No. 2 group on the basis of accounts available. Neither the report of the Valuer nor the Commissioner of Partition could be faulted on the ground of not considering the best available evidence. Both of them proceeded on the best available course of action in absence of primary documents relating to the accounts. Even in the course of hearing of the two applications nothing was shown to contest the finding of the Valuer and the Commissioner of Partition apart from stating that they ought not to have relied on the accounts submitted by the other groups. In the event the contentions of the Defendant No. 2 group were to be accepted, the lis would remain pending for eternity. Closure of a lis ought to be preferred over pendency. So far as the contention of Mr. Ghosh that the Valuer was discharged by the Order dated August 11, 2011 and that the Commissioner of Partition ought not to have taken note of the report of the Valuer on February 12, 2012 was concerned, the Order dated September 20, 2011 allowed the Commissioner of Partition to take into cognizance the report submitted by the Valuer who was discharged. Therefore, there was no impediment on the Commissioner of Partition to take into cognizance any report submitted by the Valuer. The report of the Valuer was dated June 28, 2011 which was prior to the Order dated September 20, 2011. None of the other parties of the suit urged that the application of the Defendant No. 2 group was barred by the laws of limitation. The suit was for partition and accounts. The report of the Valuer was dated June 28, 2011 which was prior to the Order dated September 20, 2011. None of the other parties of the suit urged that the application of the Defendant No. 2 group was barred by the laws of limitation. The suit was for partition and accounts. The Defendant No. 2 during his lifetime withdrew money from the estate which was an acknowledged fact. He was liable to render accounts. Repeated orders were passed asking the Defendant No. 2 group to submit accounts. Such orders were not complied with. Mr. Chowdhury submitted that the Defendant No. 2 acted as a trustee and as such the question of limitation would not arise. He also contended that, in view of the orders passed from time to time requiring the Defendant No. 2 group to submit accounts, it was too late for the Defendant No. 2 group to take the plea of limitation. The Defendant No. 2 group could not be permitted to shirk their responsibility of submitting accounts on the ground of limitation. Accounts were required to finalize to arrive at the entitlement of the respective groups. The Defendant No. 2 group was, therefore, required to submit accounts. It could not, therefore, stand any logic that the liability to submit accounts by the Defendant No. 2 group stood barred by the laws of limitation on the date of filing of the suit. Moreover, the Defendant No. 2 was acting as a trustee while withdrawing the same from the estate and he and his group were liable to account for the same. Repeated orders of the Court were not complied with by the Defendant No. 2 group to submit accounts. No objection was taken when such orders were passed that by reason of the law of limitation the Defendant No. 2 group was not liable to render accounts. The Defendant No. 2 group accepted those orders and proceeded on the basis thereof. The Defendant No. 2 group could not be allowed to resile from such declared position. In such circumstances the challenges leveled by the Defendant No. 2 group in G.A. No. 1517 of 2013 failed. G.A. No. 1517 of 2013 is dismissed without any order as to costs. The Defendant No. 2 group could not be allowed to resile from such declared position. In such circumstances the challenges leveled by the Defendant No. 2 group in G.A. No. 1517 of 2013 failed. G.A. No. 1517 of 2013 is dismissed without any order as to costs. Apart from the Defendant No. 2 group, the other groups in the suit arrived at a terms of settlement in G.A. No. 2315 of 2012 which was filed on February 24, 2014. A sum of around Rs. 1,76,000/- remained with the Commissioner of Partition. Prayer for payment of remuneration to him and the clerk engaged was made. The Commissioner of Partition would be entitled to a sum of Rs. 1,25,000/- and the clerk engaged by him to a sum of Rs. 30,000/-. The Commissioner of Partition will be entitled to retain his remuneration from out of the fund presently available with him. The Commissioner of Partition will immediately pay the sum of Rs. 30,000/- by cheque to the clerk from the funds available with him. The report of the Commissioner of Partition as varied by the terms by settlement is accepted. In view of the terms of settlement there will be a decree in terms of the settlement filed in G.A. No. 2315 of 2012. G.A. No. 2315 of 2012 is disposed accordingly. There will be no order as to costs.