RANI ALOKA DUDHORIA AND OTHERS versus GOUTAM DUDHORIA AND OTHERS

Citation: [2009] 4 S.C.R. 204 · Decided: 05-03-2009 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2009] 4 S.C.R. 204 
A 
RANI ALOKA DUDHORIA AND OTHERS 
v 
GOUTAM DUDHORIA AND OTHERS 
Civil Appeal No. 6692 of 2005 
B 
MARCH 5, 2009 
(S.B. SINHA AND CYRIAC JOSEPH, JJ.) 
Partition Act, 1893: 
Sections 2, 3, 6 - Partition - Positive findings - Need for 
c - Discussed. 
Fraud and collusion between parties - Taking note of -
Not necessary to go into the questions of fraud and collision 
in detail - Impugned judgments set aside - In view of the 
peculiar facts and circumstances certain directions issued -
D Constitution of India, 1950-Article 142- CPC, O.XXI r. 72A(2). 
In the present appeals against orders of High Court, 
the questions involved relate to Sections 2, 3 and 6 of 
Partition Act as also collusion and fraud in respect of 
E partition of certain properties. 
Allowing the appeals with certain directions, the 
Court 
HELD: 1. If the defendants-respondents intend to 
invoke equity they must also do equity. As would appear 
.. 
F from the record, apart from the order passed at the time 
of passing of the preliminary decree dated 20th July, 1979 
but also from the Minutes of the Joint Commissioner's 
Meeting dated 30th July, 1983, application of the 
respondents dated 16th August, 1983 and from the order 
G dated 10th June, 1984, it is clear that the provisions of the 
Partition Act shall apply. Neither any aforementioned 
application was necessary nor any specific finding thereto 
was imperative. Once it is held that the provisions of the 
H 
204 
RANI ALOKA DUDHORIA AND OTHERS V. 
205 
GOUTAM DUDHORIAAND OTHERS 
Partition Act are applicable, the court was bound to comply A 
• 
with the provisions thereof. If that is the legal principle, 
on interpretation of the Partition Act as also from the 
decision of this Court, it must be held that the 
Commissioner of Partition and the High Court failed to 
comply with the said provisions.[Para 25] [242-C-E] 
B 
K. Ramamurthi Iyer v. Raja V Rajeswara Rao, (1972) 2 
SCC 721; Sathi Lakshmana KC v. PC Mohandas, 2008 (4) 
--4 
KLT 401; Smt. Rukmani w/o Late Ethraj v. Uday Kumar Sia 
l 
Late B. Venkatesalu !LR 2008 KAR 13; Ma!ati Ramchandra 
Rauf (Mrs) v. Mahadevo Vasudeo Joshi, 1991 Supp (1) SCC c 
321 and TS. Swaminathan v Official Receiver of West Tanjore, 
AIR 1957 SC 577 - relied on. 
Badri Narain Prasad Choudhary v. Nil Ratan Sarkar, 
(1978) 3 sec 30 - held inapplicable. 
D 
~ 
2. Sub-section (1) of Section 6 of the Partition Act 
mandatorily requires fixation of a reserved price. Parties 
appear to have agreed thereto before the Commissioner 
of Partition as would be clear from the respondents' 
application dated 16
1
h August, 1983. Such a stand had also E 
been taken by the parties before the High Court as would 
appear from the order dated 11th June, 1984. It is of 
significance to notice that respondents in their application 
dated 22nd January, 1997 prayed for a direction from the 
High Court to the Commissioner of Partition that "they F 
may be given leave to sell the said properties without fixing 
any reserve price" as also "that a liberty be given to the 
Commissioner of Partition to permit the parties present 
to purchase the said properties at their own valuation." If 
the provisions of Section 6 of the Partition Act are G 
...; 
imperative in nature any such prayer could not have been 
entertained. Such a leave/liberty had not been granted to 
the Commissioner. The Commissioner was directed to 
carry out of the auction sale in terms of the order dated 
11
1
h June, 1984. It has been urg~d that the plaintiffs-
H 
206 
SUPREME COURT REPORTS 
[2009] 4 S.C.R. 
A appellants themselves agreed that the properties need not 
be valued. However, from the order dated 11th June, 1984 
it appears that with a view to avoid the costs and 
expenditure to be incurred toward the appointment of the 
valuer, it was stated that the valuation of the properties 
8 need not be done by a valuer but the same would not 
mean that the plaintiffs-respondents had themselves 
agreed not to have any valuation of the properties at all. 
The respondents, however, had even not denied or 
disputed that he had also agreed to the same. [Para 26] 
C [243-F-G; 244-A-F] 
3. No application for modification of the order had 
been prayed for. In any event the said order could not have 
been passed in supersession of the order dated 20th July, 
1979. Valuation of a property of this nature even, in the 
0 interest of justice, is to protect the rights of the parties. 
Code of Civil Procedure provides 

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