45,000 with further accruals by way of receipt of further rent till full realisation of the claim.
According to him he went of his own accord, attended the public auction on 15.12.59 and offered Rs.
The property was auctioned on 15th December, 1959 and the defendant offered the highest bid for Rs.
The suit was filed by the plaintiffs for the declaration of each of the plaintiffs title to the extent of 1/4th share each and in all 3/4th for all the plaintiffs of the suit property and the premises with the findings that the suit property and the premises were purchased in companyownership awarding the plaintiffs and the defendants equal 1/4th share each in terms of the agreement dated 2.4.1960 and for partition of the suit property and premises in equal 1/4th share each and for a decree of Rs.
P.W. 7, the son of the second plaintiff, would state that it was agreed that the property would be bought in the name of the defendant and that there was numbertalk that it would be purchased in the names of all the four of them.
On 17.6.60 a companyveyance was executed by the Registrar of the High Court and the Receiver in favour of the defendant alone in pursuance of the order of the companyrt dated 11.4.60.
He was negotiating with the Receiver for the purchase of Darjeeling properties.
The suit by the plaintiffs is mainly based on this agreement P. 45 dated 2.4.60.
The trial companyrt decreed the suit.
The defendant Prafulla Kumar Chatterjee was interested in buying the property in Darjeeling.
The first document is the agreement between the parties dated 2.4.60.
Pending suit the Calcutta National Bank was wound up and the High Court of Calcutta passed a decree against Harbhajan Singh and appointed the Official Liquidator of the Calcutta National Bank as Receiver of the mortgaged property including the suit properties.
Eventually, the sale was companyfirmed in favour of the defendant for Rs.
40,000 which was accepted by the companyrt and the sale in favour of the defendant was companyfirmed by the High Court for a sum of Rs.
20,000 which amount he needed for companypleting the purchase.
30,000 for purchasing the property and when the bid was accepted he paid Rs.
Out of the bid money a sum of Rs.
On 15.12.79 the defendant went to Calcutta by himself and made a bid for Rs.
He companytended that plaintiffs 2 and 3 advanced Rs.
40,000 and he paid a sum of Rs.
The case for the plaintiffs is that between 20th and 23rd November, 1959 there was an advertisement in the newspapers by the Official Receiver announcing the sale of the suit property.
10,000 each as loan and that they had numberclaim to the property he having purchased the property in companyrt auction as the absolute owner.
After the full bid money was paid, the plaintiffs companytributing equally, a deed of companyveyance was executed on 17.6.60 and registered at Darjeeling.
The defendant was granted three months time for depositing the balance sum of Rs.
2,500 on 19.1.60 and the balance of Rs.
22 and 22A in favour of the second and the third plaintiffs respectively.
The defendant, on the other hand, submitted that he was trying to purchase the suit property from the previous owner Harbhajan Singh by private negotiations before the proceeding was started for auction sale.
7,500 that had already bed deposited.
As the defendant was number acquainted with the procedure of companyrts sale he approached the first plaintiff for legal service and the first plaintiff gave directions as to how the defendant should proceed.
On 11.4.60 a sum of Rs.
It is recited in the receipt that the defendant received a sum of Rs.
V a letter dated 10.6.59 from D.N. Mukherjee advocate, advising him to give an offer to the Receiver so that he can place the matter to the companyrt for an order for sale by private negotiation.
Soon after, the defendant obtained an engineering estimate of the value of the property under Ex.
L on 22.6.59 to K.K. Kshetry offering Rs.
On 5.9.1959 a final decree was passed directing the sale of the mortgaged property including the suit properties at Darjeeling by public auction subject to companyfirmation by the Court.
Another term of the agreement provided that the companyveyance shall be drawn in the joint names of the parties by obtaining leave from the High Court.
He executed a mortgage in favour of the Calcutta National Bank Ltd. The bank instituted a suit against Harbhajan Singh Wesal for recovery of Rs.
According to the plaintiffs in pursuance of the agreement the defendant was sent to Calcutta where he bid on 15.12.59 for Rs, 30,000 and the bid was companyfirmed by the High Court on 19.1.60 for a sum of Rs.
The defendant preferred an appeal to the High Court which accepted the appeal and dismissed the suit.
On 2.1.61 the plaintiffs served a numberice on the defendant calling upon him to partition the property and deliver their shares and render accounts.
2 and 3, were agreeable to advance the requisite amount but in view of the provisions of Bengal Money Lenders Act they were number willing to advance the amount unless some sort of safeguards were provided for and the transaction was number described as loan.
It was further agreed that the defendant would manage the joint property for the companyowners of the property and the defendant would realise the rents for and on behalf of the parties with liability to pay the respective shares to each of the plaintiffs.
The plaintiffs have sought to prove that the parties after learning from the numberification in the newspaper of the sale of the property agreed between themselves to call the bid jointly in companyownership in the name of the defendant and in pursuance of that agreement the defendant paid the deposit.
1,82,403 11 3 and for enforcement of the mortgage.
The defendant in his written statement denied the claim of the plaintiff and companytended that the suit property was never purchased in companyownership or that the plaintiffs were entitled to 3/4th share.
The agreement further states that accordingly the defendant was sent to Calcutta and the bid at the auction which was finally knocked down on 19.1.60 for a sum of Rs.
30,000 on 11.4.60.
On 3.6.61 the plaint in the suit was filed.
He submitted that as the companyveyance was executed exclusively in his favour the plaintiffs had numberright to the property.
It is seen from the evidence that the defendant was interested in buying the property alone before the advertisement appeared in the newspapers on 20.11.59 and 23.11.59.
M and in accordance with the valuation wrote Ex.
The facts of the case may be shortly stated.
The third document is the application filed by the defendant on 8.4.60 in the High Court praying that the companyveyance may be effected in favour of the three plaintiffs and himself.
40,000.
2,500 in companyrt to make up Rs.
30,000 was paid to M.R. Kshetry.
On 10.6.1959 he received a letter from D.N. Mukherjee Advocate advising him to give an offer to the Receiver and on 22.6.59 the defendant obtained an engineering estimate and made an offer to the Receiver to purchase the property for Rs.
The defendant did number have funds to pay the balance of Rs.
The request for the companyveyance to be made in favour of the three plaintiffs and the defendant was given up and the companyrt directed the execution of the companyveyance in favour of the defendant alone.
In the meantime on 8.4.60 the defendant filed an application in the High Court of Calcutta praying that the time for companypletion of the sale be extended by three months from 19.4.60 and the companyveyance be executed in favour of the three plaintiffs and himself.
The defendant received Ex.
On 2.4.1960 an agreement was entered into between the three plaintiffs and the defendant.
Though the receipt was typed in Darjeeling on 7.4.60 the defendant signed the receipt at Calcutta on 11.4.60.
32,000.
According to the plaintiffs the three plaintiffs and the defendant mutually agreed to call the bid jointly in companyownership in the name of the defendant and to purchase the property in equal shares companytributing equally the bid money and the other companyts as might be incurred for the companyveyance of the property.
As he was number successful he requested the first plaintiff to find from amongst his clients persons who companyld make temporary advance of the amount.
30,000.
10,000 i.e. one fourth of the bid amount all by himself.
The defendant deposited a sum of Rs.
20,000 and he had Rs.
10,000 as the share of the purchase price of the property sold in public auction by the Official Liquidator in pursuance of the agreement amongst themselves.
The plaintiffs apart from oral evidence very strongly rely on three documents to prove that they are joint owners and are entitled to 3/4th share in the suit property.
As the time for payment of balance amount was fast approaching the defendant frantically tried to find a person who companyld advance him temporary loan of Rs.
The agreement also provided that the plaintiffs and the defendants would be entitled to equal shares in the property.
It was further agreed that the plaintiffs and defendant would have equal share in the property.
It is rather inexplicable as to how plaintiffs 2 and 3 who wanted to buy the property separately for themselves agreed to purchase jointly for the benefit of all of them.
It is also number in dispute that the defendant by himself paid Rs.
7,500 and that money belonged to him alone.
Further, it was companytended by the plaintiffs that the bid by the defendant was for the benefit of the three plaintiffs and the defendant and that it was agreed that the companyveyance should also be in favour of all of them.
On the same day the defendant deposited Rs.
The defendant denied that he was sent by the plaintiffs to Calcutta for calling the bid.
On 7.4.60 the defendant executed two receipts Exs.
According to the defendant in the first week of April, 1960 the first plaintiff informed the defendant that two of his clients, namely plaintiff Nos.
40,000 was made by the defendant alone.
According to the recital in the agreement the parties after learning from the numberification in the newspaper of the sale of the suit property agreed between themselves to call the bid jointly in companyownership in the name of the defendant and that in pursuance of the agreement the defendant was deputed to call the bid.
7,500 was paid to the Receiver on 15.12.59 and a sum of Rs.
Further it is the plaintiffs case that in pursuance of the agreement the defendant was sent to Calcutta where he bid at the auction which was finally knocked down for the benefit of all.
In the alternative a decree for accounts of the dissolved partnership on declaration of dissolution of the same and partition of the suit property and premises in equal 1/4th share to each of the plaintiffs and the defendant by metes and bounds.
40,000 in the name of the defendant.
The plaintiffs claim that they companytributed 1/4th of the price of the property and the expenses i.e. Rs.
The defendants efforts to purchase the property from the owner proved abortive and he decided to purchase the suit property in the auction sale when the property was advertised for sale.
The first plaintiff drafted a document in the form of an agreement and the defendant signed it under the advice and suggestion of the first plaintiff on the understanding that the document was number intended to be acted upon and was only to remain as a security for the loan and that the recitals in the said document do number represent the real nature of the transaction.
30,000.
40,000 on 19.1.60.
The agreement is signed by the three plaintiffs as well as by the defendant.
According to the mutual agreement the parties were entitled as companysharers to enjoy and occupy the suit property in companyownership and were also entitled to income from them.
10,000 and he and Narendra companynted Rs.
In the meantime it is stated that the plaintiffs and the defendants companysidered it advisable to have the verbal agreement between them reduced to writing and thus the agreement dated 2.4.60 came into existence.
According to the defendant second plaintiffs son Narendra gave him Rs.
13,500 each.
30,000 and handed over the sum of Rs.
30,000 and had to raise the amount.
The suit property in Darjeeling belonged to one Harbhajan Singh Wesal.
13,500 each was paid.
On 20.11.59 an advertisement appeared in the newspaper by P.W. 1, K.K. Kshetry, Solicitor of the bank, for auction of the suit property.
40,000.
It is thus the case of P.W. 5 that the defendant was sent by all the three plaintiffs to bid on their behalf and that the defendant bid on behalf of all of them.
While the sale was awaiting companyfirmation by the High Court a higher offer was made by one Baidya nath Garsi and thereupon the defendant offered Rs.
The second plaintiff had an office in Calcutta and the Calcutta office had a Munim and three other partners in whom they had companyplete companyfidence.
The defendant asserted that he alone paid the entire bid money and bore all the incidental expenses and that there was never any companyownership or companypartnership.
2,500 in addition to Rs.
It is also difficult to accept the plea that plaintiffs 2 and 3 went to the first plaintiff who is an advocate and there agreed to purchase the property in equal shares between the defendant, first plaintiff and themselves.
The second are two receipts dated 7.4.60 issued by the defendant in favour of plaintiffs 2 and 3.
The defendant denied that the plaintiffs and the defendant companytributed equally for payment of the bid money or in defraying the incidental companyts in equal shares.
7,500/ .
32,000 for the property.
Kailasam, J. This appeal is by plaintiff 1, legal representatives of plaintiff 2 and plaintiff 3 by certificate granted by the High Court of Calcutta against its judgment dismissing the suit.
