BASANTA KUMAR DAS Vs. KUSUM KUMARI DASI

JUDGEMENT

(1.) This is an application made in a partition suit by the mortgagees of the plaintiffs shares asking (i) to be added as parties and to be allowed to appear in all proceedings in this Court and before the Commissioner of partition and the Receiver at their own costs, such costs to be added to their claim as mortgagees, (ii) for revocation of an order of the 9th August 1915, directing (inter alia) a sale of the one-fourth share of the premises Nos. 4 and 5, Jackson Ghat Street, which is one of the properties to be partitioned in the suit for the purpose of defraying the costs of the suit. Other relief is also sought. The suit was instituted on the 17th May 1910. The mortgages were respectively executed on the 5th August 1910, the 26th July 1911, the 29th May 1912 and the 30th August 1913, and purported to charge the plaintiffs undivided half share in the estate of one Dinabandhu Das, which estate is the subject-matter of the partition suit.

(2.) A decree was made in the suit on the 4th January 1912, from which it appears that the plaintiffs were entitled to a one-third and not a one-half share in the estate of Dinabandhu Das, and the mortgagees charge their mortgagors , the plaintiffs and their attorneys with fraudulently representing that they were entitled to a one-half share, whereas they, in fact, knew that they were only entitled to a one-third share. On the 9th August 19=15, an order was made by Mr. Justice Chaudhuri giving liberty to sell the moveables and the one-fourth undivided share of 4and 5y Jackson Ghat Street, free from encumbrances-for the purpose of paying the costs already incurred in the suit and the expenses of the partition.

(3.) The parties to the suit agreed among themselves that the one-fourth share in 4 and 5, Jackson Ghat Street, should be offered to the co-sharer for Rs. 35,000. A contract at this price was eventually entered into, not with the co-sharer but with another person whose name was disclosed: at a late stage The conveyance has been approved, the earnest money has been paid, and the 20th March last was fixed for completion.