- (1.) BACKDROP: One Ghanshyam Das Bagree and others filed a partition suit in 1959 inter-alia praying for partition of the family properties belonging to Bagree family. The learned single Judge passed a preliminary decree on May 7, 1965. Some of the parties died during pendency of the suit thus changing the share ratio of the surviving parties. Ultimately the properties would belong to seven groups being four sons and three daughters of late Sugan Chand Bagree. The joint receivers appointed in the suit were authorized to sell the family properties that were agreed to be sold. The present appeal would principally relate to a controversy with regard to 170 shares belonging to Krishna Kumar Bagree, the son of Girdhar Das Bagree belonging to Narsing Das group. Krishna Kumar died on November 15, 2009 leaving behind his widow and only son Varun Raj. The Appeal No. 173 of 2012 was filed by Radha Bagree the widow and Varun Raj the only son of Krishna Kumar against the judgement and order dated November 18, 2011 appearing at page 130-141 of the paper book. The second appeal would relate to Gopal Das branch, another son of Sugan Chand who also died leaving a Will that is awaiting adjudication. Gopal Das died on May 31, 2003 leaving behind his widow Goura Devi who also died on July 29, 2012. An application was made by one Nikhil Nischal Bagree claiming to be the adopted son of Gopal Das that was under challenge. The learned Single Judge appointed. Mr. Samrat Sen as administrator over the estate of Gopal Das Bagree. The second appeal being APO No. 354 of 2012 was pursued by Mr. Sen as Administrator that would relate to the same judgment and order dated November 18, 2011 initially appealed by the executor to the Will of Gopal Das. We heard both the appeals on the above mentioned dates. Since both the appeals would relate to a common judgment and order dated November 18, 2011, we intend to dispose of the same by this common judgment. CONTENTIONS:
(2.) Mr. Sourav Mukherjee learned Counsel advanced his argument on behalf of the appellants in APO No. 173 of 2012. Mr. Mukherjee would contend, Krishna Kumar admittedly owned 170 shares that could not be disposed of by the Joint Receivers. At best, the Joint Receivers could make a money claim for the said shares at the rate of Rs.1500 per share as agreed by between the parties so recorded in the Terms of Settlement. Pertinent to note, the parties entered into settlement in 1974 when a proceeding initiated under Section 397 and 398 of the Companies Act, 1956 relating to Bagree Estate Private Limited was settled. Clause 4 and 6 being relevant herein are quoted below: "The Company shall pay corporation rates and taxes of the premises No. 54, Ezra Street, Calcutta both owners' and occupiers' shares thereof including the arrears thereof upto March 31, 1974 and the petitioners shall have no liability whatsoever for the same. the company shall also hand over all papers, documents and briefs relating to any suits and proceedings in respect of the said premises No. 54, Ezra Street, Calcutta to be petitioners forthwith and shall take appropriate steps for substitution of the petitioners in its place in any pending proceedings either in any Court of Law or elsewhere before any authority or authorities with prior intimation to the petitioners." "The petitioner shall also transferred and/or surrender and assign their respective right, title and interest which they will have in the shareholding or Sugan Chand Bagree, deceased in the company either in case of intestacy or under any will of Sugan Chand Bagree, deceased, if there be any to Kishandas Bagree and Gridhar Das Bagree upon receipt of the price of those shares calculated at the rate of Rs.1,500/- (Rupees One Thousand Five Hundred only) per share." As per Clause 6 quoted the shareholding of Sugan Chand would automatically go to Kishan Das Bagree and Girdhar Das Bagree at the price calculated at the rate of Rs.1,500 per share. Radha and Varun Raj thus became 50% owner of the said shares belonging to Girdhar Das branch. Sri Gour Ray Choudhuri learned Counsel appearing for Mohanlal Bagree belonging to the other group Kishan Das Bagree supported his claim. According to Mr. Ray Choudhuri, the articles and association of the Bargee Estate Private Limited would not permit any stranger to be a shareholder of the company. Mr. Mukherjee further contended, the Terms of Settlement as agreed upon particularly Clause 4 would relate to 54, Ezra Street, Calcutta that went in favour of the other group being the petitioners in the Section 397 proceeding, belonging to Gordhan Das Bagree group. In terms of Clause 4, Gordhan Das Bagree became the owner of 54, Ezra Street, whereas the share which the Gordhan Das group got from Sugan Chand as his heir, should be transferred to Kishan Das group and Girdhar Das group. Hence 170 shares belonging to Bagree Estate Private Limited should not be sold and in any event, the female branch being the daughters and their heirs could not have any say in the matter. Mr. Ray Choudhury adopted the argument by Mr. Mukherjee on this issue.
(3.) Per contra, Mr. Mainak Bose the learned Counsel representing the Gordhan Das group contended, the Terms of Settlement so recorded in the Section 397 proceeding was performed in part and the parties subsequently deviated from the same and agreed to have all shares sold by the Joint Receivers and the proceeds distributed amongst the parties according to their respective share. He referred to the minutes of the meeting held by the Joint Receivers to show Krishna Kumar during his life time agreed to have the 170 shares sold. Subsequently Jamini Devi, the widow died and her 50 shares would also come to the hotchpot. No step was taken to sell the shares. Hence, direction was necessary to dispose of the same at the earliest. The learned Judge was right in giving such direction. He referred to the affidavit of Krishna Kumar filed in the proceeding during his life time particularly paragraph 6(q) which is quoted below: "I respectfully submit that the shares in Bagree Estate Private Limited registered in the name of late Sugan Chand Bagree and late Jamini Devi Bagree be kindly distributed among the parties according to the shares they are entitled to.";