Chakravartti, J. - (1.) A great many points were debated before us in course of the argument on this appeal, but the more important of them all bear on one broad question, viz., whether when the Commissioner of Partition accepted the offer of the appellants, there was a concluded agreement for sale or whether there was only a partial agreement as to some of the terms so that in the absence of the remaining terms being agreed to within the stipulated time, the Commissioner was entitled to break off the negotiations and consider better offers which he had subsequently received. Mallick, J., has held that there v/as no concluded agreement for sale and since Respondent No. 4 had come forward with a higher offer, the Commissioner ought to be directed not to complete the sale to the appellants and to hold a fresh sale by an auction limited to the appellants and the said Respondent.
(2.) The facts are as follows: In 1951, Respondent No. 1, Sm. Himangshu Bala Bose, who owns an eight annas share in premises No. 52, Durga. Charan Mitter Street, brought a suit for a partition of the house. Her co-sharers are Respondent No. 2, Sailendra Prosad Bose and Respondent No. 3, Anil Krishna Ghose, each of whom owns a four annas share. The preliminary decree passed in the suit provided that if it was found that the house could not be conveniently partitioned by metes and bounds, the Commissioner of Partition should sell it by public auction or private treaty to the best purchaser or purchasers available, subject to at least the reserved price being obtained. The Surveyor appointed by the Commissioner of Partition reported that a physical division of the house in accordance with the shares of the parties was impossible and the parties accepted that position. They also accepted the valuation made be the Surveyor. The house was then put up for sale by public auction on the 21st November, 1953, but as none of the bids offered reached the reserved price, the sale was abandoned The plaintiff then applied to the court for directions. On the 4th May, 1954, the court ordered that the Commissioner should sell the house by public auction to the best purchaser or purchasers available or sell it by private treaty, subject to the reserved price of Rs. 35,000, but that no sale by public auction should take place within two months, during which period the parties would be at liberty to negotiate a sale by private treaty. The actual order has not been included in the Paper-Book, but it would seem that, this time, the Court did not attach any condition as to the reserved price to a sale by public auction, presumably in the view that since the first attempt at such a sale had failed to attract any purchaser who was prepared to pay at least the reserved price, it would be useless to insist on the condition, if even private negotiations during a period of two months failed to secure any offer of that amount and if a second public sale became necessary. Be that as it may, shortly after the order of the Court, three offers were received by the Commissioner which he placed before the parties at a meeting held on the 12th June. 1954. At that meeting, the plaintiff and Anil Krishna Ghosh were, represented by their respective solicitors, the plaintiff being further represented by a brother and a son-in-law, while Sailendra Prosad Bose was present in person. The meeting was also attended by a solicitor, named Mr. B. K. Mukherjee, on behalf of the Appellants who had sent in an offer and he attended, as the minutes say, at the request of the solicitors for the plaintiff and Anil Krishna Ghosh.
(3.) Of the three offers received by the Commissioner, one was from the Appellants, one from Respondent No. 4, Sushil Kumar Mukherjee and one from a third party, named Satcowri Sett. The offer of Sushil Kumar Mukherjee was Rs. 36,500 while the offer of the Appellants was Rs. 36,000 and the offer of Satcowri Sett was the same. Sushil Kumar Mukherjee's offer was rejected at the very beginning, because it was coupled with a condition: that vacant possession must be given, but to give such possession was impossible, as had been expressly stated in the conditions of sale prepared for the public auction. It appears that the shares, now owned by Anil Krishna Ghosh and Sailendra Prosad Bose, belonged previously to one Sarat Chandra Bose who was continuing to reside in the premises in spite of having sold off his share. Sailendra Prosad Bose also was not likely to be more cooperative in regard to giving up possession of the portion which he was occupying. The conditions of sale had accordingly stated that the purchaser would have to obtain possession by taking steps on his own account and at his own expense. After rejecting the offer of Sushil Kumar Mukherjee on the ground: that it was a qualified offer, the meeting proceeded to the consideration of the two remaining offers which were unqualified, but before it did so, some of the terms of the sale were made clear. The solicitor for Anil Krishna Ghosh stated, and the solicitor for the plaintiff agreed, that one or the other of the two remaining offers might be accepted, provided the purchaser would not ask for either vacant possession or production of the original title deeds and would abide by the conditions of sale, of which he might have a copy from the plaintiff's solicitor before the agreement for sale was entered into. By conditions of sale were meant the conditions prepared at the time of the previous sale by public auction, for no fresh conditions had been drawn up for the purposes of a private sale. While the above opinion was expressed on behalf of the plaintiff and Anil Krishna Ghosh as regards the acceptance of the remaining two offers, Sailendra Prosad Bose was unwilling to express any opinion. Mr. B.K. Mukherjee whose clients had already submitted an unqualified offer and who heard the terms, made no comments thereon, but only asked whether the parties were prepared to give an undertaking not to let out the premises or any part thereof to tenants during the subsistence of the agreement for sale. All the parties promptly replied that they were prepared to give the undertaking asked for.;