MR. SHYAMAL KUMAR MUKHERJEE vs CHANDAN BARICK AND ORS
- Court
- Calcutta High Court
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IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
RESERVED ON:13.01.2026
DELIVERED ON:05.05.2026
Present:
The Hon’ble Justice Biswaroop Chowdhury
C.S NO. 1337 OF 1965
G.A-23 OF 2025
Mr. Shymal Kumar Mukherjee
VERSUS
Chandan Barick & Anr.
For the petitioner:
Mr. Shymal Kumar Mukherjee, Adv.
For the defendant nos. 1(b) to1(f):
Mr. Rupak Ghosh, Adv.
Mr. Anirudhya Dutta Adv.
Mr. Bijan Datta Adv.
Mr. Gaurab Kumar Das
Mr. P.K. Dutta, Sr. Adv.
Mr. Chanchal Kumar Dutta Adv.
Ms. Krishna Mullick, Adv.
Judgment on: May 05, 2026
For the defendant no. 2:
For the defendant no. 3(a) to 3(f), 8,
10 & 11:
Biswaroop Chowdhury,J:
The applicant/petitioner in the instant application is defendant no-2 (h) in the
suit for partition being C.S. 1337/1965 and have filed this application praying for the following
reliefs:
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a) A preliminary decree be passed in terms of the admitted lots by the parties more
particularly described in paragraph 14 and Annexure ‘A’ to the affidavit in support of
Masters Summons.
b) A commission be issued to an advocate with a direction upon him to partition the residential
property 194. Vivekananda Road as indicated in Lots ‘A’ and ‘B’ as agreed by the parties
more particularly described in the Annexure ‘A’ to the affidavit in support of Masters
Summons and thereafter, Final Terms of Settlement to be filed in Court for Final Decree in
the suit.
c) Such further and/or other order or orders be passed and/or direction or directions be given
as this Hon’ble Court deems fit and proper;
The contentions of the applicant may be summed up thus;
1. In or around 1965 one Smt Sailabala Dassi, Executrix of the Will of Kalipada Barrick since
deceased instituted the instant suit against the original defendants claiming the
following reliefs:
i) Leave under clause 12 of the letters patent.
ii) Declaration that the said 84, Cornwallis Street now called Bidhan Sarani Calcutta
and No. 8 and 12 Chittaranjan Avenue, Calcutta belong to and form a part of the
estate of Kalipada Barick deceased.
Ib) Possession of the said premises No. 8 and 12 Chittaranjan Avenue Calcutta.
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Ic) Declaration that the said indenture of conveyance dated 16 November 1965 is void
illegal and of no effect.
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Id) The said Indenture of conveyance dated 16 November 1965 be ordered to be
delivered up and cancelled.
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Ie) An Account be taken and/or enquiry be directed to ascertain in the amount of rents,
issues and profits realized by the defendants no. 8, 9, 10 and 11 from the said premises
No. 8 and 12, Chittaranjan Avenue Calcutta and decree for such sum as may be found
due and arriving to the said estate upon such enquiry.
iii) Administration of the Estate of Kalipada Barick since deceased.
iv) Accounts from the original defendants Sumbhunath Barick of his delings with
the said estate.
v) Accounts from the original defendants Sarajendra Nath Barick and Sachindra
Nath Barick.
vi) Decree for maintenance at the rate of Rs. 2000/- per month.
vii) Order for interim maintenance.
viii) Decree for arrears of maintenance at the aforesaid rate of 8 years prior to the
institution of the suit.
ix) Suitable house for separate maintenance.
x) Declaration of charge of maintainable upon estate of the said Testator.
xi) Receiver.
xii) Discovery.
xiii) Such further and other reliefs as may be necessary in the circumstances of the
case.
xiv) Costs.
2. All the original defendants have entered appearance in the suit and filed their respective
written statements.
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3. Subsequent to the completion of pleadings, the parties proceeded to adduce evidence,
wherein the testimony of witnesses and the production of documentary exhibits were
duly recorded.
4. Subsequent to the completion of pleadings the parties proceeded to adduce evidence
wherein the testimony of witnesses and the production of documentary exhibits were
duly recorded.
5. During the pendency of the instant suit, the original plaintiff, Smt. Sailabala Dassi died
intestate on June 22, 1977. As such by an order dated August 26, 1977, Mr. Pinakei
Chandra Ghosh was appointed Administrator-ad-Iitem to represent the interest of Smt.
Sailabala Dassi since deceased in the instant suit.
6. Thereafter time to time Administrators-ad-litem were appointed in the suit and recently
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Mr. Shymal Kumar Mukherjee Advocate by an order dated 24 May 2024 was appointed
as Administrator-ad-litem.
7. As considerable time has lapsed since the institution of the instant suit the original
defendants and some legal representatives have passed away, and as such their legal
heirs and representatives have been duly substituted in their place and stead.
8. In light of the protracted pendency of the suit for the last 40 years the parties herein
have endeavour to settle the disputes amicably.
9. Pursuant to the endeavour to amicably settle the disputes, a meeting was convened in
presence of the parties and their respective counsels. During this meeting, a mutually
accepted solution was devised wherein all properties were consolidated into 3 distinct
LOTS, to be distributed amongst 3 designated groups, group of Late Sambhunath Barick
(defendant no-1 series) group of Sarajendranath Barick (defendant no. 2 series) and
group of Sachindranath Barick (defendant no. 3 series).
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10. The allocation of properties of the estate were in the following LOTS.
LOT-‘A’
Allotted to Sambhu Nath Barick Group.
a) 84, Bidhan Sarani, Kolkata-700004 (Darpana Cinema with vacant building and three
shop rooms)
b) 86 Bidhan Sarani, Kolkata – 700004. (one shop room with vacant building)
c) 86/1. Bidhan Sarani, Kolkata-700004 (One shop room with vacant building).
d) 7C Kirti Mitra Lane, Kolkata-700004 (vacant Land with boundary wall).
e) 16. Barick Lane Kolkata-700006. (tenanted house).
f) 17, Barick Lane, Kolkata-700006 (tenanted house).
g) 180, Vivekananda Road, Kolkata-700006. (tenanted house).
h) 186, Vivekananda Road Kolkata-700006. (tenanted house).
i) 202A, Vivekananda Road Kolkata-700006. (tenanted house).
j) 202B Vivekananda Road Kolkata-700006. (tenanted house).
k) 202C Vivekananda Road, Kolkata-700006. (tenanted house).
l) 204 Vivekananda Road, Kolkata-700006. (tenanted house).
m) 206A, Vivekananda Road Kolkata-700006 (tenanted house).
n) 206B Vivekananda Road, Kolkata-700006 (tenanted house).
o) 208, Vivekananda Road, Kolkata-700006. (tenanted house).
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p) 1/3 share of 156A (Purbasha Housing Road) (Acquired Portion), Manicktala Main
Road, Kolkata Sale Proceeds and/or compensation money.
q) ½ of 194, Vivekananda Road Kolkata-700006 (the residential house as per sketch
plan).
r) P-466, Hemanta Mukherjee Sarani, Kolkata (Rup Kumar Barick)(vacant land).
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s) Darjeeling House property, (Sambhu Nath Barick) sold.
t) 50% of 122/1/1 APC Road, Kolkata-700006 (4 shop rooms only situated under 206,
Vivekananda Road, Kolkata-700006.)
LOT-‘B’
Allotted to Sarajendra Nath Barick Group.
a) 121B APC Road Kolkata-700006 (tenanted house)
b) 121A APC Road Kolkata-700006 (tenanted house)
c) 122/1B APC Road Kolkata-700006 (tenanted house)
d) 122/1A APC Road, Kolkata-700006 (tenanted house)
e) 122A, APC. Road, Kolkata-700006. (Chaya Cinema Hall with tenanted building).
f) 50% of 122/1/1 APC Road. Kolkata-700,006 except 4 shop rooms situated under
premises No. 206, APC. Road, Kolkata-700,006.
g) 122/2, APC Road, Kolkata-700006 (tenanted house)
h) 122/3A, APC, Road, Kolkata-700006 (vacant house occupied by Sunanda Barick).
i) 122/4A, APC Road Kolkata-700006 (tenanted house).
j) 122/5A APC Road Kolkata-700006. (tenanted house).
k) P-455, Hemanta Mukherjee Sarani Kolkata (Chandra Nath Barick Vacant land).
l) 259, Manicktala Main Road, Kolkata (Bandana Hazra Vacant Land).
m) 218, Bidhan Sarani, Kolkata (Sarajendra Nath Barick tenanted house).
n) Madhupur House Property (Sarojendra Nath Barick) (No trace).
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o) 1/3 of 156A (Purbasha Housing Road acquired portion) Manicktala Main Road,
Kolkata, Sale Proceeds and/or compensation money.
p) ½ of 194, Vivekananda Road Kolkata-700006 (residential house as per sketch plan).
LOT-C.
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Allotted to Sachindra Nath Barick Group.
a) 8 and 12 Chittaranjan Avenue Kolkata (Sachindra Nath Barick) including Sachindra
Nath Barick) including Sachin Barick. General Enterprises (P) Ltd.
b) P-20 Raja Basanta Roy Road. Kolkata (Sundar Nath Barick sold)
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c) 1/3 of compensation and/or Sale proceeds of premises No. 156A (Purbasha
Housing Road) Manicktala Main Road Kolkata.
11. Subsequently a series of meetings were conveyed amongst the parties herein with a
view to formalize and legitimize the proposed solution, thereby providing a conclusive
and legally binding resolution to the disputes.
12. In all such meetings except for the residential abode situated at 194 Vivekananda Road,
Kolkata, all the parties have agreed to and acknowledged, the partition plan outlined in
the aforesaid LOTS. In fact the share of the property situated at 194 Vivekananda Road,
Kolkata is determined and agreed upon by the parties. It is agreed upon that ½ share
would devolve upon Sambhunath Barick Group that is LOT “A” and the other ½ share
would devolve upon Sarojendra Nath Barick Group that is Lot ‘B’.
13. As, such with the sole exception of the residential abode situated at 194, Vivekananda
Road, Kolkata the parties herein have unanimously accepted the proposed partition
outlined in the minutes of meeting dated September 5, 2022, i.e. the allotment of Lots
and hence accepted the Lots, as mentioned aforesaid.
14. Acting on the accepted LOTS as aforesaid the group of Sambhunath Barick. (defendant
no. 1 series) has already sold a property situated in Darjeeling which falls within their
designated share in accepted LOT being ‘A’ as mentioned in the minutes of meeting
dated September 5, 2022. Similarly the group of Sachindra Nath Barick (defendant no. 3
series) has already sold a property situated at P-20. Raja Basanta Roy Road, Kolkata
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which falls within their designated share in accepted LOT being Lot ‘C’ as mentioned in
the minutes dated September 5, 2022.
15. The acts and conducts of the defendant no. 1 series and defendant no. 3 series show
that they have acknowledged and accepted the LOTS, as authenticated in the
settlement reached in the minutes of the meeting dated September 5, 2022, by
proceeding to deal with their respective shares in accordance therewith.
16. In view of the unequivocal acceptance and acknowledgment of the LOTS by the parties
there is no justification for any further delay in effecting the partition of the properties.
The residential property at 194, Vivekananda Road be partitioned by a Court appointed
commissioner in two different lots, in accordance with the agreed terms as
authenticated in the settlement of LOTS reached in the minutes of meeting dated
September 5, 2022 and the same should be implemented forthwith. Most of the parties
to the suit are over 75 years.
17. The reliefs claimed in the Master’s Summons be allowed.
18. The application is bona-fide and in the interest of justice.
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The defendant no. 2(b) to 2(i) filed supplementary affidavit on 23 June 2025 to the
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petition dated. 25 February 2025.
In the supplementary affidavit it is contended that properties of the estate were valued
twice in 1997 and 1998 pursuant to the orders of this Court.
It is further contended that subsequent to the meeting held on September 5, 2022 a
further valuation of the vacant portion on the back side of chaya cinema was made at the instance of
Ranjana Barick Sarbajit Barick and the deponent. As the valuation was undertaking at the instance of
Ranjana Barick the said report is currently in the possession of Ranjana Barick.
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It is also contended that the issue of valuation and re-valuation appears to be an
afterthought as Ranjana Barick or any of the parties herein did not raise any objections regarding the
valuation of the properties and its distribution based on such valuation until the filing of the Affidavit in
opposition in the instant application.
It is contended that Ranjana Barick’s intention is to prolong the suit given that she is
currently in possession and enjoyment of those portions of the estate which have been allotted to
different group and is commercially exploiting such portion for her benefit, being as follows:-
i) Sunanda Barick, brother of Ranjana Barick is enjoying the entire premises no.
122/3A. APC Road, Kolkata-700,006 for more than 30 years without paying any
KMC taxes and in fact this property is allotted to Sarojendra Nath Barick group
under LOT-B.
ii) Ranjana Barick has transformed the garage space situated in the compound of
the Chaya Cinema into a work shop and utilizing such space for commercial
purpose for years without paying anything to the estate. Chaya Cinema is
allotted under LOT B (Sarajendra Nath Barick group).
iii) Ranjana Barick is collecting rents from the tenants of the building situated
within the compound of Chaya Cinema for years. If the properties are divided
Ranjana Barick would be unable to collect such rents in as much as Chaya
Cinema is allotted under LOT B.
The defendant no. 3(f) Sarbajit Barick in reply to the application of defendant no. 2(h)
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has filed affidavit on 23 April 2025 23 day of June 2025, 31 day of July 2025, and 28 August 2025.
It is the contention of defendant no-3(f) that apart from the minutes dated 05/09/2022
there was an earlier meeting held by the representatives of three Groups on 12/10/2020, wherein
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representatives of three groups agreed that representatives of three branches shall convene a meeting
to finalize the settlement to put an end of all litigation for ever. It was also agreed in case the settlement
could not be finalized, suitable direction shall be obtained from the concerned Court to settle pending
litigation. He further contends that the wife of Kalipada Barick Smt. Saila Bala Dassi was appointed as
Executrix of the last Will and Testament of Late Kalipada Barick in the year 1919 and the suit for
administration was filed by the said Saila Bala Dassi as the Executrix in the year 1965. After the death of
the said Saila Bala Dassi, this Hon’ble Court by an order appointed Administrator Ad litem and time to
time by order change of personal was made. He also contends that apart from the property which is
under the Estate of Kalipada Barick purchased between 1919, and 1965, by the sons of Late Kalipada
Barrick is wrongly included in the joint family properties but actually the said properties are not within
the joint family property. He has prayed that list of properties marked X-1 to the affidavit be separated.
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Thereafter again on 31 Day of July 2025 respondent/defendant no-3(f) filed another
affidavit and stated that in the meeting dated 19/12/2020 the representative of three branches of Late
Kalipada Barick had decided mutually that the beneficiary of Sachindra Nath Barick shall be the absolute
and undisputed owner of the following properties which fall within LOT-C of the list of the properties.
a) Premises No.8 Chittaranjan Avenue, Barick Bhawan, Kolkata-700072.
b) P-20 Raja Basanta Roy Road, Kolkata.
c) One third share of the pending compensation arising of the acquired one Bigha
portion of premises No. 156A Manicktala Main Road Kolkata by the land Acquisition
Department Govt. of West Bengal.
It is also contended that in the said meeting dated 19/12/2020 it was specifically
mentioned that the beneficiaries of Late Sachindra Nath Barick will be relieved and released from the
litigations being quoted as follows:
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‘The beneficiaries of Late Sachindra Nath Barick will be relieved and released from all
litigations pending between the three groups including suit no-1337 of 1965 and its related application
with immediate effect. The other two groups namely the beneficiaries of Late Sambhunath Barick and
the beneficiaries of Late Sarajendranath Barick shall have no claim or right whatsoever over premises
No. 8, Chittaranjan Avenue, Kolkata-72, P-20, Raja Basanta Ray Road, Kolkata, and one third share of
compensation the one Bigha Land being a portion of 156A Maniktala main Road, Kolkata acquired by the
Govt. of West Bengal. It is also decided that the beneficiaries of Late Sachindra Nath Barick shall Pay one
third of all KMC liabilities Income Tax and Wealth Tax if any after adjustment of payment made to the
statutory authorities.’ It is also contended that a meeting was again held on 05/09/2022 at Bar Library
Club, in presence of the Advocates of the representatives of three groups where the representatives of
three groups were also present.
It is submitted that the branches of Sachindra Nath Barick be relieved from the present
litigation.
The defendant no. 1(e) in her affidavit in opposition to the application GA-23 of 2025
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has contended that the defendant No. 2(h) has filed this application who has only 1/18 share of
Kalipada Barick estate and he has no right to represent on behalf of other defendant nos. 2(b) to 2(g)
and 2(i) therefore the instant application cannot be taken into consideration without the consent of
other legal heirs of Late Sarjendra Nath Barick. The defendant no. 2(b) to 2(g) and 2(i) had filed an
application being No. 1625 of 2018, in the instant suit and for several other prayers, the affidavit has
already been exchanged between the parties and the said application is still pending for hearing by this
Hon’ble Court and those applications be taken up for analogous hearing.
It is further contended that one Kalipada Barick a wealthy inhabitant of the town of
Calcutta died on 07-11-1918 leaving behind him his widow Smt. Sailabala Dassi and three sons namely
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Sombhu Nath Barick, Sarajendra Nath Barick, and Sachindra Nath Barick all since deceased. The father of
the defendant no. 1(b) to 1(f) and grandfather of defendant no. 1(a) (i) was Late Sambhu Nath Barick.
The father of defendant Nos. 2(b) to 2(i) was Late Sarajendra Nath Barick and the father of defendant
no. 3(a), 3(b) and 3(f) father in law of defendant No. 3(i) and grandfather of defendant no. 3(e) was Late
Sachindra Nath Barick. The said Late Kalipada Barick also left his surviving three daughters namely
Bibabati Dassi, Savabati Dassi, and Late Haimabati all since deceased.
It is further contended that the said Kalipada Barick made and published his last Will and
Testament dated 06.11.1918 whereby he appointed Smt. Sailabala Dassi and her brother Bholanath
Barick all since deceased as Executrix and executor to his will. The probate of the said will was granted
by this Hon’ble Court.
By the said will Kalipada Barick inter alia directed that after payment of all debts the
executrix and executor shall purchase three houses for the three daughters of the testator, and
thereafter three sons of the Testator namely Sambhu Nath Barick, Sarajendra Nath Barick, and
Sachindra Nath Barick all since deceased will get equal share of the rest and residue of the Estate. By the
said will the testator did not give device or bequeath any legacy to his wife Sailabala Dassi. After the
death of Bholanath Barick in the year 1920, the said Smt. Sailabala Dassi became sole executrix to the
said estate of Kalipada Barick. In the year 1953 a plot of land being premises No-262 Vivekananda Road,
Kolkata was purchased by the executrix from CESC Ltd. and on the said land, three two storied houses
were built for the three daughters of late Kalipada Barick. Thereafter as disputes arose between the
legal heirs of the said three daughters in the year 1996, a Learned Co-ordinate Bench of this Court
directed to sell the three houses and to give the sale proceeds to the heirs of three daughters of
Kalipada Barick since deceased.
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As dispute arose between the three sons of Kalipada Barick and their mother Smt.
Sailabala Dassi the executrix, various suits were filed against each other. Apart from the present suit
being No. C.S. 1337 of 1965 there were various other suits filed, the partition suit being No.431 of 1974,
C.S. No. 258 of 1972, the suit of Darpana Cinema Hall Testamentary Suit being No. 117 of 1973 and C.S.
No. 122 of 1972, the suit of Chaya Cinema Hall. The said suits were dismissed previously. Except this
Administration suit being No. 1337 of 1965 no suits were restored to its original file and number.
The defendant no.1(e) has denied the contentions made in paragraph no. 2,3,4, and 5 of
the petition. It is particularly denied that a preliminary decree can be passed in terms of the admitted
lots by the parties as alleged and marked annexure ‘a’ to the affidavit in support of Master Summons. It
is further denied that commission can be issued for partition of residential property 194, Vivekananda
Road as indicated in LOT-A- and LOT-B as agreed by the parties more particularly described in Annexure
‘A’ to the affidavit in support of Master Summons and thereafter.
The defendant no. 1(e) has denied statements made in paragraph 6, 7, 8, and 9 and 10,
11 and 12 of the petition, save and except what are matters of record.
It is contended that the present application is filed by defendant no. 2(h) who is one of
the Legal heirs of Late Sarajendra Nath Barick but in the meeting dated 05/09/2022 no other legal heirs
of Sarajendra Nath Barick appeared. It is further contended in this partition suit such prayer for partition
cannot be prayed for. It is also contended by the said defendant that she attended the meeting on
behalf of the defendant Nos. 1(b) to 1(f) which was an initial stage discussion as to how the lots could be
distributed amongst the defendant no. 1(a)(i) at such meeting. It is contended that such minutes do not
show that the parties had unequivocally given consent to such LOT’s of property but initially had
decided that the properties could be divided in such manner but no conclusive result had been arrived
at between the parties. Neither proper valuation nor measurements of the said properties had been
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done by the parties. The distribution of the properties should be in equal share amongst all the heirs as
to the residue which remains as stated in the Will and probate of Kali Pada Barick since deceased. No
one appeared on behalf of the defendant nos. 2(b), to 2(g) and 2(i). Except defendant no. 3(b) and 3(f)
no one appeared on behalf of the defendant no-3 group. Hence the minute dated. 05-09-2022 was not
unanimously decided by all the parties as it was not signed by all the legal heirs more so being the
defendants Nos. 2(b) to 2(g) and 2(i). The estate of Kalipada Barick is vast and there are large numbers
of properties for which without explicit consent by all the parties, the properties cannot be partitioned
as per choice of some of the parties.
It is also contended that the said defendant attended the meeting to settle the disputes
between the parties but all the parties were not present at the meeting. The estate of Kalipada Barick is
vast and to that effect all the beneficiaries must be agreeable to the partition amongst the 3 group of
beneficiaries. With reference to paragraph 14 of the petition the defendant has contended that without
appointing surveyor and valuer and/or taking proper measurement and valuation, the property cannot
be divided and partitioned in equal shares. It is further contended that a series of meeting were
convened against the parties herein with a view to formalize and legitimate the proposed solution
thereby to provide a conclusive and legally binding resolution to the disputes, the meeting was not
completed and/or finalized which was scheduled to be fixed on 22-09-2022. It is also contended that the
defendant was constrained to sale the Darjeeling property which was absolutely owned by her father
Late Sambhu Nath Barick due to rampant encroachment being caused by third parties and such sale
happened when no interim orders was prevailing nor any suit or proceedings were pending. Similarly
the group Sarajendranath Barick being defendant no. 2(b) to 2(i) had also sold a property situated at
Madhupur District-Deoghor State of Jharkhand which has been clearly suppressed by the applicant
herein. It is also contended that defendant no. 2(h) Chandra Nath Barick during pendency of the instant
application contacted with several brokers invited offer letters for sale of the properties since 2018. Out
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of the offers one had been selected who by consent of the parties took measurement of four properties
situated at Bidhan Sarani, Kolkata by LBS surveyor and valuer and further proceeded with the tenants of
the buildings thereby spent huge sum of money.
The defendant submits that the application is misconceived and the same should be
dismissed.
The defendant no-2(b) to 2(i) submitted affidavit in reply to the affidavit in opposition of
defendants nos. 3(b), 3(f), 8, 10, and 11.
The defendant no-2(b) to 2(i) in reference to paragraph 6 of the said affidavit contended
as follows:-
i) To bring a conclusive end to the ongoing litigations it was decided that all 38
properties 26 properties left by Kalipada Barick and 12 properties acquired after
the grant to probate, would be included as a part of the estate.
ii) Out of the said 38 properties 36 properties, would undergo valuation and
measurements to facilitate the preparation of LOTS. The properties of 8 and 12.
Chittaranjan Avenue and P-20, Basanta Ray Road would not be valued or
measured and would be allotted to Saichendra Nath Barick group. i.e. LOT-C. In
furtherance of the properties of 8 and 12 Chittaranjan Avenue and P-20.
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Basanta Roy Road, the Sachindra Nath Barick group would get 1/3 amount of
the sale consideration part of the property situated at 156A, Purbasha Housing
Road Kolkata Apart from those Sachindra Nath Barick group would have no
claim from these joint estate properties.
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iii) The LOTS would be prepared based on critical factors such as location area, and
valuation of the properties. This approach would ensure that the properties are
divided and allocated in a fair and equitable manner.
iv) Properties standing in the name of an individual would be allocated to the group
that the individual represents.
v) Each group would hand over possession of properties to other groups where
necessary.
vi) It was agreed that the licensee of Chaya Cinema Hall would be changed from
Ranjana Barick to Indra Nath Barick.
vii) The rights of the Bengali film ‘Chandranath’, including negative positive rights,
T.V. Satellites and all other rights would be allocated to the Sarojendra Nath
Barick group. Similarly rights of the Bengali film ‘Jautuk’ including negative
positive rights, TV Satellites and all other rights would be allocated to the
Sambhunath Barick group. As such it was agreed upon that the legal heirs of the
three groups agreed to consider all 38 properties mentioned in paragraph 14 of
the said application as joint properties albeit those are purchases in the
individual’s name. It was further agreed that, except 8 and 12, Chittaranjan
Avenue and P-20, Basanta Ray Road properties the remaining properties, would
be evaluated and divided into LOTS. In fact it was mutually agreed that
properties purchased in individual names would be allocated to their respective
groups’ LOTS as part of the settlement. In accordance with this settlement the
LOTS were subsequently formed allotted and accepted by all the parties herein.
As such the properties mentioned in Annexure X-1 to the said affidavit are all
joint estate and cannot be separated.
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The applicants/defendants no. 2(b) to 2(i) with respect to paragraph 7 to 10 of the said
affidavit has denied that list of properties stated in annexure X-1 to the said affidavit be separated from
the joint family as alleged or at all. From the minutes of the meeting dated July 27, 2009, February 23,
2004, October 12, 2020, December 19, 2020, September 5, 2022, it is manifestly clear that Saileindra
Nath Barick group accepted the allotment of LOTC since long. Furthermore in order to maintain all the
38 properties, joint funds were utilized. As such the current claim that the properties listed in Annexure
X-1 are not joint properties seems to be an afterthought. In fact the Sachindra Nath Barick group,
without any intimation to the other groups sold the property situated at P-20. Raja Basanta Roy Road
which is illegal in asmuch as that was a joint property and it was sold during the pendency of the instant
suit. It is submitted that no order is warranted to release the properties mentioned in annexure X-1 in
the said affidavit inasmuch as the properties are joint properties.
The defendant no. 2(h)/applicant has also filed affidavit in reply to the affidavit in
opposition of defendant no. 3(f) affirmed on July 31, 2025.
With regard to paragraph 3,4 and 5 of the said affidavit it is contended that the
settlement reached amongst the parties is predicted on the condition that each group shall accept the
designated LOT’s. In the event the said LOT’s are not implemented wholly or completely the allocation
of LOT C to the Late Sachindra Nath Barick group shall not be considered valid or enforceable. It is
further contended that settlement cannot be effected or implemented in a piecemeal manner,
necessitating comprehensive adherence to the LOTS.
With reference to paragraph 6, and 7 of the affidavit in opposition the applicant has
denied and disputed that the branches of Sachindra Nath Barick be relieved from the present litigation
as alleged or at all. It is contended that the LOT’s were formulated and agreed upon with the specific
objective of settling the dispute amongst the parties. In the event the agreed LOTs are not implemented
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or effected, the entirety of the LOTs shall be deemed rejected. Consequently there shall be no operative
LOTs, and all parties shall retain an undivided share in all properties of the estate. Furthermore it is
emphasized that the LOTs cannot be implemented in a piecemeal manner necessitating a
comprehensive and holistic approach to the implementation of the LOTs. It is further repeated and
reiterated that the said Ranjana Barick also accepted LOT A by selling the Darjeeling property and the
Sachindra Nath Barick group also accepted LOT C by selling a property situated at P-20. Raja Basanta Ray
Road Kolkata. It is also contended that in view, of accepting the LOTs through the mechanism of selling
property therefrom the parties cannot now deny or repudiate the validity or binding nature of the said
LOTs by virtue of having proceeded on the basis of accepting the LOTs with the understanding of selling
property in accordance therewith the parties are bound by the agreed LOTs and cannot unilaterally
retreat or deny their acceptance thereof.
Now with regard to the affidavit in opposition filed by Ranjana Barick the defendant no.
1(e) herein the defendant no. 2(h) has denied the allegations contained therein.
The contentions made in the affidavit in reply may be summed up thus:
With regard to the paragraph 3 of the affidavit in opposition by Ranjana Barick the
defendant no. 2(h) has denied the allegations made therein. The defendant has denied and disputed
that defendant no. 2(h) has no right to represent on behalf of the other defendant nos. 2(b) to 2(h) and
2(i) or the instant application cannot be taken into consideration without the consent of other legal
heirs of Late Sarajendra Nath Barick as alleged or at all. It is contended that all the legal heirs of
Sarajendra Nath Barick have given consent to the said application. It will appear from various minutes of
the meeting held amongst parties that defendant no. 2(h) has represented the group of Sarajendra Nath
Barick. It is also contended that G.A. 1625 of 2018 is on completely different aspect and has no
connection with this application.
19
With reference to paragraph-4 of the said affidavit the defendant has denied the
allegations. It is contended that Kalipada Barick made and published his Last Will and Testament on
September 11, 1919 and not on 06.11.1918. At the time of sale of premises no. 262, Vivekananda Road,
Ranjana Barick represented the group of Sambhu Nath Barick in the year 1990, Ranjana Barick all along
represented the group of Sambhu Nath Barick in all the meetings including before the administrator of
the estate and amongst the parties. Hence it is manifestly clear that Ranjana Barick all along represented
the group of Sambhu Nath Barick. In fact in all the applications and/or affidavits filed by the Sambhu
Nath Barick group.
With reference to paragraphs 7,8, and 9 of the affidavit in opposition the defendant has
denied the allegations which are contrary to record. The defendant no. 2(h) has contended that upon
bare perusal of the minutes of the meeting dated September 5, 2022 it would be manifestly clear that
defendant no. 2(h) represented the group of Sarojendra Nath Barick. He denied that the residential
property at 194, Vivekananda Road cannot be partitioned amicably by the parties herein. In fact, if
required the Learned Advocate Commissioner can take assistance of engineer Commissioner for proper
partition of residential property. It is denied that the meeting held on 5-06-2022 was an initial meeting,
and it is contended that such meetings were held several times and Ranjana Barick represented the
group of Sambhu Nath Barick this valuation issue is an afterthought in order to further stretch the suit
which is pending since 1965. It is denied that such minutes do not show that the parties had
unequivocally given consent to such LOTs of property or no conclusive result had been arrived at
between the parties as alleged or at all. It is further contended that valuation of the properties was done
twice in 1997 and 1998 in terms of the orders of this Hon’ble Court. After considering the valuation
location and condition of the properties such LOTs were allotted and/or distributed amongst the parties
which the parties have accepted without any protest Now revaluation would not only cause financial
20
burden on the estate but also pro-long the litigation. Furthermore such revaluation is not necessary in as
much as considering every aspect LOTs were prepared.
With reference to the paragraphs 10, and 11 of the said affidavit the defendant no-2(h)
has contended that although all the parties were not present at the said meeting however every group
was represented and also the Learned Advocates of the parties were present.
Lots were agreed upon after considering all aspect including valuation and such LOT’s
were accepted by all the parties and now in order to delay the settlement of the disputes these baseless
issues are raised.
With regard to paragraphs 12 to 15 of the said affidavit the said contentions are denied
by the defendant no. 2h and statements made in paragraphs 15 to 20 of the application are reiterated.
It is contended that after considering every aspect the LOTs were allotted and accepted by the parties. It
is further contended that the Darjeeling Property was a joint property hence, Ranjana Barick had no
authority to sell and/or transfer the same without the consent of all the parties herein. Such sale
process has been done by practicing fraud and by suppressing material facts. By selling the Darjeeling
property at a price of Rs. 43,51,100/- without the knowledge and consent of the other beneficiaries,
Ranjana Barick utilized the said amount for her own benefit which shows the mala fide intention of
Ranjana Barick. Likewise Ranjana Barick is now trying to sell transfer and/or alienate estates property
situated at 466 Hemanta Mukhopadhyay Sarani, Kolkata. As such it is clear that pending litigation
Ranjana Barick is trying to alienate estates property and wants to reap benefit from it. It is also
contended that property was measured and valuation was done thereafter the LOTs were agreed upon
by the parties.
With regard to paragraphs 16 to 21 defendant no. 2(h) denied the allegations contained
therein and reiterated the statements made in Paragraph 21 to 24 of the said application. It is
21
contended that certain signed blank cheques were handed over to Sarbajit Barick for the purpose of
encashment from Axis Bank Joint account at the same premises where Sarbajit Barick resides to
facilitate the administration of the estate by accessing funds as and when required. It is further
contended that encashing such cheques without knowledge and consent said Sarbajit Barick paid by
Cheque No. 144557 dated 20-03-2025 for Rs. 79,840/- to the advocate for the purpose for appointment
of Joint Receiver in respect of Darpana property. It is also contended that he has no consent to such sale
proceeding.
The defendant no. 2(h) has also filed affidavit in reply to the affidavit in opposition of
Ranjana Barrick the defendant no. 1(e) affirmed against the supplementary affidavit of Chandra Nath
Barick to the application for preliminary decree being IA. GA. 23 of 2025 filed by the applicant in the
instant suit.
The defendant no. 2(h) has denied the allegation that supplementary affidavit is filed to
delay the proceedings. It is contended by the said defendant that the Notorized Power of Attorney was
executed in the year 2008 and thereafter in as much as Chandra Nath Barick was looking after the
instant suit on behalf of Sarojendra Nath Barick group all the other legal heirs gave consent to Chandra
Nath Barick to represent Sarajendra Nath Barrick group. The letter dated November 10, 1995 was not
issued in respect of the said power of attorney as the letter was issued in the year 1995 and the power
of attorney executed in the year 2008.
With regard to paragraph 4 and 5 of the said affidavit defendant no. 2(h) denied the
allegations made therein. It is contended that the yardstick for valuation of the properties was
considered on the basis of rental income which was agreed by the parties. Furthermore, as the valuation
of one property increases the valuation of the other property would correspondingly increase, thereby
maintaining a proportionate relationship between them. Consequently this Synchonised increase would
22
ensure that no prejudice or detriment would be caused to any party. It is further contended that the
valuation was done way back in the year 1997 and since 1997 none of the parties raised objection
regarding the valuation report. Now at the final juncture, such frivolous objections are raised in order to
delay the matter. Additionally, the property at P-466 Hemanta Mukhopadhyay Sarani is situated over
main road, and the area of the said property, which is 6.13. Cottahs is also more than that of P-455,
Hemanta Mukhopadhyay Sarani which is 5.5 Cottahs so naturally the valuation of the P-466 would be
more.
With reference to paragraph 7 of the said affidavit, the defendant no-2(h) denied the
allegations made therein. He denied that Ranjana Barick told the defendant no. 2(h) or defendant no.
3(f) that the valuation done by the two valuers are not correct or according to law as alleged or at all. It
is denied that rental valuation cannot be accepted. It is further contended that premises no. 122A, APC,
Road includes Chaya Cinema a three storeyed building and a vacant land. The said premises was
tenanted to Sarajendra Nath Barick by the estate and now, the legal heirs of Sarajendra Nath Barrick is
paying rent to the estate in respect of the said property, hence the question of depriving other
beneficiaries of the estate does not and cannot arise.
With reference to Paragraph 8 to 12 of the affidavit the defendant no-2h denied the
allegations made therein and reiterated the statements made in paragraph 5, 6, and 7 of the
supplementary affidavit. It is contended that the vacant rooms in 194 Vivekananda Road property are
still in possession of Ranjana Barick. In the event the settlement progressed vacant rooms which are in
possession of Ranjana Barick have to be vacated and as such Ranjana Barick is not willing to progress the
settlement. He has denied that the said garages are absolutely allotted or owned by each party as
alleged or at all. The garage spaces are under the tenancy of Chaya Cinema. At the request of other
groups Sarajendra Nath Group allowed the other groups to keep car thereat, however Ranjana Barick
23
transformed the garage space in a workshop and utilizing it for commercial purpose. The lessee at
Premises no. 122A APC Road is neither paying rent to the estate nor to the special officer.
The applicant/defendant no-2(h) submits that the application GA-23 of 2025 be allowed.
Heard Learned Advocates for the parties. Perused the petition filed and materials on
record.
Learned Advocate for the applicant/defendant no. 2(h) submits that in light of the
protracted pendency of the suit the parties since long have endeavoured to settle the disputes amicably.
Pursuant to the endeavour to amicably settle, the disputes several meetings have been held by the
parties from time to time. Learned Advocate further submits that on September 5, 2022 a final meeting
was convened in presence of the parties and their respective counsel.
During this meeting, a mutually accepted solution was devised wherein the disputed
properties were consolidated into 3 distinct LOTs to be distributed amongst 3 designated groups of Late
Sambhunath Barik (defendant no. 1 series) group of Sarajendranath Barick/defendant no. 2 series) and
group of Sachindranath Barick (defendant no. 3 series) which is specifically mentioned in the minutes of
the meeting dated September 5, 2022. Learned Advocate also submits that the LOTs system was
consensually agreed upon and adapted by the three groups as far back as 2004, and has been in
operation since then thereby forming a binding arrangement amongst the parties.
Learned Advocate submits that in 2004, LOTs system was finalized wherein the
properties of the estate were amicably divided into three distinct Lots with the objective of providing a
mutually acceptable and equitable distribution amongst the parties. Learned Advocate draws attention
rd
to Annexure D of the affidavit affirmed by Ranjana Barick on 3 July 2025. It is further submitted that
out of 3 LOTs, the properties under LOT A allotted to Sambhu Nath Barick group (defendant no-1 series)
24
LOT B allotted to Sarjendra Nath Barick Group (defendant no. 3 series). The defendant no. 1 and 3 series
did not dispute the properties mentioned under the different LOTs in the instant application.
The LOTs were finalized and allotted only after taking into account and duly considering
the valuations of all the properties, ensuring a fair and equitable distribution amongst the parties.
Learned Advocate also submits that defendant no. 1 series and defendant no. 3 series
have accepted the LOTs and have acted in terms of such allocation of LOTS by selling properties from
their respective LOTS. The defendant no-1 series sold Darjeeling property being item no. 17 in the year
2017 and similarly the defendant no-3 series sold P-20 Raja Basanta Ray Road being item no. 1(b)
rd
mentioned in the minutes of meetings dated 23 February, 2004.
Learned Advocate submits that the defendants have acquisced to the LOTS system by
their action having accepted and acted upon it without demur. Having done so it would be
impermissible for them to now resile from their earlier stance and approbate and reprobate at the same
th
time. From the minutes of the meeting dated 6 July 2015 it is evident that all the three group accepted
their one third share respectively. The document appearing at Pg-23 of the affidavit-in-reply of
rd
Chandranath Barick, affirmed on 23 April 2025, it is evident of the fact that the defendant no. 1 group
has accepted the Darjeeling property to be their own way back in April 2016. This property was a part of
the estate of Kalipada Barick.
Learned Advocate further submits that Ranjana Barick in her affidavit has stated she is
willing to accept LOT A subject to revaluation, which is an afterthought in as much as the valuation of all
the properties were done in the year 1997 and 1998. After such valuation the LOTs were allotted and
more importantly having accepted the LOT A and acted in terms thereof by selling Darjeeling property,
the question of any further valuation cannot and does not arise at all.
25
Learned Advocate also submits that the defendant no-1 series is attempting to obstruct
the settlement by raising objections motivated by the fact that Ranjana Barick is utilizing certain
portions of Chaya Cinema property which falls within LOT B, and deriving benefits therefrom.
Furthermore Sunanda Barick brother of Ranjana Barick is exclusively enjoying the 122/3A APC Road
property which also forms part of LOT B.
It is submitted by Learned Advocate that in a suit for administration orders prayed for
come under the scope of Court’s power under Order 20 Rule 13 of the Code of Civil Procedure 1908.
It is further submitted that LOT system was finalized with the intention of bringing a
comprehensive and final end to the litigation and any piecemeal settlement would be contrary to the
spirit of the agreement and undermine the very purpose of the LOTs system which is to provide a
complete and final resolution to the disputes.
Learned Advocate also submits that this application be allowed.
Learned Advocate for the Defendant Nos. 3[a] to 3[f] and 8,10, and 11 submits that the
said administration suit is pending for Last 60 years several applications were filed from time to time
and diverse orders were also passed from time to time by this Hon’ble Court concerning with the said
immoveable property.
Learned Advocate further submits that at one stage question of the valuation of the
properties cropped up. The Hon’ble Division Bench of this Court presided by the Hon’ble Justice Umesh
Chandra Banerjee and Hon’ble Justice Altamas Kabir by an order dated 20-01-1998 directed for
valuation of all the properties of Barick’s excluding the premises No. 8 and 12, Chittaranjan Avenue
Kolkata 194 Vivekananda Road Kolkata 156A and 156B, Maniktala Main Road, Kolkata and 170B,
26
Maniktala Main Road, Kolkata respectively which were subsequently mutually allotted in favour of
Sachindra Barick groups being LOT-‘C’.
Eventually good sense had prevailed. The three groups had mutually settled dispute
amongst themselves by dividing the properties in three different lots being LOT A, LOT B, and LOT C.
These three lots were specifically recorded in the joint meeting of the parties held on 19.12.2020 and
was followed by a previous meeting held between the parties on 12-10-2020.
Learned Advocate also submits that the parties representing three groups had not only
accepted the said settlement but had also acted upon the same. It is submitted by the Learned Advocate
that Ranjana Barick’s group (LOT A) sold and Conveyed Darjeeling properties which was allotted in their
favour by a Deed of conveyance dated 05-07-2016 at a valuable consideration and appropriated the
entire consideration money by themselves. Similarly Ranjana Barik’s group had also transferred the
premises no P-466, Hemanta Mukhopadhyay Sarani, Kolkata by way of registered Deed of Gift dated
th
17 May 2024. Likewise Sachindranath Barik’s group had also sold and/or transferred the premises no-
P-20 Raja Basanta Ray Road, Kolkata by a Deed of Conveyance which was allocated in their favour.
Learned Advocate also submits that it is an admitted position that the parties to the suit belonging to
three separate groups got entire properties amicably divided amongst themselves by three different lots
and duly acted upon the same. There is no further scope to reopen the said settled issues any more.
Learned Advocate relies upon the following Judicial decisions:-
Shiva Prasad Singh VS Prayaya Kumari Debee and ors.
Reported in AIR-1935 Cal-39.
Goswami Rameshpuri Gwell Maheshpuri and another. VS Madhukar and other.
Reported in AIR-1953 Nagpur-276.
27
Daulatpuri VS Hiraman
Reported in AIR 1953. Nag-279.
Ramankulty Guptain VS Avara.
(1994) 2 SCC-642.
Duarike Prasad VS Prithvi Raj Singh
Arising out of SLP(L) No. 11259 of 2022.
Supreme Court of India.
Learned Advocate for Defendant No. 1(b) to 1(f) submits that the suit was for
declaration rather than partition or administration of the estate. It is also imperative to note that such
suit was filed against the three sons of Kalipada Barick one of whom is a legal heir of one of the sons
being the applicant who filed this application praying for partition by LOTs.
It is submitted that the plaint was amended vide order dated 20-02-1973 reported in
AIR-1973 Cal 378 wherein the said order stated in paragraph 6 provides as follows:
“The facts were undoubtedly there in the plaint as it was originally drafted but the
question of getting a declaration for that purpose was not considered at that time and the same ought
to be allowed so that the said question may be gone into and decided at the trial and the rights of the
parties herein may be finally determined’.
Learned Advocate also submits that in clause no. 5 of the Will of the said Kalipada Barick
provides that ‘My sons shall get in a equal shares the residue which shall remain’, referring to the
properties of the Estate.
28
Learned Advocate submits that by order dated 20-02-1973 reported in AIR-1973 Cal-378
the properties being No. 84, Cornwallis Street now Bidhan Sarawani and 8 and 12, CR. Avenue were
incorporated in the instant suit wherein it was held that in paragraph no. 6……’question may be gone
into and decided at the trial and the rights of the parties herein may be finally determined”. The same
stand has also been adapted by the Defendant no. 3 group in paragraph no. 12 of the said affidavit in
opposition dated 24-08-2025 which is undecided in the suit till date. Thus the suit wherein the said
issues are yet to be decided cannot be decreed and/or disposed of by dint of the application of the
defendant No. 2(h). It is submitted that the relief which defendant no. 2H has sought is possible in a suit
for partition and not in a suit for declaration or even in a suit for administration. Particularly so because
preliminary decree has to be passed in terms of Order XX Rule 13 and other provisions of the Code of
Civil Procedure.
Learned Advocate further submits that for proper valuation as per the market value it is
necessary to assess all the properties as per guideline of Registrar of Assurances, to be assessed by the
Registering Authority and not on the rental value basis done in the year 1997 through a private valuer.
Without proper valuation of the entire properties as per the present market rate, the properties of the
estate cannot be partitioned in equal shares as per the direction of Will and Probate granted by the
Hon’ble Court. It is also submitted that the application in the present form is not maintainable in as
much as the suit is a suit for declaration in its essence and is not even a suit for administration although
there have been a stray prayer for administration. Question of directing partition even assuming that it
is a suit for administration is also not permissible.
The following decision is relied upon Smt. Sailabala Dassi
VS Sambhuinath Barick. Reported in AIR-1973 Cal-378.
29
Before proceeding to decide the material in issue the eyes of this Court goes to the year
when the instant suit was instituted being 60 years from today with the fact all original parties to the
suit as well as some successors died in the meantime and some portion of the suit property already
transferred to third parties.
The Original Suit instituted by Sailabala Dassi widow of Kalipada Barrick since deceased
sought different reliefs. Although declaration was sought for with regard to premises situated at 84
Cornwallis Street and 8 and 12 Chittaranjan avenue but as the estate of Kalipada Barick since deceased
consisted of several properties Administration of the said estate was prayed for. One of the allegations
against the original defendants no. 1 to 3 are quoted as follows:
‘The said defendant Nos. 1 to 3 in collusion with each other have been managing the
said estate and enjoying the entire profits thereof to the exclusion of the plaintiff. The said defendants
have kept the plaintiff in complete dark about the affairs of the said estate.’
The plaintiff had also prayed separate premises as well as maintenance. As a relief is
sought for administration of the entire suit property it is necessary to consider the provisions contained
in Order 20 Rule 13 of the Code of Civil Procedure and some judicial decisions:-
Order 20 Rule 13 CPC provides as follows:-
Rule-13 Decree in administration suit.
1) Where a suit is for an account of any property and for its due administration under
the decree of the Court, the Court shall before passing the final decree pass a
preliminary decree ordering such accounts and inquiries to be taken and made and
given such other directions as it thinks fit.
30
2) In the administration by the Court of the property of any deceased person, if such
property proves to be insuffient for the payment in full of his debts and liabilities
proveable and as to the valuation of annuities and future and contingent liabilities
respectively as may be in force for the time being, within the local limits of the Court
in which the administration-suit is pending with respect to the estates of persons
adjudged or declared insolvent and all persons who in any such case would be
entitled to be paid out of such property, may come in under the preliminary decree
and make such claims against the same as they may respectively be entitled to by
virtue of this Code.
In the instant suit pursuant to the death of the Original Plaintiff Administrator-ad-Litem was
appointed from time to time.
In the plaint the plaintiff although had prayed for different reliefs including challenge of sale of
property by one of the defendant but she had also prayed for Administration of the estate of Kalipada
Barik since deceased and Accounts from the defendants Sambhunath Barik since deceased, Sarajendra
Nath Barik since deceased and Sachindra Nath Barik since deceased.
It is held in different Judicial pronouncements that suit for administration is in essence a suit for
an account and application of the estate of a deceased debtor for the satisfaction of the dues of all his
creditors. The entire administration and settlement of the estate are assumed by the Court.
Now the point for consideration is whether in a suit for Administration Courts are empowered
to direct partition of properties. In order to consider this issue it is necessary consider some judicial
pronouncement.
31
In the case of Shiva Prasad VS Prayag Kumar reported in AIR-1935 Calcutta-39 it was observed as
follows:
‘Nature of the present suit.-The next question is, what is the true nature of the present suit. Mr.
Das has strenuously contended that this is a suit in the nature of an administration action.
“Administration” means the management of the estate of a deceased person who has left no
executor. The object of an administration suit is to have the estate administered under a decree of the
Court; in such a suit the whole administration and settlement of the estate are assumed by the Court; the
suit in its essence is one for an account and for application of the estate of the deceased for the
satisfaction of the dues of all the creditors and for the benefit of all others who are entitled, and the
Court marshals the assets and makes such a decree. The administration consists, generally speaking, in
the payment of the funeral expenses of the deceased, in the payment of debts and legacies and in the
collection, realization, preservation and distribution of the assets.’
It was further observed as follows:
‘We have already said in a previous part of this judgment that the present suit, in our opinion, is
not in the nature of an administration suit. Under the orders of remand, which this Court made, no
accounts had been directed. So, cases in which after a general account was ordered, further accounts on
the footing of willful default have been directed are in our judgment not quite relevant. There is, of,
course, the inherent power, which the Code has reserved to every Court under S. 151 to make such orders
as should be made exdibito justice and every Court should have in view the shortening of litigation
preventing duplication of proceedings, and saving the parties from harassment and expense. And delay,
by itself, is not sufficient to deprive a party of his remedies, if such delay does not amount to waiver,
acquiescence or abandonment of his claim or has not created a corresponding right in his opponent on
extinguishment of his own.’
32
In the case of Goswami Rameshpuri Guru Maheshpuri and Anr VS Madhukar and ors reported in
AIR-1953 Nagpur. P-276 the Hon’ble Court observed as follows:
‘The argument of the Learned Advocate General proceeds on a misconception of the object,
nature, and scope of an administration suit. ‘Administration’ is management of the estate of a deceased
person who has left no executor. It consists of getting in the debts due to the deceased and collecting his
other assets, payment of funeral expenses, payment of his secured and unsecured creditors, payment of
pecuniary and other legacies, and after defraying the cost of management, final distribution of the
remaining estate among the residuary legatees or amongst heirs as the case may be. No doubt, there
may be strangers who claim the estate or any portion thereof adversely to the testator and the
administrator has to collect even such estate. All this is done by an executor or executors appointed by
the Court if there is no such executor or in case of intestacy. A suit for such administration of the estate
of a deceased is known as an administration suit.’
It is also necessary to refer the following Judicial decision not relied by any of the parties.
K.K. Thankappan and others. VS K.S. Jayan and ors.
Reported in AIR-2003 Kerala 114.
In the case of KK. Thankappan. The Hon’ble Court observed as follows:
“The right to institute a suit for administration is distinct from the procedure prescribed by the
Code or by any other law for trial of that suit. It would be incorrect to rely too much on O. 20, R. 13 or the
forms of plaints and decrees prescribed in Sch. I of the Code for ascertaining the objects of an
administration suit. Order 20 bears the title “judgment and decree” and is devoted to the form in which
judgments should be delivered and decrees passed in particular cases. The forms are not exhaustive and
R. 13 itself enables the Court to give any direction that it thinks fit. “Administration” means management
33
and disposal of an estate, whether it be that of a deceased person or of any other person. The power to
entertain an administration suit is given not by O. 20, R. 13 but by S. 9 of the Code and if a suit for the
administration of an estate is not barred expressly or impliedly by any provision of law, it must be
entertained. It would appear that an administration suit need not necessarily relate to the estate of a
deceased person”.
Although Learned Advocate representing Defendant No. 1(b) to 1(f) submits that the decisions
relied upon by the Learned Advocate for defendant no. 3(a) to 3(f) 8, 10, and 11 do not observe about
partition but from the decisions relied there is indication that Courts in exercise of inherent power to do
justice may direct partition in a suit for administration.
In the case of Goswami Rameshpuri VS Madhukar (supra) the Hon’ble Court observed that
Administration’ is management of the estate of a deceased person who has left no executor. It consists
of getting in the debts due to the deceased and collecting his other assets, payment of funeral expenses,
payment of his secured and unsecured creditors, payment of pecuniary and other legacies and after
defraying the cost of management, final distribution of the remaining estate among the residuary
legatees as amongst heirs as the case may be. It was further observed that it is not the endeavour to
present an exhaustive analysis of the scape of administration suits which is bound to vary with the
circumstances of each case.
In the case of K.K. Thankappan and others VS K.S. Jayan and others (supra) it was observed that
Forms of plaints are not exhaustive and Rule 13 itself enables the Court to give any direction that it
thinks fit. It was further observed that ‘Administration’ means management and disposal of an estate
whether it be that of a deceased person or of any other person.
In the case of ‘Mahbub in AIR 1950 Lah. 12 it was observed that administration suit is
maintainable in respect of the estate of a deceased person or any other person.
34
Thus from the judicial decisions and considering the inherent power under Section 151 of the
Code of Civil Procedure to do justice Courts in an Administration suit upon directing inquiry accounts
and payment of debts due can resolve the disputs between the co-sharers and legatees about their
extent of right to the assets left by the deceased testator by declaring their shares and allotment of the
same by mets and bounds. Right to property is a basic right. All persons having ownership of any
property whole or in part have right to use the same without being obstructed by others.
When there is a dispute with regard to right of certain properties by legatees and there are
allegations of mismanagement, alienation to third parties without consent of co-sharers, Courts in an
administration suit apart from directing inquiries and accounts, in exercise of inherent power to do
justice has the power to direct partition, where the said suit is pending for several years and there are
subsequent developments. Relegating the parties to a separate suit would cause immense hardship
when the parties have agreed to resolve their disputes. In this regard it would be reasonable to quote
the following observation of Lord Denim.
‘Law does not stand still. It moves continually. Once this is recognized, then the task of the
Judge is put on a higher plane. He must consciously seek to mould the law so as to serve the needs of
the time must not be a mere mechanic, a mere working mason, laying brick on brick without thought to
the overall design. He must be an architect – thinking of the structure as a whole, building for a society a
system of law which is strong durable and just. It is on his work that civilized society itself depends.”
In the instant case considering the fact that this Administration suit is pending for sixty years,
the fact all the original parties to the suit and some of their successors are dead and that there are
subsequent development and sale of some of the suit property, and that the parties for the purpose of
settlement of the entire dispute sat in different meetings to partition the properties by LOTS this Court
is of the view that the issue of partition should be considered.
35
Now as the ground for the relief is that the parties agreed to partition the suit property by
specific LOTS it is to be considered from the materials on record as to whether the parties have agreed.
From the document marked annexure ‘A’ to the petition GA-23 of 2025 it will appear that the
said meeting was attended by Ranjana Barik Sunanda Barik, Chandranath Barik, Subrata Nath Barik and
Sarbajit Barik, and their Learned Advocates.
In the said meeting it was decided as follows:
‘This meeting is held in presence of the Learned Advocates, representing the three groups for
amicable settlement of the properties under the Suit.
It has been agreed by the group of Late SambhunathBarick, represented by RanjanaBarick and
SunandoBarick and the group of SarojendranathBarick, since deceased represented by
ChandranathBarick that ‘LOT A’ consisting of Darpana Cinema and its adjoining properties and some
properties on Vivekananda Road more specifically described in Schedule “A” countersigned by parties of
the three groups i.e. beneficiaries of Late SambhunathBarick and beneficiaries of Late
SarojendranathBarick and beneficiaries of Late SachindranathBarick, attached hereto, shall belong to the
heirs of Late SambhunathBarick, since deceased.
So far as ‘LOT B’ is concerned, which is consisting of Chaya Ciname and its surrounding properties
thereof on A.P.C Road, Kolkata, have been allotted in favour of beneficiaries of Late
SarojendranathBarick as per Schedule “B” annexed hereto and countersigned by the representatives of
all the three groups.
The properties mentioned in ‘LOT C’ have already been allotted by consent of all the parties in
the meeting held on 19/12/2020. The schedule of the properties mentioned in ‘LOT C’ is also annexed
hereto and countersigned by the representatives of the three groups and marked as Schedule “C”.
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Beside the properties mentioned above, there is a residential house being 194, Vivekananda
Road, Kolkata 6, shall be divided between the two groups i.e. between the heirs of Late
SambhunathBarick and Late SarojendranathBarick as shown in a sketch countersigned by the
representatives of three groups annexed hereto and marked as Schedule “D”.
The RED marked portion as shown in the sketch map as per Schedule D shall be the portion
belonging to the group of Late SambhunathBarick. The GREEN marked as shown in the said sketch shall
belong to the group of Late SarojendranathBarick. The ORANGE marked portion in the sketch shall be the
common portion for use of both the two groups i.e. heirs of Late SambhunathBarick and heirs of Late
SarojendranathBarick.
Parties will sit further to decide of the vacant portion on the back side of Chaya Cinema on
22/9/2022.’
Thus in the said meeting the decision to accept properties by Lot was taken by group of Late
Sambhunath Barik, group of Sarajendra Nath Barik, and Beneficiaries of Late Sachindra Nath Barik.
However in the said meeting it was decided that parties will take a decision of the vacant portion of the
back side of Chaya Cinema on 22/09/2022.
Previously on 23-2-2004 a meeting was held between. Mr. Sundar Nath Barick, Mr. Sarbajit
Barick, M.S. Ranjana Barick, Mr. Sunanda Barik, Mr. Chandra Nath Barick, Mr. Indra Nath Barick, and
their Learned Advocates.
In the said meeting it was decided as follows:
1. The following properties to be allotted to the group of Sachin Barick
(deceased).
(a). No. 8, C.R Avenue Calcutta.
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(b). No. P-20 Raja Basanta Roy Road Calcutta.
(c). 1/3 of premises nos. 156A, 156B, 169 and 170 Maniktala Main Road Calcutta.
(d). A small accommodation in the residential house at no. 194, Vivekananda Road Calcutta
for staying at the time of Durga Puja and other pujas during their ‘pala’ for the purpose of
performing the said pujas etc.
The rest of the properties to be divided into two ‘lots’ and one ‘lot’ will consist of
properties around Chaya Cinema and other ‘lot’ will consist of properties around Darpana
Cinema and property situated Vivekananda Road Calcutta. The residential house will be
divided into two equal proportions save and except the proportion to be allotted to the
group of Sachin Barick (deceased) and the Thakur Dalan, Thakur Ghor portion. The
properties standing in the name of the person to be allotted to the group of the same party.
The total properties to be again revalued by a panel valuer suggested by Mr. Chanchal Dutta
whose valuation will be accepted as fair valuation. The difference of valuation will be
adjusted and paid to the other group from the money to be received from sale of Maniktala
Main Road Property as welty money. Further, it is decided that group of Saroj Barick,
(deceased) will be allotted the properties around Chaya Cinema and are ready to pay the
cost of development made by the group of Sambhu Barick (deceased) at the premises no.
122/3A, APC Road Calcutta and group of Sambhu Barick (Deceased) will be allotted the
properties around Darpana Cinema and properties on Vivekananda Road.
In the said meeting property around Chaya Cinema was decided to be allotted to Group of
Sarajendra Nath Barick and property arround Darpana Cinema to Group of Sambhu Nath Barick.
In terms of order dated 19-08-98 passed by Hon’ble Division Bench Six properties were valued
th
Again properties of estate of Late Kalipada Barick were submitted on 13 August 1997 for valuation.
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Thus it will appear that valuation was held twice pursuant to orders passed by Hon’ble Division Bench of
this Court.
The meeting dated 12/10/2020 contained the following statement in the last paragraph.
‘It is further decided that the three branches will convene a meeting shortly to finalize the
pending terms of settlement’ and to put an end to litigations forever.
In case the ‘terms of settlement’ could not be finalized suitable directions shall be obtained from
the concerned court to settle the pending dispute.’
The meeting dated 12/10/2020 read with meeting dated 05/09/2022 will go to show that the
parties agreed to settle the disputes with regard to the suit property by accepting LOTA, LOT B and LOT
C. Only with regard to vacant portion on the back side of Chaya Cinema meeting was fixed on
22/9/2022. Although it was stated that discussion will be held with regard to back side of Chaya Cinema
but the back portion of Chaya Cinema was not kept outside the purview of the settlement. The said
meeting dated 05/09/2022 did not contain any clause that the decision is subject to further valuation.
Moreover defendant no-1(e) after the said meeting did not by any letter to the parties request for re-
valuation nor filed any petition in this regard before Court for valuation of any portion of property which
is not valued. Hence the agreement dated 05/09/2022 is not conditional and thus binding upon all the
parties. The defendant no-1(e) upon agreeing to the settlement and also selling Darjeeling property at
this stage cannot be permitted to withdraw from the agreement. Moreover when the properties were
earlier valued and was within the knowledge of defendant no. 1(e) such plea is not bonafide.
In the facts and circumstances this Court is of the view that in the interest of justice the
application GA-23/2025 should be allowed to resolve the disputes between the parties and put an end
to the litigation pending for more than sixty years. Thus the application GA-23/2025 stands allowed.
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Let there be an order in terms of prayer a) and b) of the Master Summons dated 28/02/2025.
Mr. Amitava Pal Senior Advocate Member Bar Library Club, and Ms. Manimalla De Advocate Ph:-
8240965507 are appointed Learned Commissioners to effect partition of the residential property 194,
Vivekananda Road as indicated in LOTS ‘A’ and ‘B’ as agreed by the parties, more particularly described
in the Annexure ‘A’ to the affidavit in support of Master Summons and thereafter, Final Terms of
settlement be filed in Court for Final Decree in the Suit.
The Learned Commissioners upon notice to parties and their Advocates shall carry out the
commission work Surveyor if required shall be appointed by the Commissioners for Survey. The
Commissioners shall be entitled to an initial remuneration of 1500 gm each to be shared equally by the
parties.
The cost of Commission shall also be shared by the parties. As this application GA-23/2025
stands disposed but the suit C.S. 1337 remain pending the report shall be submitted by the Learned
Commissioners before the Regular Bench having determination on or before 15/06/2026. The suit be
placed before the Regular Bench on 15/06/2026 subject to the convenience of the Learned Bench.
(Biswaroop Chowdhury, J.)