Judgment

KAILASAM, J. (16-1-1979):- 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.

2. 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 premises with findings that the suit property and the premises were purchased in co-ownership 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. 45,000 with further accruals by way of receipt of further rent till full realisation of the claim. 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.

3. The defendant in his written statement denied the claim of the plaintiff and contended that the suit property was never purchased in co-ownership or that the plaintiffs were entitled to 3/4th share. He contended that plaintiffs 2 and 3 advanced Rs. 10,000 each as loan and that they had no claim to the property he having purchased the property in court auction as the absolute owner.

4. The trial court decreed the suit. The defendant preferred an appeal to the High Court which accepted the appeal and dismissed the suit.

5. The facts of the case may be shortly stated. The suit property in Darjeeling belonged to one Harbhajan Singh Wasel. He executed a mortgage in favour of the Calcutta National Bank Ltd. The bank instituted a suit against Harbhanan Singh Wasel for recovery of Rs. 1,82,403-11-3 and for enforcement of the mortgage. 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. 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 confirmation by the Court.

6. The defendant Prafulla Kumar Chattarjee was interested in buying the property in Darjeeling. He was negotiating with the Receiver for the purchase of Darjeeling properties. On 10-6-1959 he received a letter from D. N. Mukerjee 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. 32,000. 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, The property was auctioned on 15th December, 1959 and the defendant offered the highest bid for Rs. 30,000. On the same day the defendant deposited Rupees 7,500. While the sale was awaiting confirmation by the High Court a higher offer was made by one Baidyanath Garal and thereupon the defendant offered Rs. 40,000 which was accepted by the court and the sale in favour of the defendant was confirmed by the High Court for a sum of Rs. 40,000 on 19-1-1960. The defendant deposited a sum of Rs. 2,500 in addition to Rs. 7,500 that had already been deposited. The defendant was granted three months time for depositing the balance sum of Rupees 30,000.The defendant did not have funds to pay the balance Rs. 30,000 and had to raise the amount.

7. On 2-4-1960 an agreement was entered into between the three plaintiffs and the defendant. The suit by the plaintiffs is mainly based on this agreement P-45 dated 2-4-60. The agreement is signed by the three plaintiffs as well as by the defendant. According to the recital in the agreement the parties after learning from the notification in the newspaper of the sale of the suit property agreed be