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2026 Supreme(Cal) 145
IN THE HIGH COURT AT CALCUTTA
BISWAROOP CHOWDHURY, J.
Mr. Shymal Kumar Mukherjee – Petitioner
Versus
Chandan Barick And Anr. – Respondents
C.S NO. 1337 OF 1965, G.A-23 OF 2025
Decided On : 05-05-2026
For the Petitioner: Mr. Shymal Kumar Mukherjee, Adv.
For the Respondent: 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.
In an administration suit, a court may exercise inherent powers under Section 151 of the Code of Civil Procedure to direct the partition of estates to resolve prolonged litigation, especially when parties have unequivocally accepted and acted upon a mutually agreed distribution scheme.
Headnote:(A) Code of Civil Procedure, 1908 - Order 20 Rule 13, Section 151 - Administration Suit - Scope and Ambit - Whether a court may direct partition in an administration suit - Courts in an administration suit, in exercise of inherent power to do justice and shorten litigation, may resolve disputes between co-sharers regarding assets, including partition by metes and bounds, especially where the suit has remained pending for a significant duration and there is evidence of mutual agreement between the parties. (Paras 16, 17, 23)
(B) Estoppel and Acquiescence - Parties having derived benefits and acted upon a partition scheme by disposing of specific assets allocated to them under such agreement, cannot subsequently resile or challenge the validity of the overall arrangement, as such conduct constitutes unequivocal acceptance. (Paras 14, 15, 23)
Facts of the case:
A litigation for administration of an estate and rendition of accounts remained pending for several decades. During the pendency of the proceedings, the descendants of the original parties convened various meetings reaching a consensus to distribute the estate into distinct lots for the benefit of respective family branches. Several parties proceeded to sell and transfer portions of the estate assigned to them under their designated lots. A subsequent application was filed seeking a preliminary decree and the appointment of commissioners to partition a residential property in accordance with the agreed allocation. Objections were raised regarding the maintainability of the partition prayer within an administration suit and the validity of the valuation process.
Findings of Court:
The court held that the administration suit, given its excessive pendency and the subsequent developments involving various transfers, required a holistic resolution. The court found the partition scheme agreed upon by the parties to be valid and binding, as the parties had demonstrated clear conduct by dealing with properties allotted to them. Denying the prayer would prolong the litigation and cause irreparable hardship.
Issues: The primary questions addressed were whether a court possesses the power to direct a partition of assets during an administration suit and whether an agreed partition scheme is enforceable notwithstanding the absence of a final decree when parties have already acted upon it.
Ratio Decidendi: In light of the inherent power under Section 151 of the Code of Civil Procedure, a court in an administration suit is not strictly limited to mere accounting and may direct the partition of assets to provide a final resolution if it serves the interests of justice. Where parties have demonstrated through overt acts, such as the sale of assets, that they have accepted a settlement agreement, the terms of such agreement are enforceable and binding upon them, precluding any later unilateral challenge.
Result: Application allowed. The court appointed commissioners to effect the partition of the residential property in accordance with the agreed lots.
| Table of Content |
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| 1. establishment of factual background regarding estate partition and historical litigation. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16) |
| 2. conflicting claims regarding the validity and finality of the agreed lot system for property distribution. (Para 17) |
JUDGMENT :
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:
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.
Ic) Declaration that the said indenture of conveyance dated 16th November 1965 is void illegal and of no effect.
Id) The said Indenture of conveyance dated 16th November 1965 be ordered to be delivered up and cancelled.
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.
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 Mr. Shymal Kumar Mukherjee Advocate by an order dated 24th May 2024 was appoint
