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2003 DIGILAW 223 (CAL)

HIRALAL SETT v. LALIT MOHAN SETT

2003-05-02

HRISHIKESH BANERJI, SAMARESH BANERJEE

body2003
Samaresh Banerjee, Hrishikesh Banerji ( 1 ) HRISHIKESH BANERJI, J. The present appeal is directed against the order of dismissal of the suit for partition of the plaintiffs' share in the suit property with consequential reliefs of final decree and other consequential reliefs. ( 2 ) ONE Motilal Sett was a licensed vendor of Ganja and Opium. He was also owning other businesses. By a Kobala dated November 17, 1905 he purchased the 'ka' schedule property measuring 13 Kotahs 2 Chhitaks at premises No. 4, Durgadas Lane, Khidirpur in the benami of his wife sashimukhi Dasi for a consideration of Rs. 12,000/- out of which a sum of Rs. 3,999/- was paid in cash and for the balance Sashimukhi executed a mortgage deed in favour of one Satyacharan Mukhejee in respect of the aforesaid property. Motilal was later adjudged an insolvent through court. He died in the year 1910 leaving his widow, Sashimukhi and four sons Surendra, Rajendra. Lalit and Nagendra. Surendra, Rajendra and nagendra died in 1967, 1945 and 1952 respectively. ( 3 ) SASHIMUKHI borrowed a sum of Rs. 10. 000/- from one Sitesh chandra Mukhejee by executing a mortgage bond dated 10. 3. 1920 and with that money the aforesaid four brothers started the business of Ganjia and Opium as also a timber business. They also started fishery and motor parts business in Calcutta. All the businesses were joint business of four brothers. ( 4 ) SONS of Satya Charan Mukhejee named above filed Title Suit No. 25 of 1924 in the 3rd Court of Subordinate Judge, Alipore and one Sailendra nath Palit was appointed a receiver in respect of the property in the said suit. Sailendra Nath brought two mortgage suits against Sashimukhi and her four sons and those suits were decreed. A certificate in respect of the 'ka' schedule property of the plaint was issued for the recovery of revenue whereupon the 'ka' schedule property was sold in auction and was auction purchased by one Haricharan Sadhukhan who took delivery of possession through Court in execution proceeding. The receiver. Sailendra Nath thereafter filed Title Suit No. 145 of 1932 in the 3rd Court of Subordinate Judge at Alipore against Haricharan Sadhukhan. Sashimukhi and her four sons which was decreed. Against the said judgment and decree Haricharan preferred an appeal in this Court which ended in a compromise. The receiver. Sailendra Nath thereafter filed Title Suit No. 145 of 1932 in the 3rd Court of Subordinate Judge at Alipore against Haricharan Sadhukhan. Sashimukhi and her four sons which was decreed. Against the said judgment and decree Haricharan preferred an appeal in this Court which ended in a compromise. The terms of the compromise decree not having been satisfied, Haricharan got the interest of the then receiver. Samaresh mukhejee auction-sold. Thereafter Paresh Chandra Das who was appointed as the receiver got the sale set aside and advertised for the sale of the disputed 'ka' schedule property and entered into a bainaptra in respect thereof with one Indumati Sen. Indumati gave up her business right in favour of plaintiff, since deceased. The 'ka' schedule property was at that time under the receiver, Paresh Chandra Das and to avoid their creditors the plaintiff (since deceased) and his brother by a Kobala dated 20. 9. 1940 purchased the 'ka' schedule property in the name of the defendant No. 1, since deceased, who had no means to purchase the property. ( 5 ) IT is the plaintiffs' case that the property was purchased from ejmali fund of the joint excise business at Coochbehar and that from such ejmali fund 'kha' schedule property was also acquired. It is further stated by the plaintiffs that Rajendra Nath Sett having wordly sense was the Karta of the joint business. On the death of the defendant No. 1, Suren, defendant no. 2 was substituted as the executor of the estate of the defendant No. l. The plaintiffs' claim is that the suit property was acquired by the ejmali fund of the joint family business of the aforesaid four brothers. They further alleged that the plaintiff No. l series viz. , substituted legal representatives of the plaintiff since deceased, have 1/4th share of the suit property; that the defendant No. 2 has 8 annas share in the suit property including the 1 /4th share of the defendant No. l, (since deceased)and that the defendant Nos. 3 and 4 who now stand transposed as plaintiff nos. 2 and 3 have the remaining 1/4th share of the suit property. ( 6 ) IT is alleged that the plaintiffs asked the defendant No. I (since deceased) for amicable partition of the suit property but she. refused to do so. 3 and 4 who now stand transposed as plaintiff nos. 2 and 3 have the remaining 1/4th share of the suit property. ( 6 ) IT is alleged that the plaintiffs asked the defendant No. I (since deceased) for amicable partition of the suit property but she. refused to do so. ( 7 ) THE suit is contested by the defendant No. 2 by filing a Written statement which was jointly filed with the defendant No. 1, Suren (since deceased ). Defendant No. 2 denied" the material averments in the plaint and alleges that there was no joint business of the four brothers, viz. , the four sons of Motilal and that the 'ka' schedule property had not been acquired by the ejmali fund of any alleged joint business. These defendants also , state that 'kha' schedule property was exclusively acquired by Rajendra and on his death it devolved on Sabitri, defendant No. 4 and on the coming into force of the Hindu Succession Act, 1956 Sabitri became the absolute owner of the property left by her husband Rajendra. On the death of defendant No. 1 Surendra, in the year 1967 the property devolved on defendant No, 2, Lalit as the only surviving brother of the aforesaid four brothers. ( 8 ) THE following issues were settled in the suit: 1. Has the suit been properly valued and stamped? 2. Is the suit maintainable ? 3. Is the suit barred by the principles of estoppel, waiver and acquiescence ? 4. Is the suit barred by Section 42 of the Specific Relief Act ? 5. Is the suit bad for non-joinder or necessary parties? 6. Are the plaintiffs entitled to a decree for partition of the suit property ? 7. Are the plaintiffs entitled to the accounts claimed ? 8. To what relief, jf any, are the plaintiffs entitled ? ( 9 ) ARE the alleged properties described in schedule 'kha' of the plaint self-acquired property of late Rajendra Nath Sett or are they joint properties acquired with joint nucleus to the name of Rajendra Nath Sett while was joint in mess and the properties with his brothers? ( 10 ) IS the defendant No. 2 entitled to added properties described in schedule 'kha' of the plaint by virtue, of inheritence in -/16/- annas right? ( 10 ) IS the defendant No. 2 entitled to added properties described in schedule 'kha' of the plaint by virtue, of inheritence in -/16/- annas right? ( 11 ) WAS the property of the 'ka' schedule of the plaint self-acquired property of Sabitri Bala or was Sabitri Bala a benamdar of her husband and her husband's brother in respect of the transaction under the kobala dated 20. 9. 1940, relating to the'ka' scheduled property? ( 12 ) HAVE the plaintiffs the alleged right, title and interest to the extent of the shares of the suit property as claimed ? 9. The learned Subordinate Judge was of the view that if the plaintiffs succeed in proving that the suit property was acquired with the money from the ejmali fund of the alleged business of the four sons of Motilal Sett, they shall succeed in the case. But if they fail to prove the same they are not entitled to the relief that they have prayed for. It has been found by the court below that Motilal having been adjudged an insolvent through Court the possibility of Motilal's having any property did not arise. 10. It has been found by the learned Subordinate Judge that 'ka' schedule property was purchased on 20th September, 1940 (Ext. A2 ). P. W. 2 stated that his father died in the year 1952 when he was aged 22/23 years. If that is true P. W, 2 was born in 1930. At the time of the transaction to respect of the 'ka" schedule property (Ext. A2 ). P,w. 2 was aged only about 10 years, In such circumstances it is not belivable that he had knowledge of the alleged joint business and therefore, he cannot be a competent witness to depose whether or not the fund out of which the property was purchased was ejmali fund. Nor could P. W, 2 have any knowledge at that age about the state of joint business and ejmali fund or for that matter about the alleged payment of the consideration money in respect of the above Kobala (Ext A2 ). 11. The trial Court found that there was no satisfactory evidence of joint business of the four sons of Motilal nor were any account books or register worth the name relating to the alleged joint business were forthcoming. 12. 11. The trial Court found that there was no satisfactory evidence of joint business of the four sons of Motilal nor were any account books or register worth the name relating to the alleged joint business were forthcoming. 12. Defendant No. 2, Lalit deposes that the "kha' schedule property belonged exclusively to Rajendra Nath Sett and on consideration of the material-on-record the trial Judge held that in the absence of any satisfactory and cogent evidence it could not be said that the suit property was acquired with the money from any ejmali fund or joint business. ( 13 ) THE trial Judge in the aforesaid circumstances held that the Ka" schedule property was the self-acquired property of Sabitri and that Sabitri was not a benamdar of her husband or her husband's brothers. The Trial court also found that the 'kha' schedule property was the self-acquire 5 property of Rajendra and that the said property was not joint property acquired with any joint nucleus in the name of Rajendra Nath Sti* while he was in joint mess and properly with his brothers. Rajendrs died ha the year 1945 and on his death her widow Sabitri inherited the "kha schedule property left by Rajendra. On the coming into force of itse provisions of the Hindu Succession Act. 1956 Sabitri Bala became the absolute owner of the 'kha' schedule property. ( 14 ) WE fully agree with the trial court that the appellant failed to prove that the property was purchased with fund acquired out of joint family business nucleus or even the existence of the joint family business prior to the property was auction sold and continuance thereof. Mere living together does not create any presumption of existence of a joint family business and joint family nucleus. Not only the appellant failed to prove the existence of such joint family business or continuance thereof, the analysis of evidence adduced on behalf of the defendant clearly indicate that there was no such joint family business on the same continued or the property was purchased from the joint family nucleus. ( 15 ) THE concept of joint family under the Mitakshara Law lies in unity of ownership and under- Dayabhaga law lies in unity of possession. So long there is unity in possession no coparcener can say particular share belongs to him. ( 15 ) THE concept of joint family under the Mitakshara Law lies in unity of ownership and under- Dayabhaga law lies in unity of possession. So long there is unity in possession no coparcener can say particular share belongs to him. Joint family does not come into existence on the death of Hindu amongst his heirs spontaneously by operation of law. It depends on desire to live jointly or separate. If live separately they merely own the inherited property as joint or tenants in common. ( 16 ) HERE the parties are governed by Dayabhaga law on the death of the father Motilal Sett in 1910 brothers were separated in mess in 1911 and the brothers were having separate property as well as separate business. Therefore the brothers had the desire to live separately, as such it cannot be said to be that there exists a joint family and/or joint property. ( 17 ) IT is well settled law that the Benami Transaction Prohibition Act, 1988 does not have any retrospective effect ( AIR 1996 SC 238 , Raja Gopal reddy vs. Chandra Sokh ). ( 18 ) THERE is no bar to the acquisition of property by a member of the hindu undivided family [articles 222, 231, 228, 228 (A) of Hindu Law ). ( 19 ) THE property of 'ka' Schedule held by defendant No. 1 as 16 annas owner and she realised rents from the tenants of the said property. The plaintiff was a tenant under the defendant No. l in the 'ka' schedule property. It will be evident from the letter written by tenants to the Collector, Corporation ofcalcutta including the plaintiff dated 16th march, 1949. ( 20 ) SURENDRA Nath Sett in his deposition in T. S. 192 of 1952 has categorically stated that "i live at 4, Durgadas Lane, Khidirpur which at present belongs to my brother's wife. The said house was sold in auction for mortgage debt and my brothers wife purchased the house from the receiver. ( 21 ) 'kha' Schedule property at Cooch Behar on the death of Rajen was owned by defendant No. 1. The same was mutated in the name of defendant No. 1. The plaintiff never raised any objections when the property of 'ka' and 'kha' schedule was mutated in the name of defendant No. 1. ( 21 ) 'kha' Schedule property at Cooch Behar on the death of Rajen was owned by defendant No. 1. The same was mutated in the name of defendant No. 1. The plaintiff never raised any objections when the property of 'ka' and 'kha' schedule was mutated in the name of defendant No. 1. This goes to show that both the properties were never acquired out of joint family nucleus. ( 22 ) THE case made out by the plaintiff in the plaint that the properties under 'ka' and 'kha' schedule are the joint property acquired from joint family nucleus funds, but the plaintiff had failed to prove the same. ( 23 ) IT is well settled principle as held in AIR 1980 SC page 727, the burden of showing that the transfer is a benami lies on the person who asserts that it is such a transfer. The plaintiff has also failed to prove his allegation of benami transaction. ( 24 ) THE plaintiff therefore failed to discharge such burden and therefore the defendant had no obligation also as to source of money, although in fact the same has been proved. ( 25 ) REFERRING to the Supreme Court decisions reported in AIR 1995 SC 297 [kondiram Bhiku Kiralat vs. Krishna Bhiku Kirdat (deceased by L. Rs.)] and AIR 1986 SC 79 (Bhagwant P. Sulakhe vs. Digambar Gopal Sulakhe; and Ors.) Mr. Bhuina contends that severance status of joint family has no effect on joint family property and that the said property continues to be joint until partition. Both these decisions are clearly distinguishable in the present case so far as the 'ka' schedule property is concerned as the same was the self-acquired property of Sabitri Bala. ( 26 ) SABITRI Bala died leaving behind the defendant No. 2, Lalit as the only surviving brother of her husband and in view of section 15 (1) (b) read with section 16 of the Hindu Succession Act, 1956 the 'kha' schedule property devolved upon Lalit and accordingly Lalit" is entitled to get the 'kha' schedule property inits entirety by inheritance. ( 27 ) THUS it is found that the 'ka' schedule property is the self-acquired property of Sabitri Bala and that she was not a benamdar of her husband and her husband's brothers in respect of the transaction under Kobala dated 20th September, 1940. 23. ( 27 ) THUS it is found that the 'ka' schedule property is the self-acquired property of Sabitri Bala and that she was not a benamdar of her husband and her husband's brothers in respect of the transaction under Kobala dated 20th September, 1940. 23. In view of the above the appeal is dismissed. 29. No order as to costs. Appeal dismissed.