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2008 DIGILAW 955 (CAL)

Tapan Banerjee v. Maya Rani Banerjee

2008-09-25

Biswanath Somadder

body2008
JUDGMENT 1. THE Judgment of the Court was as follows : Affidavit of Service filed in Court may.be kept on record. 2. NONE appears on behalf of the opposite parties even at the time of second call. This is an application under Article 227 of the Constitution of India primarily directed against an order dated 31st January, 2006 passed by the learned 8th Civil Judge (Senior Division) at Alipore in Title Suit No. 12 of 2005. 3. BEFORE the learned Court below a compromise petition filed by the parties jointly on 15th December, 2005 was taken up for consideration on 31st January, 2006. The learned Court below rejected the prayer for compromise with the following observation : "On perusal of the terms of solenama/compromise petition I find that it rs against the statute and public policy. It offends the provisions of Benami Transaction Prohibition Act, 1988 and Section 23 of the Indian Contract Act, 1872, It appears that the terms of compromise, if permitted, it would defeat that provisions of law." 4. AGAINST the aforesaid order, the petitioner herein took out an application on 28th February, 2006 for setting aside and/or modification of the said order dated 31st January, 2006. By an order dated 7th August 2006, the learned Court below rejected the said application by inter alia, observing that since an order was passed by the Court considering all the facts and circumstances of the case, it could not again re-consider its own order, unless there was a mistake palpable on the face of record. 5. THE plaintiff/petitioner subsequently approached this Court by way of filing the instant application under Article 227 of the Constitution of India. 6. AFTER hearing the learned Advocate appearing on behalf of the petitioner and upon perusing the instant application and orders impugned, I am of the view that a short point comes up for consideration in the instant case, and that is, whether the proviso to Section 3 of the Benami Transactions (Prohibition) Act, 1988 was applicable in the facts and circumstances of the instant case and was, therefore, required to be looked into by the learned Court below, before passing the orders impugned. Section 3 of the Benami Transactions (Prohibition) Act, 1988 begins with sub-section (1) which states that no person shall enter into any benami transaction. 7. Section 3 of the Benami Transactions (Prohibition) Act, 1988 begins with sub-section (1) which states that no person shall enter into any benami transaction. 7. SUB-section (2)(a) of Section 3 of the Benami Transaction (Prohibition) Act, 1988 is reproduced hereinbelow : "3. Prohibition of benami transactions.-(1).................................. "(2) Nothing in sub-section (1) shall" apply to - (a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter;................................." 8. IN the facts of the instant case it appears that the compromise petition before the learned Court below was filed by the son, widow and daughter of a person named, Rash Behari Banerjee. It also appears that Rash Behari Banerjee purchased the land of the suit property on 28th June, 1946 for a valuable consideration in the name of his wife, being the opposite party No. 1 herein. 9. IT also appears that after the demise of Rash Behari Banerjee, the right, title and interest in respect of the said property was gifted away by the widow of Rash Behari Banerjee to her daughter by executing a registered deed of gift in her favour. The daughter is the opposite party No. 2 herein. 10. THE present Title Suit was filed in the year 1996 by the petitioner herein and a compromise petition was filed in connection with the said Title Suit subsequently, wherefrom the impugned orders emanate. Taking the above facts into consideration, I am of the view that the learned Court below, before rejecting the compromise petition, ought to have considered the provision of law as discussed above and decided as to whether in the facts of the instant case the proviso to Section 3 of the Benami Transactions (Prohibition) Act, 1988 could be said to applicable or not. 11. IN the circumstances, I am of the view that the matter is required to be remanded to the learned Court below for re-consideration afresh, in the light of the above observation. 12. THE impugned orders are, therefore, liable to be set aside and the same are hereby set aside. 11. IN the circumstances, I am of the view that the matter is required to be remanded to the learned Court below for re-consideration afresh, in the light of the above observation. 12. THE impugned orders are, therefore, liable to be set aside and the same are hereby set aside. The compromise petition shall be heard by the learned Court below, in terms of this order, as expeditiously as possible, preferably within a period of three months, but not later than four months from the date of communication of this order, without granting unnecessary adjournments to the parties. 13. THE time-frame indicated above shall be peremptory in nature and it shall not be open to the learned Court below to extend the same, for any reason whatsoever, even on consent of the parties.