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2009 DIGILAW 776 (CAL)

Benoy Bhusan Bhattacharjee v. Geeta Bhowmick

2009-09-23

BHASKAR BHATTACHARYA, PRASENJIT MANDAL

body2009
JUDGMENT Bhaskar Bhattacharya, J. 1. This first appeal is at the instance of a plaintiff in a suit for partition and is directed against the judgment and decree dated 21st April, 2001 passed by the learned Civil Judge, Senior Division, Third Court, Alipore, District-South 24-Parganas, in Title Suit No. 218 of 1984 thereby dismissing the said suit. 2. Being dissatisfied, the plaintiff has come up with the present first appeal. 3. The appellant before us filed in the Third Court of Subordinate Judge, Alipore, a suit being Title Suit No. 218 of 1984 for partition against his mother and the sister and the case made out by the appellant, as it stands after the amendment of the plaint, may be summed up thus: (a) Premise No. P/68, Lake Road which was described in Schedule 'A' and moveable properties which were described in Schedules 'B'. 'C' and 'D' were the subject-matters of the suit and those belonged to Bibhuti Bhusan Bhattacharjee, since deceased the father of the appellant and the defendant No.2 and the husband of the defendant No. 1. Therefore, on the death of the said Bibhuti Bhusan, the said property devolved upon the plaintiff and the defendants in equal undivided one-third share. (b) In the year 1938-39, Bibhuti Bhusan purchased the said house being P/68, Lake Road in the benam of his wife, the defendant No.1. in order to avoid payment of income tax although he paid the entire consideration money for the purchase. After two years of the said purchase, the said Bibhuti Bhusan, from tune to time, constructed a three-storied building which was completed in the year 1942. At the relevant point of time the said Bibhuti Bhusan was a Civil Engineer and used to serve at Heakly & Gresham Company of 31, Chittaranjan Avenue and used to earn handsome amount of money. The defendant No.1 was a housewife and she had no source of income and her parents' family used to live from hand to mouth. During the lifetime of Bibhuti Bhusan, he brought the defendant No.2, his married daughter. and her husband in the said house and the defendant No.2 used to live in the separate mess. The defendant No.1 was a housewife and she had no source of income and her parents' family used to live from hand to mouth. During the lifetime of Bibhuti Bhusan, he brought the defendant No.2, his married daughter. and her husband in the said house and the defendant No.2 used to live in the separate mess. (c) Subsequently, the defendant No.2 in collusion with her mother, the defendant No.1, started misbehaving with the plaintiff and his wife which was noticed by Bibhuti Bhusan who realised that it was not possible for the plaintiff to reside at the suit house at P/68, Lake Road. (d) Accordingly, in the last part of 1979, the plaintiff with his family was forced to leave the dwelling house and started staying in his brother-in-law's house at B/22, Ata Bagan Road, Garia, Kolkata, with great inconvenience. (e) During the lifetime of Bibhuti Bhusan, he used to keep all his valuables including all shares and securities and the documents in the dwelling house which the defendant No.1 in collusion with the defendant No.2 obtained in their custody after the death of Bibhuti Bhusan. (f) Bibhuti Bhusan, till his death, used to induct tenants and realized rent in respect of the property at P/68, Lake Road and granted receipts by writing out the body of the receipts and getting the receipts signed by the defendant No.1 to maintain the benami character. (g) During the pendency of the suit, the defendant No. 1 died on 5th November, 1992 leaving behind the plaintiff and the defendant No.2 as her legal heirs and successors and after the death of the defendant No. 1, the entire suit property is owned only by the plaintiff and the defendant No.2 each having half share. Hence the suit. 4. The suit was contested by both the defendants by filing separate written statements thereby denying the material allegations made in the plaint and the defence of the defendant No.1 may be summed up thus: (1) During the last days of Bibhuti Bhusan, the plaintiff in spite of the fact that he was the only son, neither cared for the deceased nor did he bother to perform the funeral rites and 'sradh' ceremony of the deceased. Knowing fully well that the deceased had executed a Will appointing his wife, the defendant No. 1, as the sole executrix, the plaintiff had filed the suit with sole intention of harassing the defendant No.1 and put her under mental depression and torture. There is a specific registered Will of the deceased appointing the defendant No.1 as the sole executrix and hence the question of undivided one-third share of the plaintiff did not arise at all. (2) As regards Schedule 'A' property, the same never belonged to Bibhuti Bhusan and thus, the question of payment of rent by tenant to him did not arise. The defendant No.1 craved leave to produce the deed of the house at the time of hearing. (3) From the day the plaintiff left the house, he had no relationship with his parents and hence, the question of request for partition did not arise at all. Once or twice the plaintiff invaded the house with some hooligans to usurp his mother's wealth but the plaintiff failed due to timely interference of the neighbours. The suit was, therefore, liable to be dismissed. 5. The defendant No.2, the sister of the appellant, contested the suit by filing separate written statement and her defence may be epitomised thus: (1) The defendant No.1 was the owner of the Schedule "A" and executed a deed of settlement on 13th October, 1979 in favour of the defendant No.2 and during the lifetime of the settler, she and her husband, since deceased, remained as trustees to maintain the property which was acquired out of the income of the said property. According to the terms of the settlement, on the death of both the trustees, beneficiary of the settlement, namely, the defendant No.2 would become the owner of the Premises No.P/68, Lake Road, Kolkata. (2) The properties described in Schedules 'B', 'C' and 'D' mentioned in the plaint, have been wrongly incorporated in the plaint and the defendant No. 2 had no knowledge about those articles during the lifetime of the defendant No. 1. (3) The deed of settlement was executed by the defendant No.1 and her husband who were the trustees under the said deed and as such, the question of giving any account did not arise. (3) The deed of settlement was executed by the defendant No.1 and her husband who were the trustees under the said deed and as such, the question of giving any account did not arise. (4) It was denied that the Premises No. P/68, Lake Road was purchased in the benam of Smt. Sovarani Bhattacharjee in order to avoid payment of income tax or that the entire consideration money was paid by Bibhuti Bhusan Bhattacharjee. It was also denied that the defendant No.1 had no income or that her parents' family used to live from hand to mouth. The suit was, therefore, liable to be dismissed. 6. At the time of hearing of the suit, the plaintiff himself appeared as PW-1, one Ujjal Guha appeared as PW-2 and Smt. Sukla Bhattacharjee, was examined as PW-3. Apart from those witnesses two other witnesses were also examined on behalf of the plaintiff. The defendant No. 2 did not enter appearance as witness but her daughter' was examined as DW-1 and one Amarendra Das Gupta, a witness to the deed of trust, was examined as DW-2. 7. As indicated earlier, the learned Trial Judge by the judgment and decree impugned herein was pleased to dismiss the suit. 8. Being dissatisfied, the plaintiff has come up with the present first appeal. 9. Mr. Chatterjee, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the learned Trial Judge erred in law in relying upon the alleged trust deed executed by the defendant No.1 in favour of the defendant No.2 by totally overlooking the admission of the defendant No.1 in her written statement wherein she admitted existence of a Will executed by her husband appointing her as the executrix. Mr. Chatterjee contends that the existence of the said Will pleaded in the written statement should be construed to be an admission of the defendant No.1 that her husband was the real owner of the Schedule 'A' property and thus, by virtue of the trust deed alleged to have been executed by the defendant No.1, no title could pass in favour of the defendant No.2. Mr. Chatterjee further contends that the defendant No.2 could not produce any evidence showing that the defendant No.1 had sufficient means to purchase the Schedule 'A' land and thereafter, to construct a house by her own money. Mr. Mr. Chatterjee further contends that the defendant No.2 could not produce any evidence showing that the defendant No.1 had sufficient means to purchase the Schedule 'A' land and thereafter, to construct a house by her own money. Mr. Chatterjee further contends that even the defendant No.2 herself did not come forward to depose in the proceedings to deny the plea of benami raised by his client and thus, the learned Trial Judge should have held that Bibhuti Bhusan was the real owner of the property and on his death, the plaintiff acquired title to the extent of one-third share which after the death of the defendant No.1 has been enhanced to half share. He. Therefore, prays for setting aside the decree passed by the learned Trial Judge and for declaring his client's half share in the property. 10. The learned Advocate appearing on behalf of the respondent has on the other hand supported the judgment and decree passed by the learned Trial Judge. 11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that in the original plaint, it was simply stated, the suit properties belonged to Bibhuti Bhusan but no plea was taken that the Schedule 'A' property was a benami property of Bibhuti Bhusan. In such circumstances, the defendant No. 1 simply pointed out in paragraph 5 of her written statement that the Schedule 'A' property at no point of time belonged to Bibhuti Bhusan and as such, no question of payment of rent by the tenant to him arose. In the earlier paragraph, she stated that her husband had executed a Will appointing her as sole executrix and as such, no question of having one-third share arose. If we read paragraphs 4 and 5 together, it will appear that her specific defence is that in respect of Schedule A' property, Bibhuti Bhusan was not at all the owner at any point of time and in respect of Schedule 'B' to Schedule 'D'. her husband bequeathed those properties by appointing her as executrix. Long after the death of the defendant No.1 on 5th November, 1992, the plaint was amended by filing an application under Order 6 Rule 17 of the Code on February 17, 1999 thereby incorporating paragraph 2(a) and 5(a) and the plaintiff for the first time, introduced the plea of benami in respect of Schedule 'A' property. Long after the death of the defendant No.1 on 5th November, 1992, the plaint was amended by filing an application under Order 6 Rule 17 of the Code on February 17, 1999 thereby incorporating paragraph 2(a) and 5(a) and the plaintiff for the first time, introduced the plea of benami in respect of Schedule 'A' property. 12. We, thus, find no substance in the contention of Mr. Chatterjee that the defendant No.1 by admitting the existence of the Will of her husband has accepted the plea of benami. As during her lifetime, the plaintiff did not raise the plea of benami in respect of Schedule 'A'. no question of admission of the defendant No.1 arose. She specifically denied the right of her husband in that property but in spite of that the plaintiff did not take the plea of benami till her death. 13. The next question that arises for determination in this appeal is whether the plaintiff has been able to prove benami in respect of Schedule 'A'. 14. It is now a settled position of law that the person who alleges benami must prove such fact and the person against whom such plea is raised is under no obligation to disprove the plea of benami. 15. In this case, the defendant No.2 has produced a trust deed showing that the defendant No.1 during the lifetime of her husband executed the same by making herself as a first trustee and her husband, the second trustee on her death with the stipulation that on the death of both the trustees, the Schedule 'A' property will vest on the defendant No.2 absolutely. It further appears that the husband of the defendant No.1 signed the said trust deed by signifying his acceptance to act as the second trustee in the event of the death of his wife during his lifetime. Therefore, by accepting the post of second trustee, Bibhuti Bhusan accepted the contents of the same which in no uncertain terms assert the absolute title of the defendant No. 1 in the Schedule 'A'. Therefore, by accepting the post of second trustee, Bibhuti Bhusan accepted the contents of the same which in no uncertain terms assert the absolute title of the defendant No. 1 in the Schedule 'A'. Once Bibhuti Babu accepts his wife as the real owner, the plaintiff having brought this suit as the heir of Bibhuti Babu is precluded from raising the plea of benami unless the plaintiff either proves that the trust deed did not bear the signature of his father or that such signature was procured by practising force, fraud, undue influence etc. No such plea was taken by the plaintiff and no step was taken to prove that the signature of Bibhuti Bhusan or those of the defendant No.1 appearing in the trust deed were forged. It appears that DW-2 has proved the said deed which was executed in his presence. We do not find any reason to discard the evidence of DW-2. 16. Apart from the admission of Bibhuti Babu in the trust deed, it appears that in the Corporation record the defendant No.1 was all along shown as owner. No rent receipt could be produced showing that the husband of the defendant No.1 at any point realised rent from the tenants. The evidence of a former tenant supporting the plaintiff is not worthy of credence in the absence of any rent receipt. The fact that he was unable to produce any receipt itself indicates that those receipts if produced would show realisation of rent by the defendant No. 1. 17. We are also not impressed by the submission of Mr. Chatterjee that non-appearance of defendant No.2 is fatal in this case once we find that the genuineness of the trust deed executed by both the parents of the plaintiff was beyond any doubt. In this case, the oral evidence given by various persons on behalf of the plaintiff indicating that the defendant No.1 had no income of her own are insignificant in view of the admission in writing by Bibhuti Babu himself by acceptance of the office of the second trustee. The plaintiff claiming through Bibhuti Babu is estopped from deviating from the stance taken by his father. 18. The plaintiff claiming through Bibhuti Babu is estopped from deviating from the stance taken by his father. 18. Regarding the properties mentioned in Schedule 'B' to Schedule 'D', we are at one with the learned Trial Judge that in the absence of any material showing existence of those properties, the learned Trial Judge rightly dismissed the claim in respect of those properties against the defendant No.2. The plaintiff even gave no evidence indicating the fate of the probate application filed by the defendant No.1 in respect of those properties as stated in paragraph 3 of her written statement and at same time, the plaintiff even did not venture to assert that no such probate application was filed by the defendant No.1 as alleged in the written statement. The plaintiff has, thus, failed to prove existence of those properties indicated in Schedule "B" to Schedule "D' and the learned Trial Judge rightly dismissed the suit in its entirety. 19. This appeal is, accordingly, devoid of any substance and is dismissed. The judgment and decree passed by the learned Trial Judge are affirmed. 20. In the facts and circumstances, there will be, however, no order as to costs. Prasenjit Mandal, J.: I agree. Appeal dismissed.