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2010 DIGILAW 921 (GAU)

Surendra Chandra Paul v. Sunil Chandra Paul

2010-12-09

BROJENDRA PRASAD KATAKEY

body2010
JUDGMENT B.P. Katakey, J. 1. This appeal by the Plaintiff is directed against the judgment and decree dated 5th January, 2000 passed by the learned District Judge, Bongaigaon in Title Suit No. 17/1994, whereby and whereunder the suit of the Plaintiff was dismissed. 2. The Appellant as Plaintiff instituted the aforesaid suit being Title Suit No. 17/1994 in the Court of the learned District Judge, Bongaigaon claiming right, title and interest in respect of 3 bighas, 2 kathas, 18 lechas of land and also for recovery of khas possession in respect of the land measuring 2 bighas, 1 katha, 18 lechas, which is part of the aforesaid 3 bighas, 2 kathas, 18 lechas of land, contending, inter alia, that on 9th January, 1974 he along with the pro forma Defendant No. 4 purchased the plot of land measuring 4 bighas, 1 katha, 14 lechas from one Anowar Hussain by registered deed of sale (Exhibit-2) and on 27th February, 1976, he along with the pro forma Defendant Nos. 4 and 5 purchased the plot measuring 4 bighas, 1 katha, 3 lechas from one Kutub Uddin Sheikh by a registered deed of sale (Exhibit-1). According to the Plaintiff, out of the land measuring 4 bighas, 1 katha, 14 lechas, which has been purchased on 9th January, 1974 (Exhibit-2), he is entitled to half and in respect of the land measuring 4 bighas, 1 katha, 3 lechas, which was purchased, vide Exhibit-1, he is entitled to 1/3rd and thereby entitled to right, title and interest over the total land of 3 bighas, 2 kathas, 18 lechas. It is also the pleaded case of the Plaintiff that on 8th December, 1993, taking advantage of his absence, the Defendant Nos. 1 to 3, who are his brothers trespassed into the land measuring 2 bighas, 1 kathas, 18 lechas, described in Schedule-B, which is part of 3 bighas, 2 kathas, 18 lechas of land described in Schedule A and though they were asked to vacate the land, they having not done so, the suit has to be filed. 3. The Defendant Nos. 3. The Defendant Nos. 1 to 8 contested the suit by filing written statement contending, inter alia, that the Plaintiff and the Defendants being brothers are the members of the Hindu joint family and the Karta of the family, who was the eldest brother, namely Rudreswar Paul, purchased the aforesaid land vide Exhibit-1 and Exhibit-2 sale deeds in the name of the Plaintiff and the pro forma Defendant Nos. 4 and 5 out of the family fund, when the Plaintiff and the pro forma Defendant Nos. 4 and 5 were minor. The Defendants, therefore, pleaded in the written statement that they are also entitled to the share in the said land. 4. On the basis of the pleadings of the parties, the following issues were framed for consideration and decision by the learned Court below: 1. Whether the Plaintiff has cause of action for the suit? 2. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? 3. Whether the Plaintiff's story of possession in and dispossession from the suit land is true? 4. Whether the suit is barred by limitation under Article 65 of the Limitation Act? 5. Whether the Plaintiff has subsisting right in and title to suit land? 6. To what relief, if any the parties are entitled to? 5. The Plaintiff/Appellant in support of his claim examined 3(three) witnesses and proved a number of documents. The Defendant Nos. 1, 2 and 3 have also examined 4(four) witnesses. The parties have cross-examined their respective witnesses. 6. The learned Court below, upon appreciation of the evidences on record, by the impugned judgment and decree, dated 5th January, 2000 dismissed the suit of the Plaintiff by holding that the Plaintiff as well as the pro forma Defendant Nos. 4 and 5 on the dates of the purchase, i.e., on 9th January, 1974 and 27th February, 1976, were minor and the property was purchased by the Karta of the family, namely Rudreswar Paul, from the joint family fund and in the name of the Plaintiff and the pro forma Defendant Nos. 4 and 5, who had no independent income. Hence, the present appeal. 7. I have heard Mr. A. Dasgupta, learned Counsel for the Appellant. None appears for the Respondents despite service of notice. 8. It has been contended by Mr. 4 and 5, who had no independent income. Hence, the present appeal. 7. I have heard Mr. A. Dasgupta, learned Counsel for the Appellant. None appears for the Respondents despite service of notice. 8. It has been contended by Mr. Dasgupta, learned Counsel for the Appellant that the learned Court below ought not to have dismissed the suit of the Plaintiff by holding that the suit property was purchased by the eldest brother, namely, Rudreswar Paul, in the name of the Plaintiff and the pro forma Defendant Nos. 4 and 5, in view of the provisions of the Benami Transactions (Prohibition) Act, 1988 ('1988 Act'). Referring to Sub-section (2) of Section 4 of the said Act, it has been submitted by Mr. Dasgupta that since taking of defence in any suit in respect of the property held benami prohibited, the defence set up by the Defendant Nos. 1 to 3 that the property was purchased by the karta in the name of the Plaintiff and the pro forma Defendant Nos. 4 and 5 out of the family fund ought not to have accepted by the learned Court below, the same being contrary to the provisions of the 1988 Act. Referring to the decision of the Apex Court in Mithilesh Kumari and Anr. v. Prem Behari Khare (1989) 2 SCC 95 , it has also been submitted by Mr. Dasgupta that though the sale transactions were of the years 1974 and 1976, the provisions of the 1988 Act shall apply, the same being retrospective in nature. The learned Counsel, therefore, submits that the suit of the Plaintiff be decreed by setting aside the judgment and decree passed by the learned Court below. 9. I have considered the submission of the learned Counsel for the Appellant and also perused the pleadings of the parties in the plaint as well as in the written statement. I have also perused the evidences adduced by the parties. 10. The Plaintiff instituted the suit for declaration of right, title and interest in respect of the Schedule A land and for recovery of khas possession in respect of Schedule-B land, claiming that he along with the pro forma Defendant No. 4 purchased the land, vide Exhibit-2 sale deed dated 9th January, 1974 and along with the pro forma Defendant Nos. The Plaintiff instituted the suit for declaration of right, title and interest in respect of the Schedule A land and for recovery of khas possession in respect of Schedule-B land, claiming that he along with the pro forma Defendant No. 4 purchased the land, vide Exhibit-2 sale deed dated 9th January, 1974 and along with the pro forma Defendant Nos. 4 and 5, vide Exhibit-1 sale deed dated 27th February, 1976, and, therefore, became, the owner in respect of half of the land in Exhibit-2 sale deed and 1/3rd of the land in Exhibit-1 sale deed. It is not the pleaded case of the Plaintiff that though the land was purchased by his elder brother, since it was purchased in his name, he is protected under the provisions of the 1988 Act. The Defendant Nos. 1 to 3, on the other hand, has pleaded in the written statement that the land was purchased by the Karta of the family, namely, Rudreswar Paul, for the benefit of the joint, undivided Hindu family and out of the joint family fund. 11. The Plaintiff though examined 3(three) witnesses, they could not prove that the land was purchased, vide Exhibits-1 and 2 sale deeds out of their own fund. On the other hand, the Defendant Nos. 1 to 3 by adducing evidence could prove that the Plaintiff and the pro forma Defendant Nos. 4 and 5 were minor at the relevant point of time and they had no independent source of income. The Defendant Nos. 1 to 3 could also prove by adducing evidence that the suit land was purchased by the karta of the joint undivided Hindu family, i.e., Rudreswar Paul, the eldest brother, for the benefit of the members of the family and from out of the joint family fund. 12. The Apex Court in Mithilesh Kumari (supra) has held that the provisions of the 1988 Act shall apply to any pending suit or the appeal arising out of such suit, irrespective of the date of the transaction, that is to say, even if in respect of the transaction, which were completed prior to the 1988 enactment. That being the position, the provisions of 1988 Act shall apply in the present suit also the same having been instituted in the year 1994. 13. That being the position, the provisions of 1988 Act shall apply in the present suit also the same having been instituted in the year 1994. 13. Sub-section (2) of Section 4 of the 1988 Act provides that no defence, based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. Therefore, no defence can be set up by any Defendants in a suit filed by any other person claiming that such property was purchased by such Defendant benami. 14. There is, however, an exception in Sub-section (3) of Section 4 of 1988 Act, which reads as under: (3) Nothing in this section shall apply, - (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or (b) Where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity. 15. It is evident from Sub-section (3) of Section 4 of the Act, as reproduced above, that the provisions of Section 4 do not apply (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity. 16. As discussed above, it is the plea of the Defendant Nos. 1 to 3 in the written statement, which they could prove by adducing cogent and reliable evidence that the property was purchased by the karta of a Hindu undivided family, namely Rudreswar Paul, in the name of the Plaintiff and the pro forma Defendant Nos. 16. As discussed above, it is the plea of the Defendant Nos. 1 to 3 in the written statement, which they could prove by adducing cogent and reliable evidence that the property was purchased by the karta of a Hindu undivided family, namely Rudreswar Paul, in the name of the Plaintiff and the pro forma Defendant Nos. 4 and 5 out of the joint family fund and for the benefit of all the members of the family. That being the position, the prohibition imposed by Sub-section (2) of Section 4 from setting up of defence on any right in respect of any property held benami, is not applicable in the instant case. 17. In view of the aforesaid discussion, I do not find any merit in the present appeal to interfere with the impugned judgment and decree passed by the learned trial Court and hence, the appeal is dismissed. The impugned judgment and decree passed by the learned trial Court is upheld. However, keeping in view the facts and circumstances of this case, the parties are directed to bear their own cost throughout. 18. Registry is directed to send down the records forthwith. Appeal dismissed.