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2013 DIGILAW 797 (CAL)

Dipak Dhar v. Haran Chandra Dhar

2013-10-09

ASIM KUMAR RAY

body2013
Judgment : Asim Kumar Ray, J. This appeal is directed against the judgment and decree dated April 25,1996 passed in Title Appeal No. 17 of 1995 by learned Additional District Judge, 14th Court, Alipore, District-South 24-Parganas thereby affirming the judgment and decree dated September 22, 1994 and November 7, 1994 respectively passed in Title Suit No. 203 of 1983 by learned Assistant District Judge, Second Court, Alipore, District –South 24 – Parganas. The factual background of the plaintiff/respondent’s case in a nutshell is that the suit property was purchased by the plaintiff/respondent Haran Chandra Dhar and his elder brother Srimanta Kumar Dhar, since deceased jointly in their owner name out of their own money in equal share. The property was developed and rooms were constructed thereon. They were possessing the same jointly till the death of Srimanta Kumar har. Plaintiff/respondent is in occupation of two rooms with kachha vit. Brick built wall and tile shed in separate mess with the defendants. There are two monthly tenants and the rent is realised by the defendant No.1/appellant without showing any account to the plaintiff though repeated demands were made. A dispute arise between the parties as to the peaceful and convenient use and enjoyment of the suit property. The plaintiff asked the defendants to agree with an amicable partition which was refused. So the suit was filed. The case of the defendants/appellants is that the properties was purchased by Srimanta Kumar Dhar, since deceased out of his self acquired fund. The plaintiff/respondent has no right, title and interest over the suit property. He has never contributed any fund towards purchase of the said property. He had no income at the time of purchase of the property in issue so the question of contribution by the plaintiff/respondent does not arise. The suit property were never a joint property at any point of time. The plaintiff/respondent used to stay in Pakistan (now Bangladesh) and his elder brother, since deceased used to stay in India since 1938. He was an employee of Bata Shoe Company Private Ltd. now Bata Shoe Company (India ) Ltd. till the date of his superannuation in 1979. He was in absolute possession of the suit property since the date of his purchase. On his death the defendants/appellants are in absolute possession of the same. He was an employee of Bata Shoe Company Private Ltd. now Bata Shoe Company (India ) Ltd. till the date of his superannuation in 1979. He was in absolute possession of the suit property since the date of his purchase. On his death the defendants/appellants are in absolute possession of the same. The defendant No. 1/appellant has been realising the rents after the death of her husband, Srimanta Kumar Dhar on behalf of herself and other appellants/defendants. At the time of purchase of the suit property by Srimanta Kumar Dhar, since deceased it was a vacant land. Thereafter several one storied buildings were constructed on the said plot at his own cost and expenses. After construction of the said building tenants were inducted therein. After the death of Srimanta Kumar Dhar/appellant No. 1. /defendant had made substantial development of the said building at her own cost. The respondent /plaintiff was and will is not in possession of the said property. He never enjoyed same except a portion of the land measuring 5 cottahs which was settled by Srimanta Kumar Dhar under his last will and testament. The appellant/defendant are advised to take probate proceedings before appropriate forum to get the letter of administration to the said testamentary will. Appellants/defendants Nos. 1 to 8 being the legal heirs and/or beneficiary of the will of Srimanta Kumar Dhar are the absolute owner of the suit property. The plaintiff/respondent is not entitled to undivided half share in the suit property. He at all material time was and still is a benamdar of Srimanta Kumar Dhar. He is not legally entitled to claim any share of the suit property. On the aforesaid pleadings of the parties issues were framed by the learned Trial Court. Evidence of the parties were recorded. Plaintiff/respondent Haran Chandra Dhar was examined as his sole witness. On the contrary, defendant No. 1/appellant Usha Rani Dhar widow of Srimanta Kumar Dhar and two other witnesses namely Anil Behari Majumdar, an employee of Bata Shoe Company (India ) Limited and Swapna Dhar, daughter of Srimanta Kumar Dhar were examined from the side of the defendants/appellants. In course of recording the evidence of the parties several documents were marked as exhibits. Thereafter the learned trial Court passed the judgment and decree dated September 22, 1994 and November 7, 1994 respectively in favour of the plaintiff/respondent. In course of recording the evidence of the parties several documents were marked as exhibits. Thereafter the learned trial Court passed the judgment and decree dated September 22, 1994 and November 7, 1994 respectively in favour of the plaintiff/respondent. Being dissatisfied with the said judgment and decree defendants/appellants preferred an appeal before the learned First Appellate Court. The learned first appellate Court affirmed the judgment and decree passed by the learned trial Court. In the aforesaid backdrop this appeal is before us as second appeal. Substantial questions of law has been formulated taking the spirit of legislation codified in Section 100 of the Code of Civil Procedure, 1908 and the same are as follows: 1. As to whether the learned court below has erred in law in considering the deeds starting from the year 1954 to 1966 (exhibited documents) bypassing legal effect of the rest legal evidence on record; 2. As to whether Section 45 of the Transfer of Property Act has been rightly interpreted taking the background of the dispute between the parties. Mr. Sabyasachi Bhattacharjee, learned advocate appearing on behalf of the appellants/defendants has contended that the evidence available on record and the test of the legality of the finding arrived at by the trial Court were not properly assessed by the learned first Appellate Court. There is nothing but non-application of mind by the first Appellate Court and as a result there is consequent failure of the first appellate Court to discharge its judicial obligation. It raises a question of law having substantial impact on the rights of the parties. He as such contended that though there is concurrent finding of fact by the learned Courts below the evidence on record be reappreciated. He has contended that by formulating substantial questions of law the High Court can interfere with the concurrent finding of fact. Mr. Bhattacharjee has contended that the respondent No. 1/plaintiff in his evidence has stated that he joined service in Bata Company in the year 1960 and prior to that he was a student. Therefore, his contribution towards purchase of the suit property in the year starting from 1954 to 1966 does not arise. In the deeds the purchasers were shown as service holder. The respondent No. 1/plaintiff was not the real purchaser to the extent of half share of the suit property in question. Therefore, his contribution towards purchase of the suit property in the year starting from 1954 to 1966 does not arise. In the deeds the purchasers were shown as service holder. The respondent No. 1/plaintiff was not the real purchaser to the extent of half share of the suit property in question. As he was not the service holder at that point of time. He has contended that the date of birth of the respondent No. 1/plaintiff is November 18, 1933 as claimed by him in his evidence but it is an admitted fact that after partition he came to India and got himself admitted in Nungi High School in Class- IV. Therefore, it cannot be said that the respondent No. 1/plaintiff was born in the year 1933. The learned Court below has not considered the diaries maintained by Srimanta Kumar Dhar, predecessor of the appellants showing accounts for relevant period. He has contended further that mere addition of name of respondent No 1/plaintiff in the kobalas or records of rights cannot confer joint membership in relation to the suit property. Section 45 of the Transfer of Property Act in the present case is not attracted in view of the fact that the said section applies only in case of purchase being made from a common fund which element is absent in the present case. The respondent No. 1/plaintiff was a mere benamdar of the predecessor of the appellants. The proper test which was required to be exercised in deciding a question of benami has not been followed by the learned Courts below. The learned Courts below failed to appreciate the evidence vis-a-vis Section 45 of the Transfer of Property Act. Mr. Bhattacharjee has referred to (2000) 1 SCC 434 and (2002) 7 SCC 441 to substantiate his contention. Mr. Prabal Kumar Mukherjee, learned advocate appearing on behalf of the respondents/plaintiffs has contended that there is no direct evidence so far as the payment of consideration money. Might be the elder brother had capacity to purchase the suit property but that by itself cannot be said that consideration money was paid by him alone. The evidence on record was scanned by the learned Courts below and on appreciation of the evidence the judgments and decrees were passed. It is the general rule that the concurrent finding of the Courts below are not disturbed in second appeal. The evidence on record was scanned by the learned Courts below and on appreciation of the evidence the judgments and decrees were passed. It is the general rule that the concurrent finding of the Courts below are not disturbed in second appeal. The appellants/defendants claimed contrary to the law of presumption because kobalas stand in the name of respondent No. 1/plaintiff and his elder brother since deceased. Therefore, the burden of proof shift to the appellants /defendants. Mr. Mukherjee has contended further inviting my attention to the concluding part of Section 45 of the Transfer of Property Act that in the absence of evidence as to the interest in the fund to which respondent No.1/plaintiff and his elder brother were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property. He has referred to the decisions reported in (2009) 5 SCC 264 and (2006) 5 SCC 545 to substantiate his contention. By revisiting the substantial questions of law decisions cited by the learned advocates of the parties need a minute perusal and placement of the relevant part thereof. In the case of Rattan Dev –vs- Pasam Devi, reported in (2002) 7 SCC 441 , the Hon’ble Apex Court has held: “In our opinion, the first appellate Court was bound to apply its mind to all the evidence available on record and then test the legality of the findings arrived at by the trial Court. While doing so, the first appellate Court could have taken the factum of the non-examination of the plaintiff also into consideration. The manner in which the appeal has been disposed of by the first appellate court cannot be said to be satisfactory. Non-application of mind by the appellate court to other material, though available, and consequent failure of the appellate court to discharge its judicial obligation, did raise a question of law having a substantial impact on the rights of the parties, and therefore, the second appeal deserved to be heard on merits.” In the case of Ishwar Dass Jain (Dead) through LRS. –vs- Sohan Lal (Dead ) by LRS., reported in (2000) 1 SCC 434 the Hon’ble Apex Court has observed that it is essential for the High Court to formulate substantial questions of law and it is not permissible to reverse the judgment of the first Appellate Court without doing so. –vs- Sohan Lal (Dead ) by LRS., reported in (2000) 1 SCC 434 the Hon’ble Apex Court has observed that it is essential for the High Court to formulate substantial questions of law and it is not permissible to reverse the judgment of the first Appellate Court without doing so. Both the decisions mentioned above have been placed to show that the High Court in second appeal after formulating substantial questions of law can disturb the concurrent finding of fact of both the Courts. In the case of Hero Vinoth (Minor) -vs- Seshammal, reported in (2006) 5 SCC 545 the Hon’ble Apex Court has held: “In a case where from a given set of circumstances two inferences of fact are possible, the one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible.” The Hon’ble Apex Court in the said judgment has noted down the principles relating to the application of Section 100 CPC which are as follows. “24. (i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable but because the decisions rendered on a material questions, violates the settled position of law. (iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where i) the courts below have ignored material evidence or acted on no evidence; ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously ; or iii) the courts have wrongly cast the burden of proof. When we refer to “decision based on no evidence”, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.” It is now the settled proposition of law that the High Court under Section 100 CPC is justified in disturbing the concurrent finding of fact by formulating substantial questions of law. The principal is that if the concurrent finding is to be interfered with by the High Court in second appeal the formulation of substantial questions of law in view of the intention of the legislature clearly spelt out in a series of cases is a must. This Court has formulated substantial questions of law quoted above. It is required to be considered as to whether the learned Courts below have bypassed the legal effect of the evidence on record at the time of considering the deeds starting from the year 1954 to 1966 which are admittedly standing in the name of Srimanta Kumar Dhar, since deceased elder brother of respondent No. 1/plaintiff and the respondent No. 1/plaintiff Haran Chandra Dhar. I have recorded earlier that the respondent No. 1/plaintiff Haran Chandra Dhar was his sole witness before the learned trial Court and on the contrary wife and daughter of Srimanta Kumar Dhar since deceased and an employee of Bata Shoe Company were the witnesses from the side of the appellants/defendants The learned trial Court scrutinized the evidence of P.W.1 Haran Chandra Dhar, D.w.1 widow of Srimanta Kumar Dhar, D.W.2 Anil Behari Majumdar, Junior Accountant of Batanagar Employees’ Co-operative Society Limited, Batanagar and the evidence of D.W.3 daughter of Srimanta Kumar Dhar as well as the savings bank passbook, passbook of Chittaganj and diary (vide page No. 29 to 37 of the paper book). After making necessary scrutiny of the evidence on record the learned trial Court arrived at a finding that “it is not possible for me to hold that the defendant paid all the consideration money exclusively for the suit property.” The learned first appellate Court has dealt with the evidence of P.W.1, D.W.1 and the exhibits including payment of tax to the municipality and entry in the record of rights and has arrived at a decision “there is no conclusive prove that entire consideration money was paid by Srimanta Kumar Dhar, since deceased or by his own money he made construction.” It has been held by the first appellate Court that the witnesses of the defendants/appellants cannot be the witnesses who can disclose the intention of Srimanta Kumar Dhar since deceased at the time of purchase of the suit property. The case of the defendant touching will claimed to have been executed by Srimanta Kumar Dhar in respect of the properties were also considered and the Court has arrived at a decision that the will in question has not been produced in the case (vide page No. 8 to 16 of the paper book). The learned Courts below have dealt with Section 45 of the Transfer of Property Act in the body of their judgment. It is an admitted fact that the suit property was purchased by virtue of five different deeds executed in the year 1954, 1955,1956,1963 and 1966. The names of the purchasers are Srimanta Kumar Dhar, elder brother of respondent No. 1/plaintiff since deceased and Haran Chandra Dhar, respondent No. 1/plaintiff. It is a fact that the purchaser’s profession was noted in the deed saying that they were the service holder. The names of the purchasers are Srimanta Kumar Dhar, elder brother of respondent No. 1/plaintiff since deceased and Haran Chandra Dhar, respondent No. 1/plaintiff. It is a fact that the purchaser’s profession was noted in the deed saying that they were the service holder. The deeds/kobalas show that the consideration money was paid by the purchasers. The defendants/appellants took a specific case that the consideration money was paid by their predecessors Srimanta Kumar Dhar. Admittedly, there is no specific evidence from the side of the defendants/appellants to show that they witnessed the transactions recorded in the body of the kobalas and payment of consideration money. Therefore, the evidence of D.W.1 and D.W.3 widow and daughter of Srimanta respectively regarding the payment of consideration money at the time of transaction is of no value in the eye of law. The evidence on record shows that Srimanta Kumar Dhar was a member of Batanagar Employees’ Cooperative Society Limited, Batanagar and he had savings bank passbook in his name with that co-operative society limited. There were savings in his name. It has come in evidence that he used to maintain diary. There is note in the diary regarding payment of land and for its development purpose. It is an admitted fact that Srimanta Kumar Dhar was the karta of the family and respondent No. 1/plaintiff used to reside with him having a joint mess. It is not unlikely that he will maintain diary noting down, family’s day to day expenditure as karta of the family. There is no note in any form in the diary that the payment was made exclusively from the fund of Srimanta Kumar Dhar. There is no evidence in written form on record to show that Srimanta Kumar Dhar paid the consideration money from his own income. It has come in evidence that Srimanta Kumar Dhar and his brother Haran Chandra Dhar were the resident of Pakistan (now Bangladesh)). His father was a resident of Bangladesh having some landed property there. It has come in evidence that Srimanta Kumar Dhar joined Bata Shoe Company (India ) Limited and retired from the service. But the evidence cannot be taken to arrive at a finding that Srimanta Kumar Dhar having capacity paid the consideration money alone from his own income. His father was a resident of Bangladesh having some landed property there. It has come in evidence that Srimanta Kumar Dhar joined Bata Shoe Company (India ) Limited and retired from the service. But the evidence cannot be taken to arrive at a finding that Srimanta Kumar Dhar having capacity paid the consideration money alone from his own income. The evidence on record displays that respondent No. /plaintiff was born on 18th November,1933 and joined in service on November 29, 1960. Some of the properties are admittedly purchased after the respondent No. 1/plaintiff joined in the service. Section 45 of the Transfer of Property Act deals with joint transfer for consideration. The section is quoted hereunder. “45. Joint transfer for consideration.- Where immovable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as nearly as may be, with interests to which they were respectively entitled in the fund; and, where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respecibvely entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced. In the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property.” The case in our hand shows absence of evidence regarding common fund belonging to the joint purchaser. So the interest or the share of the joint purchasers therein does not arise. The evidence of payment of consideration money by the predecessor of appellant/defendants exclusively from his fund /own income as claimed by the appellants/defendants is not sound and does not inspire confidence. Therefore, in that backdrop the joint purchasers shall be presumed to be equally interested in the property. The learned Courts below has arrived at a concurrent finding after scanning the evidence on record. The finding is logical on proper appreciation of the oral and documentary evidence on record. The appellants/defendants claimed contrary to the law of presumption because deed/kobala stand in the name of respondent No. 1/plaintiff and his elder brother since deceased. The learned Courts below has arrived at a concurrent finding after scanning the evidence on record. The finding is logical on proper appreciation of the oral and documentary evidence on record. The appellants/defendants claimed contrary to the law of presumption because deed/kobala stand in the name of respondent No. 1/plaintiff and his elder brother since deceased. There is no odd in the judgment and decree passed by the learned Courts below. In the result, the appeal stand dismissed.