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2014 DIGILAW 1069 (CAL)

Kamala Adhikari v. Manju Das

2014-11-14

GIRISH CHANDRA GUPTA, SHIB SADHAN SADHU

body2014
JUDGMENT : 1. The appeal is directed against a Judgment and decree dated 29th November, 2007 by which the learned Trial Court issued a preliminary decree in a partition suit declaring that the plaintiffs and the defendants have 1/7th share each in the suit plots. However, the defendant no.1 was declared to be the exclusive owner with regard to portion of the suit plots acquired by her by sell from the original owner Radharani Adhikary. In other words, after deducting the area which was purchased by the defendant no.1, the balance land is to be distributed amongst the parties to the suit in the ratio of 1/7th share each. 2. Aggrieved by the Judgment and decree the plaintiff has come up in appeal. 3. Dr. Mondal, learned advocate appearing for the plaintiffs/appellants, submitted that the land allegedly purchased by the defendant no.1 from Radharani should not have been excluded nor the same should have been declared to be under the exclusive ownership of the defendant no.1 because the alleged sale is invalid in law. 4. His second submission is that the learned Trial Court held that the business run by the plaintiffs in a shop room situate in a portion of the joint property should be allotted to the defendant no.2, Biswajit Adhikary. According to him, this direction is altogether illegal. 5. These are the two points raised by Dr. Mondal. 6. Mr. De, learned advocate appearing for the defendant nos.1 and 2, submitted that the sale in favour of the defendant no.1 by Radharani is evidenced by duly executed and registered deed of conveyance. There is no reason why the sale in favour of the defendant no.1 should be held inoperative in law or invalid in law. 7. With regard to the second contention of Dr. Mondal, Mr. De submitted that it is a fact that the plaintiffs have been continuing the business. 8. In sofar as the first point raised by Dr. Mondal is concerned, we have not been shown any definite ground as to why is the sale in favour of the defendant no.1 by the common ancestor is bad in law. 9. To begin with, the contention that the sale in favour of the defendant no.1 is inoperative in law was not originally there in the suit. This contention has subsequently been brought in by way of an amendment to the plaint. 9. To begin with, the contention that the sale in favour of the defendant no.1 is inoperative in law was not originally there in the suit. This contention has subsequently been brought in by way of an amendment to the plaint. The case of the plaintiffs with regard to the sale in favour of the defendant no.1 appearing from the plaint is as follows:- "Defendant No.1 declares that on 27.11.67 and 22.11.67 she purchased (Ka) and (Kha) schedule properties in suit along with the properties on Dag No.632 from Radharani. But in fact Radharani never sold (Ka) and (Kha) Schedule properties in suit to defendant no.1 and there was no reason for such sale. Radharani has sons and daughters Radharani never sold (Ka) and (Kha) schedule properties in suit to defendant no.1 depriving her sons and daughters and (Ka) and (Kha) schedule properties were never possessed by defendant no.1. The sale deeds dated 27.11.67 and 22.11.67 executed by Radharani in favour of defendant no.1 in respect of (Ka) and (Kha) schedule properties are forged and the aforesaid deeds have no legal strength and the said deed are not at all binding on the plaintiffs. The said deeds are void deeds." 10. Issue No.5 framed by the learned Trial Court reads as follows:- "5. Are the deeds dated 22.11.67 and 27.11.67 alleged to be executed by Radharani in favour of the defendant no.1 are forged, in-operative, void and not binding upon the plaintiff and without consideration?" 11. The learned Trial Court has answered the issue no.5 in favour of the defendants. In other words, the challenge thrown against the sale in favour of the defendant no.1 was rejected by the learned Trial Court. The reasons advanced by the learned Trial Court for rejecting the contention of the plaintiffs are as follows:- (a) Preponderance of proof in respect of execution of two sale deeds in (Exhibits (a) and (b)) by Radharani Adhikari in favour of Manju Das, (defendant no.1) is in favour of the defendant no.1. It has sufficiently been proved that Radharani executed the sale deeds dated 22nd November, 1967 and 27th November, 1967 being Exhibits (a) and (b) in favour of the defendant no.1 to the extent of 5 decimals at suit plot no.631 and 644 recorded in two separate khatians. (b) The exhibits (a) and (b) were tendered in evidence by consent of the parties. (b) The exhibits (a) and (b) were tendered in evidence by consent of the parties. (c) There is evidence to show that the defendant no. 1 mortgaged the property for the purpose of securing a loan and subsequently redeemed the mortgage. (d) The property has been mutated in favour of the defendant no. 1. 12. Dr. Mondal, did not dispute these facts. Although he faintly suggested that the mutation in favour of defendant no.1, if any, was not proved by documentary evidence. But he did not dispute the fact that the defendant no. 1 was not confronted during her cross-examination with any such question. Nor was her deposition that the land had been duly mutated in her favour was even cross-examined. 13. Dr. Mondal, contended that the sale was never intended to be real. It was a sham transaction which is evidenced by the fact that: (a) The deeds of conveyance being exhibit (a) and (b) do not delineate the area or part of the land allegedly sold to the defendant no. 1. No map indicating the portion allegedly sold to the defendant no. 1 has been annexed to the deed of conveyance. (b) Possession of the land allegedly sold to the defendant no. 1 was never made over. (c) The husband of the defendant no. 1 a big Raiyat within the meaning of the provision of the West Bengal Land Reforms Act, 1955 was required to file a return describing the lands retained by him under section 14 T of the West Bengal Land Reforms Act, 1955. It is on evidence that such a return was filed by the husband of the defendant no. 1 but the piece or pieces of land allegedly sold to the defendant no. 1 by exhibit (a) and (b) were not included therein which is a pointer to show that this transaction was not intended to be a real transaction. The sale was nominal rather than a real transaction. 14. He drew our attention to a Judgment of the Apex Court in the case of Bhim Singh v. Kan Singh reported in AIR 1980 SC 727 wherein Their Lordships were considering types of Benami transaction. Their Lordships held that there can be two types of Benami transactions. The sale was nominal rather than a real transaction. 14. He drew our attention to a Judgment of the Apex Court in the case of Bhim Singh v. Kan Singh reported in AIR 1980 SC 727 wherein Their Lordships were considering types of Benami transaction. Their Lordships held that there can be two types of Benami transactions. One such is:- "Where a person who is the owner of the property executes a conveyance in favour of another without the intention of transferring the title to the property thereunder. In this case, the transferor continues to be the real owner. The question whether a transaction is a benami transaction or not mainly depends upon the intention of the person who has contributed the purchase money in the former case and upon the intention of the person who has executed the conveyance in the later case." 15. He submitted that if the intention was to sale the property the identification of the portion sold could not have been missed out from the deed of conveyance nor could the property itself have been missed out from the return filed by the husband of the defendant no. 1. 16. He submitted that the effect of any omission on the part of the defendant no. 1 or her husband to disclose the property in the schedule of the retained lands is that the land to that extent shall vest in the State but possession shall continue to remain with the owner or owners as the case may be. 17. We have not been impressed by the submission advanced by Dr. Mondal for the following reasons. 18. Lack of description of the property sold or identification of the portion sold to the defendant no. 1 is a pointer to show that an undivided portion of the land was sold to the defendant no.1. It was a sell by the grand-mother in favour of the granddaughter. There is evidence to show that the father of the defendant no.1, Raghupada Adhikary was a person of humble means whereas the husband of the defendant no.1 was a wealthy person. There is evidence on the record to show that from time to time father of the defendant no.1 and her grandmother took financial assistance from her. The deeds of convayance themselves disclose that the vendor was in need of money. There is evidence on the record to show that from time to time father of the defendant no.1 and her grandmother took financial assistance from her. The deeds of convayance themselves disclose that the vendor was in need of money. In order to avoid sell to a stranger, the sale was made in favour of the grand-daughter so that the property did not go to any outsider. The plaintiff at that point of time was a minor aged about 12 years as would appear on the basis of arithmetic from the age declared by him. The evidence adduced by the mother of the defendant no.1 supporting the case of the plaintiff has been disbelieved by the learned Trial Court for appropriate reasons including that she did not have any personal knowledge as to the transaction nor did she accompany her mother-in-law Radharani to the registration office where the deeds were executed and registered. In order to answer the question as to whether the sale was a real transaction, the appropriate question to ask, according to us, is whether the sale was acted upon. There is evidence to show that the defendant no.1 appointed the defendant no.2 to look after her interest in the property. Reference in this regard may be made to the following evidence adduced by her:- "That I used to live at my matrimonial home and it was not possible on my part for looking after my purchased land. So, I have given authority to my youngest brother Sri Biswajit Adhikary for looking after and manage of my said purchased property day to day. Accordingly on my direction he used to plant vegetable on my said land and at times he used to give me the produces." 19. What is interesting to note is that there is no cross-examination whatsoever by the plaintiff on this part of the evidence of the defendant no.1. 20. We already have indicated that there is evidence to show that the property was mutated in her favour; she also raised loan by mortgaging the property which is a pointer to show that the sale was acted upon. 21. We are, as such, unable to attach any importance to the submissions of Dr. Mondal. 22. The submission as regards omission to disclose the property in the schedule of the retained land by the husband of the defendant no.1 is equally without any substance. 23. 21. We are, as such, unable to attach any importance to the submissions of Dr. Mondal. 22. The submission as regards omission to disclose the property in the schedule of the retained land by the husband of the defendant no.1 is equally without any substance. 23. It is true that the return filed by the husband of the defendant no.1 did not contain any reference to this land. But the effect of such omission does not appear to be vesting of the land in the State as contended by Dr. Mondal. The effect of any such omission is prescribed in Sub-Section (4) of Section 14T which reads as follows:- "If a raiyat fails to furnish, without any reasonable excuse, the return referred to in sub-section (1), or sub-section (2), within the prescribed time or wilfully makes any omission or incorrect statement in such return, he shall be punishable with imprisonment which may extend to two years or with fine which may extend to five thousand rupees or both." 24. The question as to the claim or contention which may be raised by the State is not an issue with which we are concerned in this appeal. 25. Dr. Mondal is contending that because this disclosure was not made in the return of retained lands, the sale is inoperative. We are unable to accept this submissions. 26. If the omission was unintentional one set of consequences are likely to follow. If it was intentional another set of consequences may follow. 27. The Judgment relied upon by Dr. Mondal in the case of Bhim Singh v. Kan Singh (supra) does not lend any assistance to his client because in the case before us there is no contention raised by the plaintiff on the theory of benami. 28. The case of the plaintiff is (i) The land was never sold; (ii) There was no reason for sell; (iii) possession was never made over to the defendant no.1; (iv) The deeds are forged; (v) The deeds are void. 29. From the aforesaid allegations one can certainly say that the plaintiff was altogether uncertain as to his case with regard to the sale of the land to the defendant no.1. The fact that the land was sold is evidenced by the deed of conveyance which were laid in evidence by consent of the parties. 29. From the aforesaid allegations one can certainly say that the plaintiff was altogether uncertain as to his case with regard to the sale of the land to the defendant no.1. The fact that the land was sold is evidenced by the deed of conveyance which were laid in evidence by consent of the parties. The reason why land was sold is indicated in the deeds of conveyance themselves. The fact that possession was made over to the defendant no.1 has been proved by her evidence which we have indicated above which the plaintiff never disputed during her cross-examination. There are no particulars of alleged forgery. Had it been a case of forgery, the deeds could not have been exhibited during trial by consent of the parties. The deeds of conveyance do not become void just because the plaintiff chooses to call them void. 30. The views expressed by Their Lordships in the case of Bhim Singh v. Kan Singh are with regard to a benami transaction. In the present case the sale was for good consideration backed by a duly registered deed of conveyance. The sale was acted upon. Possession was given. The mutation has been carried out. The land was mortgaged by the defendant no.1 to secure a loan and subsequently redeemed. Therefore, the contention that the sale was never intended to be made by Radharani is without any leg to stand upon. Radharani during her life time did not challenge the sale. It is almost 30 years after her death that the sale was brought into question for no good reason whatsoever. 31. All the submissions advanced by Dr. Mondal have thus been dealt with and rejected. His objection to that extent is overruled. 32. With regard to the second objection of Dr. Mondal, Mr. De learned advocate appearing for the defendant no.1 and 2 has very fairly admitted the fact that the plaintiff has been running the business for some time past. There is evidence to show that the defendant no.2 was unable to run the business and the shop was lying closed. Thereafter, the plaintiff reopened the business. But the exact date or time or period is not on the record. 33. There is evidence to show that the defendant no.2 was unable to run the business and the shop was lying closed. Thereafter, the plaintiff reopened the business. But the exact date or time or period is not on the record. 33. Considering that the plaintiff has been running the business and he is earning his livelihood therefrom the learned Trial Court should not have directed that the shop room should be allotted to the defendant no.2. To that extent the Judgment and decree passed by the learned Trial Court is varied. The aforesaid direction is deleted. 34. The appeal is thus partly allowed. Parties shall however bear their own costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties, upon compliance of all formalities.