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2014 DIGILAW 107 (CHH)

MANSEER DEVI v. SALIKRAM

2014-03-07

SANJAY K.AGRAWAL

body2014
JUDGMENT 1. This is defendants’ Second Appeal filed under Section 100 of Code of Civil Procedure (for short ‘the CPC’) challenging the judgment and decree dated 22.07.1999 passed by 2nd Additional District Judge, Bilaspur in Civil Appeal No.22-A/1998 affirming the judgment and decree dated 27.11.1995 passed by IVth Civil Judge, Class-I, Bilaspur, in Civil Suit No. 409-A/92, decreeing the suit. [For sake of convenience, the parties would be referred hereinafter as per their status before the trial Court] 2. Plaintiff, five in number, filed a suit for declaration and permanent injunction stating inter alia that the property recorded in the name of defendant No.1-Smt. Mansirdevi Rajput is the property held by plaintiffs and defendant No.2 -Shankarlal jointly as the said suit property was purchased on 16.11.1976 from the income of undivided Hindu family from Shri Shankar Prasad Tiwari for a cash consideration of Rs.9,000/- in the name of defendant No.1 - Mansir Devi and the transaction was Benami. 3. The trial Court, by its judgment & decree dated 27.11.1995 decreed the suit holding that the scheduled suit property was purchased out of the income of the Hindu undivided family in the name of Mansir Devi and the transaction is Benami transaction but in view of Section 4(3)(a) of the Act, the prohibition contained in Section 4(1) of the Act would not be applicable. 4. The defendants preferred first appeal thereagainst. The first appellate court, after re-appreciating the entire evidence adduced in the case, affirmed the judgment and decree passed by the trial court, leading to filing of this Second Appeal under Section 100 of the Code of Civil Procedure. 5. Learned counsel appearing for the defendants would submit that concurrent findings recorded by both the courts below are perverse and that give rise a substantial question of law for determination in this appeal. 6. I have heard learned counsel appearing for the parties and perused the records of both the courts below. 7. In order to appreciate the question raised, it will be profitable to refer Section 4 of the Transactions (Prohibition) Act, 1988, which reads thus: "4. 6. I have heard learned counsel appearing for the parties and perused the records of both the courts below. 7. In order to appreciate the question raised, it will be profitable to refer Section 4 of the Transactions (Prohibition) Act, 1988, which reads thus: "4. Prohibition of the right to recovery property held benami – (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) 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. (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." 8. On a reading of sub-section (2) quoted above, it would appear that defence based on any right in respect of any property held Benami is not permissible, however, sub-section (3) quoted above craves out exception to the impermissibility referred in sub-section (3), it is provided that the provisions of section 4 of the Act. Under sub-section (3), it is provided that the provisions of Section 4 would not apply where the property is held in the name of a coparcener of a Hindu undivided family and the property is held for the benefit of the coparceners in the family or person in whose name the property is held is a trustee or is standing in a fiduciary capacity and the property is held for the benefit of another for whom he is a trustee or towards whom he stands in such capacity. 9. In a decisions Pradeep Kumar Vs. 9. In a decisions Pradeep Kumar Vs. Mahaveer Pershal and others AIR 2003 AP 107 , Sardar Mehnga Singh Vs. P.D. Das, 1993 MPLJ 416 and Kuldeep Sharma and others Vs. Satyendra Kumar Sharma and other, AIR 2001 Allahabad 366, it has been held that when the property is purchased in the name of one coparcener in the family or in the name of Karta of the joint family, the provisions contained in sub-section (3) of section 4 of the Act would apply and the bar under sub-sections (1) and (2) of Section 4 of the Act would not apply. 10. Reverting back to the facts of the present case, a bare perusal of the records would show that there is overwhelming evidence on recorded to hold that the scheduled suit property was purchased out of the income of Hindu undivided family in the name of defendant No.1 - Smt. Manseer Devi for the welfare and interest of the joint family and by virtue of Section 4(3)(a) of the Act of 1988, provisions of Benami Transactions (Prohibition) Act, 1988 would not be applicable. Thus, the said finding recorded by both the courts below are finding of fact based on material available on record and I do not find it either perverse or contrary to record and no question of law much less substantial question of law is involved in this appeal. 11. Recently, the Supreme Court in the case of Vishwanath Agrawal, S/o Sitaram Agrawal Vs. Sarla Vishwanath Agrawal, (2012) 7 SCC 288 has held that High Court should not disturb the concurrent finding of fact, unless finding recorded are perverse being based on no evidence. Para-36, 37 of report as under: “36. In Major Singh Vs. Rattan Singh, (1997) 3 SCC 546 : AIR 1997 SC 1906 it has been observed that when the courts below had rejected and disbelieved the evidence on unacceptable grounds, it is the duty of the High Court to consider whether the reasons given by the courts below are sustainable in law while hearing an appeal under Section 100 of the Code of Civil Procedure. 37. In Vidhyadhan Vs. 37. In Vidhyadhan Vs. Manikrao, (1999) 3 SCC 573 it has been ruled that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the Courts below are perverse being based on no evidence or that on the evidence on record no reasonable person could have come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure. This view of ours has been fortified by the decisions of this Court in Abdul Raheem Vs. Karnataka Electricity Board, (2007) 14 SCC 138 : AIR 2008 SC 956 ." 12. Keeping in view, the ratio of law laid down by the Supreme Court in the aforesaid case, the concurrent finding of fact recorded by both the courts below is based on evidence, no substantial question of law is involved in this appeal, thus appeal deserves to and accordingly dismissed at admission stage itself. No order as to costs. Appeal Dismissed.