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2014 DIGILAW 642 (HP)

Avdesh Kumar v. Hari Mohan Prasad

2014-05-24

SURESHWAR THAKUR

body2014
JUDGMENT Sureshwar Thakur, Judge The plaintiff had instituted a suit for declaration that he is real owner in possession of the land, measuring 1 Kanal, comprised in Khata No.1 67 min, Khatauni No.288 min, Khasra No.1685, out of the total land measuring 1801 -60 centairs, situated in Malahat Nagar, District Una. It is prayed that the sale deed executed on 11.4.1984, in favour of the defendant, qua half share of the suit land, is, as Benamidar and the same is illegal, void, ineffective against the right of the plaintiff. The consequential relief, as prayed for by the plaintiff, was that the defendant be restrained from interfering in the suit land or taking forcible possession of any portion of the constructed house thereon. The plaintiff has set up the case that the defendant, is, his real younger brother and has been serving in the H.P. State Electricity Board, since 1968. As a result of natural love and affection towards the defendant, the plaintiff brought his younger brother to Una from his native place, in, the State of Bihar. The defendant completed his B.Sc. in the year 1982 and the plaintiff admitted the defendant in the course of B.Ed. in Gandhi Memorial College, Srinagar (J & K). It is averred that the plaintiff has borne all the expenses incurred on the education of the defendant at Srinagar. The plaintiff purchased the suit land on 11.4.1984 and the entire consideration was paid by him. It is on the basis of love and affection, he got the name of the defendant entered in the sale deed, as, owner of half share in the suit land. The defendant, being unemployed, was financially disempowered from paying the sale consideration. The defendant joined the Government service as B.Sc. trained teacher in the year 1986 at Jispa in Lahaul Spiti, H.P. On the purchase of the suit property, the plaintiff raised a building thereupon, in the year 1986 and the investment was exclusively Made by him. The defendant was transferred from Lahaul Spiti to Una on 31 .7.1990 and started residing in the rented accommodation, in a nearby place. It is alleged that from the last one week before the filing of the suit, the defendant commenced advancing threats to the plaintiff to take forcible possession of the suit property. The cause of action is stated to have arisen then in favour of the plaintiff. It is alleged that from the last one week before the filing of the suit, the defendant commenced advancing threats to the plaintiff to take forcible possession of the suit property. The cause of action is stated to have arisen then in favour of the plaintiff. Hence, the suit for declaration and injunction. . 2. The suit of the plaintiff was resisted by the defendant. The defendant admitted that the plaintiff is his brother and both had love and affection for each other. It is also admitted that he had completed B.Sc. in the year 1982 from Bihar and then got admission in B.Ed. Course. Defendant denied that the plaintiff had spent money on his education, rather, it was contended by the defendant that he, from his evocation as a tutor, reared an income for himself. The suit land was purchased by both the brothers in equal share and accordingly the sale consideration was paid by him also. The sale consideration was borne by a common friend of both the parties, namely, Shri Kartar Singh Saini, who helped in the purchase of the suit land and also paid Rs.10,000/- as sale consideration. The amount, aforesaid, lent ,by Shri Kartar Singh Saini for purchasing the suit property, at the time of the execution of the sale deed, has been re-paid to Shri Kartar Singh Saini. It is denied that the house was exclusively constructed by the plaintiff from his own income. It is emphasized that the defendant had also contributed towards the construction expenses. Relations between both the parties have been contended to have become strained when the plaintiff started mal-treating his brother. Ultimately the plaintiff has thrown away the luggage and other household articles of the defendant from the house qua which a criminal case is still pending in the Court. Moreover, the defendant has also taken preliminary objections of estoppel, limitation, locus-standi and the suit is barred under Section 4(2)(a) of the Benami Transactions (Prohibition) Act, 1988. 3. The plaintiff filed replication to the written statement of the defendant, wherein, he denied the contents of the written statement and re-affirmed and re-asserted the averments made in the plaint. 4. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. Whether the respondent is owner in possession of the suit property, as alleged? OPP 2. 4. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. Whether the respondent is owner in possession of the suit property, as alleged? OPP 2. Whether the suit is barred U/S 4 (2) (a) of the Benami Transaction Prohibition Act, as alleged? OPD 3. Whether the plaintiff is estopped by his acts and conducts from bringing the suit, as alleged? OPD 4. Whether the suit is barred by limitation, as alleged? OPD 5. Whether the plaintiff has no locus standi to sue, as alleged? OPD 6. Relief. 5. On appraisal of the evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff. In appeal, preferred before the learned first Appellate Court, against the judgment and decree of the learned trial Court, the learned first Appellate Court affirmed the findings, recorded by the learned trial Court and consequently, it affirmed the judgment and decree passed in favour of the plaintiff by the learned trial Court. 6. Now the defendant has instituted the instant Regular Second Appeal before this Court, assailing the findings recorded by the learned first Appellate Court in its impugned judgment and decree. When the appeal came up for admission on 29.12.2009, this Court, admitted the appeal instituted by the defendant against the judgment and decree rendered by the learned first Appellate Court, on, the hereinafter extracted substantial questions of law:- 1. Whether the learned Courts below were correct in holding that the sale transaction in question was covered by Section 4(3) of the Benami Transactions (Prohibition) Act, 1988? 2. Whether the suit was maintainable in view of the provisions of Section 4(1) and (2) of the Benami Transactions (Prohibition) Act, 1988? Substantial Questions of Law No.1 and 2. 7. Since both the aforesaid extracted substantial questions of law are entwined, hence, they being interlinked, necessitate a cumulative decision. 8. 2. Whether the suit was maintainable in view of the provisions of Section 4(1) and (2) of the Benami Transactions (Prohibition) Act, 1988? Substantial Questions of Law No.1 and 2. 7. Since both the aforesaid extracted substantial questions of law are entwined, hence, they being interlinked, necessitate a cumulative decision. 8. The learned counsel, appearing for the defendant/appellant, while relying upon a catena of decisions rendered in (2001) 3 SCC 179 , AIR 2000 SC 423 , AIR 2008 MP 846, AIR 1995 SC 2145 , AIR 1989 Kerala 317, AIR 1999 SC 2213 , AIR 1989 SC 1247 , AIR 1980 SC 892 with vehemence and fervor, canvassed before this Court the proposition that the suit property, as purchased under sale deed comprised in Ex.PW4/A, as, evident from its narration, in the opening pages thereof, is purchased jointly, in the name of the plaintiff, as well, as the defendant. Conjunctively, construed with the testimony of DW-2 Professor Kartar Singh Saini and the vendor of the suit property, namely, PW-5 Onkar Chand displaying the fact of the sale consideration having been paid in entirety by DW-2 Professor Kartar Singh Saini, to, the vendor PW-5 Onkar Chand, to enable, both to jointly purchase the suit property, hence, evidence the palpable fact of both having jointly borne or shared the sale consideration, as such, having acquired a joint title to the suit property. Consequently, it is urged by the learned counsel for the defendant/appellant, that, he had acquired an independent title to the suit property along with the plaintiff and that even, on his not having signatured Ex.PW4/A, is inconsequentially nor whittles his right over/upon the suit property. As a sequitor, it is espoused before this Court that the suit, is, hit by the provisions of Section 4(2)(a) of the Benami Transactions (Prohibition) Act, in, as much as, the plaintiff, is, holding the entire suit property purchased, in the name of defendant, even when the sale consideration for a share thereon has been defrayed by the defendant, as well. 9. 9. Further more, it is also contended before this Court that the learned Courts below misdirected, themselves, in not according appropriate legal leverage to the factum, as borne out by receipts, placed on record, demonstrating the fact of DW-2 Professor Kartar Singh Saini having received, at various points of time, repayment of the sums of money, from the defendant, as previously lent to the latter. They are a pointer to the fact and corroborate the testimony of PW-5 Onkar Chand, the vendor, as well, as the testimony of DW-2 Professor Kartar Singh Saini, of, the later having lent money to the defendant to defray the sale consideration to the vendor on behalf of the plaintiff as well as the defendant. Its being omitted to be revered or its probative worth having not come to be appreciated, has occasioned erroneous findings on the part of the learned Courts below, in, as much as, their erroneously concluding that the entire sale consideration for purchase of the suit property comprised in Ex.PW4/A, was borne by the plaintiff. Rather, the effect of the receipts, as placed on record, is demonstrative of the fact of DW-2 Professor Kartar Singh Saini having paid the sale consideration to the vendor PW-5 Onkar Chand on behalf of both. Consequently, it countervails, the reasoning, of, the learned Courts below, of the testimony of PW5 Onkar Chand, the vendor of the suit property, acquiring no legal force or it having no evidentiary, value qua the fact of his having received the sale consideration from DW-2 Professor Kartar Singh Saini on behalf of both the parties in contest, on the ground (i) that, his, testimony is an interested testimony, in, as much as, at the time of his deposing the said fact that there was an on going litigation inter-se the plaintiff and the vendor, as a sequel, (ii) then his testimony, though, untenably construed to be tainted with the vice of interestedness in the face of the receipts, aforesaid, is to be rather construed to be the best as well as untainted evidence, qua the fact that the entire sale consideration for the purchase of the suit property comprised in sale deed Ex.PW4/A having defrayed by DW-2 Professor Kartar Singh Saini on behalf of both the parties at contest. 10. 10. Lastly, it has been contended before this Court by the learned counsel for the defendant/appellant that the provisions of Section 82 of the un-repealed Indian Trusts Act which read:- “Transfer to one for consideration paid by another- where property is transferred to one person for a consideration paid or provided by another person and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration. Nothing in this section shall be deemed to affect the Code of Civil Procedure, Section 317 or the Act No. XI of 1859 (to improve the land relating to sales of lands for arrears of revenue in the Lower Provinces under the Bengal Presidency), Section 36.” The aforesaid provisions, have been both misconstrued and inappropriately applied to the facts of the case in hand, in, as much as, the provisions of Section 82 of the Indian Trusts Act, to, give capitalization to the case of the plaintiff/respondent, necessitated theirs being in vogue or in existence even at the time of the institution of the suit. However, when the aforesaid provisions of the Indian Trusts Act came to be repealed in the year 1988 and were replaced by the provisions of Benami Transactions (Prohibition) Act, 1988, the case of the plaintiff/respondent was encompassed within the ambit of the prohibitive provisions of the Benami Transactions (Prohibition) Act, 1988 and not by the protective provisions of Section 82 of the Indian Trusts Act, as inappositely, untenably and inappropriately applied by the learned Courts below. 11. The learned Counsel appearing for the plaintiff/respondent has contended before this Court that the findings, recorded in the impugned judgment and decree of the learned Courts below, are well reasoned and do not warrant any interference by this Court while deciding this Regular Second Appeal. 12. 11. The learned Counsel appearing for the plaintiff/respondent has contended before this Court that the findings, recorded in the impugned judgment and decree of the learned Courts below, are well reasoned and do not warrant any interference by this Court while deciding this Regular Second Appeal. 12. The initial submission of the learned counsel appearing for the defendant/appellant, that, both the learned Courts below have concurrently mis-held the fact of the suit property being not covered within the prohibitive ambit of the prohibition clause of the Benami Transactions (Prohibition) Act, 1988 and his also, espousing before this Court, that the learned Courts below, have proceeded, too, also concurrently mis-hold the fact of sale consideration having not been paid by the defendant/appellant, rather it having in its entirety being borne by the plaintiff/respondent, has focused upon the mis-appreciation of the testimonies of DW-2 Professor Kartar Singh Saini and the vendor Onkar Chand. Both have deposed in tandem qua the fact of the sale consideration having been paid by DW-2 Professor Kartar Singh Saini on behalf of both the parties at contest. However, the testimony of the vendor PW-5 Onkar Chand has been dispelled on the score of his at the time of the recording of his deposition to the effect above, having, an on going litigation with the plaintiff and his testimony losing the merit of impartisanship, rather, acquiring the vice of interestedness. Hence, it came to be discarded. The said reasons for the outweighing of his testimony or it having come to be dispelled and having become unmeritorious, has been espoused to be flawed, as such, rendering the said findings to be imbued with an error of mis-appreciation of evidence, in as much, as (a) receipts issued by Professor Kartar Singh Saini to the defendant/appellant, displaying the facts of his having received from the defendant/appellant the sums of money as lent to him for paying, on his behalf the sale consideration to the vendor PW-5 Onkar Chand. In case, the receipts, aforesaid, as issued by DW-2 Professor Kartar Singh Saini to the defendant/appellant, acquire legal tenacity and probative worth, they would comprise the best evidence for constraining this Court to construe that the defendant/appellant, had, also made the payment of the sale consideration to the vendor. In case, the receipts, aforesaid, as issued by DW-2 Professor Kartar Singh Saini to the defendant/appellant, acquire legal tenacity and probative worth, they would comprise the best evidence for constraining this Court to construe that the defendant/appellant, had, also made the payment of the sale consideration to the vendor. Rather, the testimony of PW-5 Onkar Chand, the vendor, qua the fact of his having received the sale consideration from PW-2 Professor Kartar Singh Saini, who defrayed the same to him on behalf of both the vendees, on a promise by the latter to subsequently repay it to him, stands corroborated. Hence, dehors the on going litigation inter-se the plaintiff/respondent and vendor qua the fact above, whose pendency has been construed by the learned trial Court to be rendering the vendee an interested witness, hence, his testimony unreliable, qua the said fact deposed by him, would, on the contrary constrain this Court to rather spur an inference of such a conclusion being unwarranted. In other words, hence, the testimony of PW-5 Onkar Chand, the vendor would stand corroborated and this Court would be coerced to lean to impute credibility to the fact as aforesaid deposed by him. 13. Now, hence, while imperatively proceeding to analyze and fathom, the probative worth, acquired by the receipts, aforesaid, as exist on record purportedly displaying the fact of Professor Kartar Singh Saini, having received the sums of money from the defendant/appellant, on theirs having been repaid, as they were previously lent to him, for defraying the sale consideration on behalf of the parties at contest, to, the vendor at a stage contemporaneous to the execution of Ex.PW4-A. In the said endeavour, it is necessary to discern whether such receipts have been proved in accordance with law. If they stand proved in accordance with law, they acquire legal worth. However, a perusal of the said receipts reveals that they have been merely placed on the file. They have neither been tendered in evidence nor proved and exhibited on record. Hence, they have not been formally proved in accordance with law. Consequently, when it has been held in Sait Tarajee Khim Chand & Ors. versus Yelamarti Satyam & Ors., AIR 1971 SC 1865 , that the mere marking of a document as an exhibit does not dispense with its proof. Hence, they have not been formally proved in accordance with law. Consequently, when it has been held in Sait Tarajee Khim Chand & Ors. versus Yelamarti Satyam & Ors., AIR 1971 SC 1865 , that the mere marking of a document as an exhibit does not dispense with its proof. Consequently, with the receipts merely having come to be filed, hence, do not bear any mark, as, an exhibit, much less, their having come to be proved in accordance with law, they, ought to be construed to be of no legal worth or probative force. As a corollary, they do not countervail or outweigh the findings recorded by the learned trial Court and affirmed by the learned first Appellate Court qua the deposition of PW-5 Onkar Chand, the vendor being discardable or it having no evidentiary value, in, the face of his testimony acquiring a taint, arising from an on going litigation with the plaintiff/respondent. 14. Also Ex.PW4/A has been completed only at the instance of the plaintiff/respondent. Both the learned Courts below have concurrently held that the defendant/appellant was financially disempowered from defraying the entire sale consideration, for acquiring the title to his purported un- converged share recited/comprised in it, to the vendor Onkar Chand. The said concurrent findings of fact, recorded by the learned Courts below, are based on a careful and studied appreciation of the evidence, qua the said fact on record and, as such, the findings, to the extent above, do not warrant theirs being unsettled. Rather, with the discussion, aforesaid, unfolding the fact of both the DW-2 Professor Kartar Singh Saini and PW-5 Onkar Chand, liable to be disbelieved on the ground of their interestedness, from an on going legal battle of the vendor Onkar Chand with the plaintiff/respondent and lack of proof of purported receipts issued by DW-2 Professor Kartar Singh, comprising, the fact of the latter having received from the defendant/appellant, the sums of money, advanced, as, loan to him. The inevitable and forthright conclusion, hence, which spurs, is, that, too, then the findings of both the learned Courts below of the defendant/appellant being financially disempowered at the stage contemporaneous to the execution of Ex.PW4/A, hence his having not paid his share of sale consideration to the vendor acquires corroborative force. Therefore, it can be concluded that it does not require any interference. 15. Therefore, it can be concluded that it does not require any interference. 15. In the context above, the completion of Ex.PW4/A at the instance of the plaintiff/respondent obviously gives leeway to the conclusion, that, a valid, binding and legal concluded contract erupted inter-se the vendor and the plaintiff/respondent. 16. Before departing, it is also worthwhile to refer to the fact of both the learned Courts below having inappropriately applied to the facts at hand, the provisions of Section 82 of the Indian Trusts Act, in, as much as, it having concluded that at the stage, contemporaneous to the execution of Ex.PW4/A, the provisions of Section 82, while having come to be repealed by the enactment of the Benami Transactions (Prohibition) Act, 1988 held no legal sway then, too, in as much as in the year 1984 or do not hold the field even at the stage of execution of Ex.PW4/A in the year 1984. Consequently, benefit, if any, of Section 82, as bestowed in favour of the plaintiff/respondent, in, as much as, the learned trial Court holding that even, if, the benefit of the part of the suit property recited to be sold under Ex.PW4/A in favour of the defendant/appellant, as a matter of fact was ultimately conferred upon the defendant/appellant, constituted the plaintiff to be, to, that extent the purported benamidar of the defendant/appellant, yet, in the face of the beneficiary provisions of Section 82 of the Indian Trusts Act, envisaging such purported benamidar, concluded to be, holding such portion of the suit property in trust for the real owner, is, rendered open to impeachment, on, the score of these provisions having come to be repealed in the year 1988, hence, even at the stage of institution of the suit as well on the date of execution of sale deed, Ex.PW4/A then holding, no legal sway. However, the aforesaid submission necessitates its being rejected straightway. With aplomb, it can be concluded, that, the time of applicability of a statute, is, to be reckoned from the date, when the purported action in consonance thereto has been completed. When the relevant provisions of the statute were in force or in vogue for legalizing the factum of the portion of or the share of the defendant, in the suit property, purportedly conveyed in favour of the plaintiff/respondents, in, Ex.PW4/A, hence, provisions of Section 82 of the Indian Trust Act have been attracted. When the relevant provisions of the statute were in force or in vogue for legalizing the factum of the portion of or the share of the defendant, in the suit property, purportedly conveyed in favour of the plaintiff/respondents, in, Ex.PW4/A, hence, provisions of Section 82 of the Indian Trust Act have been attracted. The said provisions were in force then. If they then held the field or commanded legal sway at the relevant and appropriate stage, the legal clothing or legal cover provided to Ex.PW4/A cannot be divested. 17. In coming to the above conclusion, I am supported by the judgment of the Apex Court, reported in (1996)4 SCC 490 , Heirs of Vrajlal J. Ganatra versus Heirs of Parshottam S.Shah wherein it has been held that the prohibitive provisions engrafted in the Benami Transactions (Prohibition) Act, 1988 would have prospective effect and not retrospective effect. Analogically, on the strength thereto, it can be emphatically and conclusively held that the protective cover lent or the legality of the sale deed comprised in Ex.PW4/A, in, as much as, it being construable to be within the legal domain of the protective provisions of Section 82 of the Indian Trusts Act, can not be taken away. Even otherwise, as, unraveled by the discussion aforesaid, on, contract of sale qua the suit property comprised in Ex.PW4/A having been completed and concluded at the instance of the respondent/plaintiff, besides, when the entire sale consideration having been defrayed by the plaintiff/respondent to the vendor, the unflinching and clinching deduction which ensues is that the plaintiff/respondent is to be held to be the owner in possession of the suit property, dehors the provisions of any of the Act, as, referred to hereinabove. Lastly, in sequel thereto, both the substantial questions of law are answered against the defendant/appellant and in favour of the plaintiff/respondent. 18. In view of above discussion, I find no merit in this appeal which is accordingly dismissed and the judgment and decree of the learned Courts below are affirmed. No order as to costs.