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2014 DIGILAW 712 (CAL)

Susama Rana v. Sephali Rana

2014-08-01

TAPAN KUMAR DUTT

body2014
JUDGMENT : Tapan Kumar Dutt, J. 1. This Court has heard the learned Advocates for the respective parties and has considered the relevant materials on record. 2. The facts of the case, briefly, are as follows:- 3. One Sudhangshu Sekhar Rana filed Title Suit No. 72 of 1992 against one Sibsankar Rana (predecessor-in-interest of the appellants) and the respondent nos. 4 and 5 (defendant nos. 2 and 3 respectively). Such suit was placed before the learned 1st Munsifs Court at Diamond Harbour. In such suit the original plaintiff prayed for a decree for declaration that the said plaintiff has right, title and interest and possession in the suit property and the defendants do not have any such right, title and interest in the suit property. The original plaintiff also prayed for a decree for permanent injunction, inter-alia, restraining the defendants from dispossessing the plaintiff from the suit property. In short, the case of the plaintiff was that the plaintiff had deputed his wife, the defendant no. 3, to purchase the suit properties in the name of the plaintiff and the plaintiff provided the money for the same but sometime in the year 1992 the plaintiff came to learn that the deeds by which the suit properties were purchased have recorded the names of the defendant nos. 1 and 2 or the defendant no. 1 alone or the defendant no. 2 alone as purchasers of the suit properties and the said deeds were in between the period 1968 to 1985. The plaintiffs case was that he had reposed complete faith on the defendant no. 3, his wife, but committing a breach of trust and/or practising fraud upon the plaintiff, the said deeds have shown the defendants, either the defendant no. 1 or the defendant no. 2 or both of them together, as purchasers. According to the original plaintiff, the defendant nos. 1 and 2 do not have any right, title and interest in the said properties as the purchase money was provided by the plaintiff and the properties were purchased at points of time when the said defendant nos. 1 and 2 were minors and the said minors had no source of income. The original plaintiff had also pleaded that he was also occupying the suit properties by way of adverse possession openly and adversely to all concerned. 4. The defendant no. 1 and 2 were minors and the said minors had no source of income. The original plaintiff had also pleaded that he was also occupying the suit properties by way of adverse possession openly and adversely to all concerned. 4. The defendant no. 1 filed a written statement and contested the said suit by denying the material allegations made in the plaint and according to the said defendant, the suit is barred under the provisions of Benami Transactions (Prohibition) Act, 1988 and the said property was purchased by the said defendant from the amount of money that the said defendant was given at the time of certain ceremony and/or ritual when the said defendant was an infant. According to the defendant no. 1 whose heirs are now the appellants, the plaintiff never purchased the suit property. It appears that the defendant nos. 2 and 3 filed a written statement separately and the said defendant nos. 2 and 3 stated therein that due to the ailing health of the original plaintiff and considering the interest of the defendants in the suit, the properties were purchased in the name of the defendant nos. 1 and/or 2 through different deeds. 5. The said suit came up for hearing and the learned Trial Court by judgment and decree dated 28th June, 1995 dismissed the said suit upon holding that the plaintiffs in the said suit totally failed to prove their case. It may be recorded here that during the pendency of the suit the original plaintiff had died and the present respondent nos. 1, 2 and 3, excepting the defendant 1, were substituted in place and stead of the original plaintiff and the defendant nos. 2 and 3 were transposed to the category of the plaintiffs. Thus, the defendant no. 1 remained to be the sole defendant in the suit. The learned Trial Court found that the plaintiff has not pleaded any case of benami transaction and has also not proved any benami transaction in the name of his two sons. The learned Trial Court took note of the facts that the defendant nos. 2 and 3 were transposed to the category of the plaintiffs but after such transposition, no amendment of the plaint was done and, therefore, the learned Trial Court raised a question as to how the plaintiffs subsequently brought on record could prove the original plaintiffs case. The learned Trial Court took note of the facts that the defendant nos. 2 and 3 were transposed to the category of the plaintiffs but after such transposition, no amendment of the plaint was done and, therefore, the learned Trial Court raised a question as to how the plaintiffs subsequently brought on record could prove the original plaintiffs case. In any event, the learned Trial Court found that there is a total absence of pleading with regard to the benami transaction in the plaint and the plaintiffs have also failed to prove their case, and the learned Trial Court dismissed the suit. 6. The plaintiffs filed Title Appeal No. 6 of 1996 which was placed before the learned Civil Judge (Senior Division), Diamond Harbour and the learned First Appellate Court allowed the said Title Appeal and set aside the judgment and decree passed by the learned Trial Court. The learned First Appellate Court declared the plaintiffs title over the suit property and also declared that the defendant no. 1 did not have any right, title and interest over the suit property by virtue of the deeds mentioned in the plaint and the learned First Appellate Court granted a decree for permanent injunction against the defendant no. 1. 7. It appears from a perusal of the impugned judgment of the learned First Appellate Court that the learned First Appellate Court was of the view that the purchase money was provided by the plaintiff, the custody of the documents concerned were with the plaintiff and the possession of the property was also in favour of the plaintiff. The learned First Appellate Court found that the defendants have failed to prove that they had any source of money to purchase the properties in dispute. The learned First Appellate Court also found that there was a fiduciary relationship between the plaintiff and the defendant nos. 1 and 2. The learned First Appellate Court was of the view that since the consideration money was provided by the plaintiff, the documents of title were in custody of the plaintiff and the plaintiff was in possession of the suit property, the suit should succeed as there was a fiduciary relationship between the plaintiff and the defendant nos. 1 and 2. 8. It appears that the original defendant no. 1 and 2. 8. It appears that the original defendant no. 1 died during the proceedings and his heirs and legal representatives, the present appellants, have filed the present Second Appeal challenging the judgment and decree passed by the learned First Appellate Court. It appears that the present Second Appeal was admitted for hearing by Order dated 24th December, 2003 passed by an Hon’ble Division Bench of this Court on the following grounds:- "1. Whether in the facts and circumstances of the case and the pleadings made out the suit was hit by Section 4 of the Benami Transactions (Prohibition) Act, 1988. 2. Whether on the death of the original plaintiff being the father of the parties who are defendants in the suit had inherited the property on the death of the father and some of them could be transposed as plaintiff and could any decree be passed against the rest who are co-sharers particularly when one of the co-sharers was already a plaintiff." 9. The learned Advocate appearing on behalf of the appellants has submitted that reading the plaint would make it amply clear that no case of any benami transaction was ever made out by the plaintiff. He submitted that the plaintiffs case was very simple. The plaintiffs case was that the plaintiffs had reposed absolute faith in the defendant no. 3 ( Plaintiffs wife) for purchasing the properties in dispute but the defendant no. 3 in total breach of trust and practising fraud upon the plaintiff purchased the said properties in the name of the defendant no. 1 and/or defendant no. 2. He also drew the attention of this Court to the fact that the plaintiff had also pleaded that he has acquired title by way of adverse possession. He submitted that since the plaintiff had pleaded that he acquired title by adverse possession against the defendants in the suit, the plaintiff had clearly admitted the title of the defendant in the suit particularly, the defendant nos. 1 and 2. He submitted that since the plaintiff had pleaded that he acquired title by adverse possession against the defendants in the suit, the plaintiff had clearly admitted the title of the defendant in the suit particularly, the defendant nos. 1 and 2. The said learned Advocate cited a judgment reported at 2007(6) SCC 100 (Binapani Paul v. Pratima Ghosh And Others) and drew the attention of this Court to paragraph 39 of the said reports wherein the Hon’ble Supreme Court was pleased to observe that if ouster is to be pleaded, the title has to be acknowledged and once such plea is taken, irrespective of the fact, as to whether any other plea is raised or not, conduct of the parties would be material. The Hon’ble Court was further pleased to observe that if a plea of ouster is not established, a fortiori the title of other co-sharers must be held to have been accepted. The said learned Advocate submitted after also placing paragraph 41 of the said reports in this regard that the plaintiff could not have turned around and challenged the title of the defendants in the suit. The said learned Advocate submitted that the plaintiffs clearly failed to prove the case of the adverse possession and none of the Courts below could find any thing in favour of the plaintiff with regard to the plea of adverse possession. Thus, according to the said learned Advocate, the title of the defendant no. 1 has to be accepted by the plaintiffs. 10. The said learned Advocate also submitted that in the facts and circumstances of the instant case, the Benami Transactions (Prohibition) Act, 1988 cannot be applied but if it is applied for the sake of argument then in that event the Section 4(1) of the said Act would be a clear bar to the filing of the suit itself. The said learned Advocate submitted that the expression Benami Transaction has been defined in the said Act and looking in the reported decisions of various Courts, delivered at different points of time, it will appear that one of the most important factors while deciding the question of benami is that the motive of the parties will have to be considered. The said learned Advocate submitted that the expression Benami Transaction has been defined in the said Act and looking in the reported decisions of various Courts, delivered at different points of time, it will appear that one of the most important factors while deciding the question of benami is that the motive of the parties will have to be considered. The said learned Advocate submitted that reading the pleadings of the plaintiff as a whole it will appear that no such motive was there on the part of the plaintiff to purchase the properties in benami of any person. The plaintiffs case was clear - the plaintiff intended to be the owner of all the properties purchased and there was no question of any benami at all. 11. The said learned Advocate cited a decision reported at 2004 (7) SCC 233 (Valliammal v. Subramaniam and Others) and referred to paragraph 13 and 14 of the said reports. It appears that the Hon’ble Court was pleased to indicate the circumstances which should be taken into consideration while considering the question of benami. In paragraph 14 of the said reports the Hon’ble Court was pleased to observe that the source from where the purchase money came and the motive why the property was purchased benami are by far the most important tests for determining whether the sale standing in the name of one person, is in reality for the benefit of another. By citing the decision the said learned Advocate submitted that the source of purchase money can not be the sole consideration. The said learned Advocate contended that the motive as to why the property was being purchased in benami shall also have to be considered simultaneously but in the facts and circumstances of the instant case the plaintiff himself did not plead any case of benami and, therefore, this Court cannot proceed on the basis that there was a case of benami pleaded by the plaintiff. 12. The said learned Advocate cited another decision reported at (2007) 6 SCC 100 (Binapani Paul v. Pratima Ghosh and Others) and referred to paragraph 8 of the said reports and submitted that reading the said paragraph would make it clear that contribution of purchase money is only one of the factors for proving benami transaction but intention also plays a significant role in relation thereto. The said learned Advocate submitted by also referring to paragraph 26 and 28 of the said reports that the motive governing the action in bringing about the transaction has definitely to be considered while considering the question of benami. The said learned Advocate laid much emphasis on paragraph 29 of the said reports wherein the Hon’ble Court was pleased to hold that source of money had never been the sole consideration and it is merely one of the relevant considerations but not determinative in character. 13. The said learned Advocate also cited another decision reported at 2010 (1) CHN (Pratima Paul and Others v. Rupa Paul and Others) 15 and referred to paragraph 13 of the said reports wherein an Hon’ble Division Bench of this Court was also pleased to consider the circumstances which should be taken into consideration for finding out whether the particular transaction is really a benami transaction. It appears that the Hon’ble Court was pleased to hold in the said paragraph that the true character of the transaction is governed by the intention of the person who has contributed the purchase money and the question as to what his intention was has to be decided on the basis of surrounding circumstances, the relationship of the parties, the motive governing their action in bringing about the transaction and their subsequent conduct. The said learned Advocate again submitted that in the facts and circumstances of the instant case it cannot be said by any stretch of imagination that the plaintiff had entered into any benami transaction. 14. The said learned Advocate also cited a decision reported at 2011 (8) SCC 497 (Central Board of Secondary Education and another v. Aditya Bandopadhyay and others). It appears from paragraph 39 of the said reports that the Hon’ble Court was pleased to observe that the term fiduciary refers to a person having a duty to act for the benefit of another, showing good faith and candour, where such other person reposes trust and special confidence in the person owing or discharging the duty. It appears from paragraph 39 of the said reports that the Hon’ble Court was pleased to observe that the term fiduciary refers to a person having a duty to act for the benefit of another, showing good faith and candour, where such other person reposes trust and special confidence in the person owing or discharging the duty. In the said paragraph the Hon’ble Court was also pleased to observe that the term fiduciary relationship is used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transactions and the term also refers to a person who holds a thing in trust for another (Beneficiary). The Hon’ble Court was pleased to observe that the fiduciary is expected to act in confidence and for the benefit and advantage of the beneficiary and use good faith and fairness in dealing with the beneficiary or the things belonging to the beneficiary. 15. The said learned Advocate submitted that there is no dispute with regard to the fact that the defendant nos. 1 and 2 were minors at the time when the transactions took place and the plaintiff was their father and, therefore, the plaintiff was duty bound to look after the defendant nos. 1 and 2 and act for the benefit of the defendant nos. 1 and 2. The said learned Advocate submitted that the original plaintiff could not be permitted to turn around and take a stand against the defendant nos. 1 and 2 particularly, when the plaintiff has pleaded adverse possession. 16. The said learned Advocate submitted that the learned First Appellate Court was in error in only taking into consideration the source of purchase money, the possession of the title deeds and the possession of the property without considering the motive of the parties. The said learned Advocate also submitted that the learned First Appellate Court wrongly placed the burden of proof upon the defendant no. 1 to prove that the defendant no. 1 had sufficient money to purchase some of the suit properties. The said learned Advocate submitted that it was for the plaintiff to prove his own case. The said learned Advocate also submitted that the learned First Appellate Court wrongly placed the burden of proof upon the defendant no. 1 to prove that the defendant no. 1 had sufficient money to purchase some of the suit properties. The said learned Advocate submitted that it was for the plaintiff to prove his own case. Citing one of the judgments, as already indicated above, the said learned Advocate submitted that until and unless the plaintiff had succeeded in proving the motive for entering into the Benami Transaction the onus could not have been shifted upon the defendant to prove the source of purchase money. The said learned Advocate submitted that the learned Trial Court rightly dismissed the suit but the learned First Appellate Court was not correct in allowing the plaintiffs suit. 17. The learned Advocate appearing on behalf of the plaintiffs/respondents submitted that upon reading of the plaint, one can come to the conclusion that a kind of benami has been pleaded as it would appear that the deeds stand either in the name of the defendant no. 1 and/or the defendant no. 2 but as there has been fiduciary relationship between the parties, the provision of Section 4(1) of the said Act of 1988 cannot apply in the instant case. The said learned Advocate laid much emphasis on the fact that the learned First Appellate Court has found that the consideration money was provided by the original plaintiff, the documents of title were in possession of the original plaintiff and the possession of the suit property was partly with the plaintiff at least. The said learned Advocate submitted that the learned Trial Court did not discuss the question as to who had provided the purchase money but the learned First Appellate Court has done so, and, therefore, the learned First Appellate Court has proceeded in the right direction. The said learned Advocate referred to Section 2(A) of the said Act of 1988 and submitted that the transactions in question were benami transaction and it was for the defendant no. 1 to prove that he had sufficient funds to purchase the properties in question. The said learned Advocate referred to Section 2(A) of the said Act of 1988 and submitted that the transactions in question were benami transaction and it was for the defendant no. 1 to prove that he had sufficient funds to purchase the properties in question. He also cited a decision reported at AIR 2008 (NOC) 889 (Calcutta) (Ramesh Goel v. Dwinderpal Singh and others), in support of his contention that the suit filed by the plaintiff was maintainable and the suit was not barred under the said Act of 1988. The said learned Advocate also submitted that he relies upon an unreported judgment dated 27th April, 2012 of the Hon’ble Supreme Court of India in Civil Appeal No. 6645 of 2003 and the said learned Advocate by submitting a copy of such decision referred to paragraph 22 of the said decision wherein the expression fiduciary capacity was considered by the Hon’ble Court. There cannot be any dispute with regard to the principles of law laid down by the Hon’ble Supreme Court in the said decision. There is also no dispute with regard to the fact that the parties in the instant case also had fiduciary relationship. The said learned Advocate, however, submits that of course the plaintiff wanted to purchase the properties in his own name as would appear from the plaint itself. 18. The said learned Advocate cited a decision reported at AIR 1998 S.C 310 (Srimati Rebti Devi v. Ram Dutt and another) and referred to paragraph 6 of the said reports wherein the Hon’ble Court has been pleased to observe that when both sides had adduced evidence, the question of burden of proof pales into insignificance. There cannot be any dispute with regard to such proposition of law. 19. The question in the present case is as to whether or not the provisions of The Benami Transactions (Prohibition) Act, 1988 could be applied in the facts and circumstances of the instant case. This Court is of the view that the provisions of the said Act cannot be applied in the facts and circumstances of the instant case as the original plaintiff himself did not plead benami in any manner whatsoever. The plaintiffs case was clear to the effect that the plaintiff intended to purchase the suit properties in his own name and he took the help of his wife, the defendant no. The plaintiffs case was clear to the effect that the plaintiff intended to purchase the suit properties in his own name and he took the help of his wife, the defendant no. 3, in this regard in whom the plaintiff has alleged that he reposed complete faith but the defendant no. 3 who got the purchase deeds registered in the name of plaintiffs the two sons, namely, the defendant nos. 1 and 2. Thus the case of the plaintiff was a case of breach of trust and/or fraud but it was not at all a case of benami. The expression the benami transaction as referred to by the learned Advocate for the respondents and also the learned Advocate for the appellant clearly states that it means any transaction in which the property is transferred to one person and consideration is paid or provided by any other person. This expression has come up for discussion in a number of cases some of which have been cited by the learned Advocate for the appellants as already noted above. It will appear from the reading of the said decisions that one of the most important factors to be taken into consideration is the question of motive of the parties. The source of purchase money cannot be the sole consideration and as the Hon’ble Supreme Court has held it is not a determinative factor. It has been made clear in those reports that the intention of the parties and/or the motive of the parties will have to be taken into consideration while finding the answer to the question of benami. In the instant case the plaintiff has not pleaded at all that he had any intention to enter into any benami transaction. Thus, this court is of the view that the provisions of the said Act of 1988 are not applicable to the facts and circumstances of the instant case. This is where the learned First Appellate Court has committed a mistake. The learned First Appellate Court took three things into consideration:- 1. The purchase money was provided by the plaintiff; 2. The custody of the title deeds was with the plaintiff and 3. The plaintiff was in possession of the suit properties. 20. This is where the learned First Appellate Court has committed a mistake. The learned First Appellate Court took three things into consideration:- 1. The purchase money was provided by the plaintiff; 2. The custody of the title deeds was with the plaintiff and 3. The plaintiff was in possession of the suit properties. 20. Unfortunately, the learned First Appellate Court did not consider the question of motive of the parties the purpose for which the transaction was entered into by the plaintiff and/or the intention of the parties. The learned First Appellate Court shifted the burden of proof upon the defendants to prove that the defendant no. 1 had sufficient funds to purchase some of the suit properties without satisfying itself with regard to the motive for entering into the benami transaction. The learned First Appellate Court could not have done so. It was only after being satisfied that the plaintiff had entered into the transaction with the motive of making it benami transaction, the learned First Appellate Court could have gone into the question of source of purchase money. In the said reports reported at 2010 (1) CHN 15 (Pratima Paul and others v. Rupa Paul and others) at paragraph 18 the Hon’ble Court has been pleased to observe that in order to be successful in such kind of litigation the intention to create a benami must be proved at the first instance. In the present case this was clearly not proved by the plaintiff. 21. In such circumstances, this Court is of the view that the learned First Appellate Court proceeded on a wrong basis. That apart, citing the said judgment of the Hon’ble Supreme Court reported at (2004) 7 SCC 233 (Valliammal v. Subramaniam and others), the learned Advocate for the appellants was right in his submission that since the plaintiff had pleaded adverse possession and failed to prove adverse possession the title of the defendant no. 1 cannot be now disputed. It is to be borne in mind that the learned Trial Court had already observed that even after the defendant nos. 1, 2 and 3 were transposed to the category of the plaintiffs, the plaint was not amended. This Court is of the view that the First Appellate Court was not correct in proceeding on the basis that the defendant no. 1, 2 and 3 were transposed to the category of the plaintiffs, the plaint was not amended. This Court is of the view that the First Appellate Court was not correct in proceeding on the basis that the defendant no. 1 has failed to prove the source of purchase money when the motive of any benami transaction was not at all proved by the plaintiffs. 22. In view of the discussions made above, this Court is of the view that the judgment and decree passed by the learned First Appellate Court has to be set aside and the judgment and decree passed by the learned Trial Court has to be restored as the plaintiffs have failed to prove their case. 23. In such circumstances, the present Second Appeal is disposed of by setting aside the judgment and decree passed by the learned First Appellate Court and by restoring the judgment and decree passed by the learned Trial Court. 24. There will be, however, no order as to costs. 25. Let the lower court records be sent back to the learned Court concerned. 26. Let a copy of this judgment be also communicated to the learned Court concerned. Urgent certified xerox copy of this judgment, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities. Second Appeal disposed.