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2015 DIGILAW 201 (ORI)

K. Kusumamba v. P. Sasibhushana Rao

2015-03-25

D.DASH

body2015
JUDGMENT This appeal has been filed challenging the judgment and decree passed by the learned Subordinate Judge, Nawarangpur (as it was then) , in Title Appeal No. 4/1992 confirming the judgment and decree passed by the learned Addl. Munsif, Nawarangpur in Title Suit No. 16/1989. By the said judgment the suit filed by the present appellant as the plaintiff against the respondent/defendant, has been dismissed. 2.For the shake of convenience, for clarity and in order to avoid confusion the parties herein after have been referred to as they have been arraigned in the Court below. 3.The plaintiffs suit is for partition of a house standing over a piece of land measuring an area of Ac. 0.015 decimals in Nawarangpur Town. She has claimed 1/6th share over the same. One V. Krishna Murty has two sons namely V. Jagannath Swami and V. Laxman Swami and four daughter namely Damayanti and three other through his first wife Mani Kayama. Damayanti married in a village in the State of Andhara Pradesh. In the year 1956, she purchased the suit house by registered sale deed and started staying there having returned from her earlier place of stay. It is stated that after death of the first wife, V. Krishna Murty kept V. Panyabati (Defendant No. 5) with him for which ultimately they were driven out by his sons and they had to take shelter in the house of Damayanti. The shelter was given by Damayanti with an understanding that they would leave the house after arranging an accommodation or on getting share from their sons. It is the further case that though several times amicable settlement was attempted to resolve the dispute between V. Krishna Murty on one hand and his sons on other, those did not fructify. After the death of Damayanti, the plaintiff being her daughter with other brothers and sisters allowed V. Krishna Murty to live in the house like that. In this way the dispute between V. Krishna Murty and his sons presorted for long time and V. Krishna Murty died. So, again request came from the side of defendant no. 5 to allow her to stay in the house. But despite of the fact that the defendant no. 5 became capable of earning in course of time and started petty business, she did not show any interest to leave the house. So, again request came from the side of defendant no. 5 to allow her to stay in the house. But despite of the fact that the defendant no. 5 became capable of earning in course of time and started petty business, she did not show any interest to leave the house. Other co-shareds also did not take any interest in that regard. So ultimately she filed the suit for eviction of defendant no. 5 also for partition. 4.The defendant nos. 1 to 4 did not contest and it is only the defendant. 5 who contested the suit. She claimed her status to be the legally married wife of V. Krishna Murty after the death of first wife. It is her case that they have been stayed as such as husband and wife for quite a long length of time and have accepted as such by the members of their community and the society and also by the children of V. Krishna Murty through first wife. It is her case that V. Krishna Murty acquired the suit house. V. Krishna Murty and his sons were having business and were affluent enough. For their joint family business they acquired properties at different places, but this particular suit property though have been acquired by them, the document was created in the name of Damayanti to avoid payment of tax. It is stated that Damayanti had no means to purchase the property. It is also stated that as per family arrangement the suit house has been allotted to V. Krishna Murty whereas house in other places have been given to his sons. The document prepared for the purpose is not traceable in view of the reason that the person in whose custody it was there is no more and thereafter other male members of the family also died in quick succession. The defendant no. 5 claims to be in possession of the suit house since 1956 as its owner and therefore an alternative case has also been set up as regards acquisition of title by adverse possession. 5.The trial Curt framed as many as 11 issues and having taken up issue no. 2 which is vital one i.e. whether Damayanti the mother of the plaintiff and defendant nos. 1 to 4 purchased the said house or not, the finding has been rendered in favour of the defendant no. 5.The trial Curt framed as many as 11 issues and having taken up issue no. 2 which is vital one i.e. whether Damayanti the mother of the plaintiff and defendant nos. 1 to 4 purchased the said house or not, the finding has been rendered in favour of the defendant no. 5 that the suit house in the name of Damayanti, the mother of plaintiff is a Benami Transaction and the suit house were actually purchased by V. Krushna Mruty and his sons in the name of Damayanti who is just a name-lender. Next the alternative case set up by defendant no. 5 as regards perfection of title by adverse possession has also been answered in favour of defendant no. 5 that she has acquired the right title and interest over the suit house by adverse possession. Lastly having gone to the address the issue on the maintainability of the suit in view of the provision of Sec.23 of Hindu Succession Act, that has also been answered against the plaintiff holding that the plaintiff has no right to claim partition. The lower appellate Court has concurred with all the findings as stated above. 6. This appeal has been admitted for consideration of substantial questions of law as indicated in para-2 under heading A,B and C of the memorandum of appeal which are as under; i) Whether …. Or the defendant-respondents that the acquisition of the suit property by the mother of the plaintiff by registered sale deed in the year 1956 is a Benami Transaction can be allowed in the suit in view of the specific prohibition contained in Sec.4(2) of Benami Transactin (Prohibition) Act, 1988; ii) Whether the claim of adverse possession of the defendant –respondents is sustainable in view of the fact that admittedly possession was permissive and hence possession for any number of year cannot make the same adverse. iii) Whether the bar contained U/s 23 of the Hindu Succession Act is available by another female heir when admittedly the female heirs have no objection to the plaintiff-appellants prayer for partition; 7.Learned counsel for the appellant submits that the Courts below have completely failed to take note of the provisions of statutory enactment i.e. the Benami Transaction (Prohibition) Act, 1988 coming into force prior to the institution of the suit. So, she contends that the matter was required to be examined in a complete different angle. So, she contends that the matter was required to be examined in a complete different angle. In this connection he has placed the provision of Sec. 4 of the Act. It is her contention that the case being examined keeping in view the aforesaid provision of law which has been lost sight of and the evidence being properly appreciated, the finding that the purchase of the suit house was a Benami Transaction, simply in the name of Damayanti, the mother of the plaintiff has to be set at naught. The Courts below if would have applied the law as above, the finding on that score would have been the other way round. 8.Learned counsel for the respondent no. 5 submits that the provision of the said Act would not apply to the case in hand as the transaction in the case had taken place in the year 1956, more than 30 years prior to coming into force of the said enactment. So, he contends that both the Courts below having made proper analysis of the evidence at length and making their cumulative assessment having found on facts that all those circumstances right from the time of transaction although favour a Bnami Transaction, the same is not liable to be disturbed in this second appeal. According to him the factual findings by both the Courts below have been rendered that despite of the purchase of the properties in the name of Damayanti, the mother of the plaintiffs, the original sale deed was not in her custody; she was not in possession of the suit house, which though has been sought to be explained away in a particular way has not been rightly accepted and also the dealings of the parties with the said property which being viewed together clearly establish a case of Benami Transaction, that Damayanti was the ostensible owner. 10.The present suit has been instituted on 16.3.1989 and the defendant no. 5 has filed her written statement on 1.7.1989. The Benami Transaction (Prohibition) Act, 1988 has come into force w.e.f 5th September 1988, so far as the provision of Sec. 3,5 or 8 are concerned and the rest of the provisions coming into force on and from 19.5.1988. 10.The present suit has been instituted on 16.3.1989 and the defendant no. 5 has filed her written statement on 1.7.1989. The Benami Transaction (Prohibition) Act, 1988 has come into force w.e.f 5th September 1988, so far as the provision of Sec. 3,5 or 8 are concerned and the rest of the provisions coming into force on and from 19.5.1988. Now so far as the prohibition contained in Sub-Section -1 & 2 of Sec. 4 of the Act is concerned, the law has been finally set at rest in case of R.Rajagopal Reddy Vrs. Padmini Chandrasekharan AIR 1996 SC 238 , as also in case of Smt. Rebati Devi Vrs. Ram Dutt and another; AIR 1998 SC 310 , that what are the principles that define the parameters of prohibition to take a plea or defence of banami. So in the present case the defence of benami having been taken in the written statement filed on 1.7.89, and transaction coming into being in the year 1956, the application of the relevant provision of the Act stands for decision in view of the above authoritative pronouncement and consequentially, depending upon the ultimate finding on that issue, the next issue which rests on the alternative case needs to be accordingly decided and so also the other one. 11.Perusal of the judgments of the Courts below goes to show that such above important legal provisions have not at all been kept in mind in deciding the issue of Benami Transaction. The decision on the said issue has been rendered by the Courts below being not alive to the said statutory provisions coming into force by said enactment and considering its impact that it would have on the decision. The decision on the aforesaid issue No. 2 has definite impact over the decision on the other issues. The above aspect which have been lost sight of by the Courts below, perhaps being not placed argued. In that view of matter, the concurrent findings of the Court below are liable to be set aside and so also the judgments and decrees passed by the Courts below. The suit is required to be decided afresh by the trial Court rendering decision on all the issues on the existing evidence upon hearing the arguments, keeping in view the relevant provision of law as stated above. 10.Resultantly, the appeal stands allowed and in the circumstances without cost. The suit is required to be decided afresh by the trial Court rendering decision on all the issues on the existing evidence upon hearing the arguments, keeping in view the relevant provision of law as stated above. 10.Resultantly, the appeal stands allowed and in the circumstances without cost. The judgments and decrees of the Courts below are hereby set aside and the suit is remanded to the Court of Civil Judge (Jr. Divisin), Nabarangpur for disposal according to law as aforesaid. Keeping in view, the age of the litigation, the Court below is directed to dispose of the same as per law within a period of three months from the date of communication of order with LCR which exercise be taken up by the Registry forthwith. Appeal allowed.