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2015 DIGILAW 208 (ORI)

Bishnupriya Paikaray v. Rashmirekha Paikaray

2015-03-27

D.DASH

body2015
JUDGMENT This appeal has been filed against an order passed by the learned Civil Judge (Senior Division), Bhubaneswar in I.A. No. 304 of 2014 arising out of C.S. No. 6727 of 2014 in the matter of petition under Section 39 Rules 1 and 2 of the Code of Civil Procedure. By the said order the Court below has passed an order directing the parties not to change the nature and character of the suit properties except those under schedule-D which are movables and maintain status quo in respect of those immovable properties described in other schedules. 2.Facts necessary for disposal of this appeal are as under:- The respondent as the plaintiff filed the suit for partition of the properties described in Schedule-A, A-1, A-2, A-3, A-3(i), B,C and D properties, she has claimed 1/3rd sharer in all those properties. The prayer is also for rendition of the account towards income and expenditure of joint family properties since the time death of Rabindra Kumar Paikaray, the husband of appellant no. 1 and father of the appellant no. 2 and respondent no. 2. Rabindra Kumar Paikaray died in the year 2007 leaving behind his widow and two daughters as stated above. The properties described in schedule-A, A-2, A-3 and A-3(i) are standing recorded in his name. The property under schedule-B standing in the name of appellant no. 2 is said to have been acquired by Rabindra Paikray during his life time. Similarly, schedule-C lands standing recorded in the name of appellant no. 2 are said to have been purchased from out of the joint family income. As already stated, the schedule-D describes movables of the family. It has been pleaded in the plaint that the appellants being in control of the properties involved in the suit are misappropriating rent of around R.s 1,99,000/- per month, which is derived from out of those properties besides agricultural income of a sum of Rs. 1,30,000/- per month, which is coming as income from the user of these properties. It is further stated that a sum of Rs. 2,02,33,600/- received on account of land acquisition compensation from the year 2010 to 2014 has also been misappropriated by them and the accounts towards the same has not been rendered. In view of above, the respondent thus being deprived of her legitimate share and a victim of the misappropriation at the hands of appellants has filed the suit. 2,02,33,600/- received on account of land acquisition compensation from the year 2010 to 2014 has also been misappropriated by them and the accounts towards the same has not been rendered. In view of above, the respondent thus being deprived of her legitimate share and a victim of the misappropriation at the hands of appellants has filed the suit. 3.The appellants as the defendants deny the fact the Schedule-B, C and D properties have been acquired from joint family funds. It is stated that the plaintiff, who got married in the year 2009 was paid dowry and thus the compensation received on account of land acquisition was spent for that, it is stated that they are maintaining themselves from out of the income that they are receiving from flats by letting out those to different persons. Specifically, it is stated that Rabindra Kumar Paikaray had incurred family loan and to meet the expenses in his funeral ceremony loan to the tune of Rs. 30,00,000/- have been taken from the bank over and above some hand loans. It is stated that schedule B properties are the absolute properties of defendant no.1 whereas schedule C property is the absolute property of defendant no. 2. Thus, it is stated that the plaintiff cannot lay any claim in respect of those properties in view of the provision of Section 4 of the Benami Transaction (Protection) Act 1988. Schedule B is said to be the self acquired properties and absolute property of defendant no. 1 and that schedule C is the absolute property of defendant no. 2. They have denied the plaint averments with regard to the income from cultivable land through bhag tenants. However, they admit the receipt of Rs. 23,000/- per month as against the plaint assertions of Rs. 44,000/- per month towards the money earned through schedule A/1 properties. Similarly, it is stated that Rs. 18,000/- per month is earned from Schedule B property and Rs. 60,000/- is being earned per month from schedule A-3(i) properties against the plaint allegation of Rs. 50,000/- and Rs. 1,00,000/- respectively. The income from the schedule D property is denied and 1/3rd share of the respondents over schedule A, A-1, A-2 and A-3(i) stands admitted. Importantly enough, despite of the fact that the property under schedule C is claimed by the defendant no. 50,000/- and Rs. 1,00,000/- respectively. The income from the schedule D property is denied and 1/3rd share of the respondents over schedule A, A-1, A-2 and A-3(i) stands admitted. Importantly enough, despite of the fact that the property under schedule C is claimed by the defendant no. 2 as her own, she has ultimately expressed her consent for partition of that property with allotment of 1/3rd share to each. So, admittedly there is no dispute with regard to the partition of schedule A property and also those finding mention in schedule C. 4.The trial Court on consideration of rival fact and on going through the documents as placed has directed the parties not to change the nature and character of the suit land and maintain the status quo of the same except schedule D property till disposal of the suit. 5.Learned counsel for the appellants submits that such order of status quo ought to have been passed in the case in respect of the schedule properties. However, without going to the details of the merit, he confines his submission for grant of permission to appellant no. 1 to sell plot nos. 362 and 363 of Mauza Paika Nagar and Plot No. 1481, 2355, 2370, 5108 Mauza-Baramunda from out of the land described in schedule B on any such terms and conditions as deemed fit and proper since the amount is badly necessary for the purpose of performing the marriage of defendant no. 2. He submits that though in the order of the trial Court the appellant has not been specifically restrained from alienating any portion of the suit property, however, when status quo is directed to be maintained, the appellants so feel it necessary that it be clarified.. Learned counsel for the respondents vehemently objects the move in view of the specific submission of the learned counsel for the appellants. 6.In view of the above submission, this Court feels not to enter into the arena of judging the sustainability of the order of status quo in respect of all the properties other than the plots as indicated in the aforesaid paragraph-5 as per the submission of the learned counsel for the appellants. Admittedly, the said properties are standing recorded in the name of the appellant no. 1 the mother of the parties. Admittedly, the said properties are standing recorded in the name of the appellant no. 1 the mother of the parties. It is the case of the plaintiff-respondent that those were purchased by their father in the name of their mother and as such it is claimed to be the property of the father being available for partition amongst the parties. As provided in Section 4 of the Benami Transactions (Prohibition) Act, 1988 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 real owner of such property. As provided in Section 3 of the Act, the prohibition has been brought that no person shall.. enter into any benami transaction. However, sub-Section (2) of the said Section 3 creates exception that the property purchased by any person in the name of his wife or unmarried daughter shall be presumed, unless the contrary is proved, to have been so purchased for the benefit of the wife or the unmarried daughter. In other words, such kind of transactions have been kept out of the purview of benami transaction till proved to the contrary. The basic element of benami transaction that the property must not have been purchased for the benefit of the person who is shown as the purchaser has been slaughtered by such Clause (a) of Sub-Section (2) of Section 3 of the Act. The property purchased would be presumed to be in order to benefit of the wife or unmarried daughter. Thus, the initial presumption remains that those are the property of wife or unmarried daughter as has been purchased it in their name. 7.The question now vexes as to what facts are required to be proved to hold to the contrary. In my considered view the source of payment of consideration has no significance because it says that it has been purchased by the husband in the name of wife or by the father in the name of unmarried daughter as the case may be. In my considered view the source of payment of consideration has no significance because it says that it has been purchased by the husband in the name of wife or by the father in the name of unmarried daughter as the case may be. The custody of the original document is also not a significant factor to be considered when in spite of the admitted case that the property has been purchased by the husband or father in the name of wife and unmarried daughter, the law presumes those to have been purchased for the benefit of the purchasers, i.e., wife and unmarried daughter. Similarly, the enjoyment of property with such relationship does not generally stand for consideration, save and except …… under some peculiar circumstance. So, it all depends upon the intention behind such purchase. There cannot be any direct proof of intention. It has to be gathered from the attending circumstances prevailing shortly prior to the transaction and thereafter till the dispute; the intention of the person who has purchased and the intention of the persons in whose name those have been purchased. In my considered view also the enjoyment of the property by all the members of the family has got very little to do in support of the proof to the contrary as stated in Clause (a) of Sub-Section (2) of Section 3 of the Act. Most important factor in the case is the dealing of the property by the persons in whose name the property has been purchased; that they abandoned their right from the very beginning as such purchaser and have never dealt with the property as such and that they waived their right, whatsoever, which have to be gathered from their conduct all through. Also by some act or other or conscious omission leading to strong inference as regards their expression to have no such exclusive right over the property so purchased in their name would stand for consideration and that whenever such occasion has arisen, they have not stacked their independent claim. All these are matters of evidence and only on being led during trial would stand for appropriate consideration for a finding in the suit. 7.Now in view of the statutory presumption, on the basis of the very case of the respondent as projected in the plaint and accepting in toto, the property standing in the name of the appellant nos. All these are matters of evidence and only on being led during trial would stand for appropriate consideration for a finding in the suit. 7.Now in view of the statutory presumption, on the basis of the very case of the respondent as projected in the plaint and accepting in toto, the property standing in the name of the appellant nos. 1 and 2 are to be viewed as their property to have been purchased for their benefit even accepting that it was with the money provided by the father of the respondent and appellant no. 2. The finding to the contrary may only be rendered that it was not to benefit them ultimately at the end of the suit while rendering the final decision and not before that. So, prima facie case for the temporary injunction as prayed for by the respondent with regard to those items of the properties described in the plaint cannot be said to be existing in favour of the respondent. The Court below has committed an error of law to have held so in respect of those properties without being alive to the provisions of Benami Transactions (Prohibition) Act, 1988 as discussed above and without any such discussion giving mind to it. Be that as it may, considering the submission of the learned counsel for the appellants confining to few plots of lands as indicated, this Court is led to hold that the prima facie case for temporary injunction as prayed for by the respondent does not exists only in respect of those plots of land. Learned counsel for the appellants submitted that in case appellant no. 1 sells those plots of land in order to meet the immediate marriage expenses of appellant no. 2 she has no objection to place necessary accounts in Court and other details of the transaction, if any. In fact the very legislative intention behind such statutory presumption as discussed above in my considered opinion stands for such situations which have prevailed upon for engrafting the said provision looking at the ground realities that the properties so purchased shall till contrary is proved, be treated as such which is for the purpose of safe guarding the interest of such persons in whose name it is purchased to meet these exigencies. For the aforesaid discussion the order impugned in this appeal needs modification to the extent that the order of status quo as passed by the Court below would no more hold the field and be operative in respect of the lands described in para 5 of this judgment further taking into account the submission of learned counsel for the appellants. Accordingly it is ordered. 8.The appeal thus stands allowed in part to the extent as indicated above. However, in the facts and circumstances, no order is passed as to the costs. Appeal allowed in part.