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2015 DIGILAW 270 (ORI)

Anupama Mahapatra v. Tapas Kumar Mahapatra

2015-04-22

S.PANDA

body2015
JUDGMENT : S. PANDA, J. 1. This Civil Miscellaneous Petition has been filed by the petitioner challenging the order dated 31.10.2014 passed by the learned Civil Judge (Senior Division), Bargarh in C.S. No. 54/135 of 2011 rejecting an application filed to delete the property of a female Hindu not being a member of joint family as the said property was not acquired from the joint family funds. 2. The brief facts of the case are that opposite party no. 1 as plaintiff filed C.S. No. 54/135 of 2011 before the learned Civil Judge (Senior Division), Bargarh for partition along with other reliefs. The plaintiff inter alia pleaded that he and defendant nos. 1 to 12 belongs to one family and one Dhanurjaya Mahapatra is their common ancestor. Dhanurjaya died leaving behind two sons namely defendant nos. 1 and 2 (opposite party nos. 2 and 3) and one daughter defendant no. 3 (opposite party no. 4). The plaintiff and defendant nos. 4, 5 and 6 are the children of defendant no. 1 and defendant no. 12 is the wife of defendant no. 1. The petitioner is defendant no. 7. She is the wife of defendant no. 5. Defendant nos. 8, 9 and 10 are the sons of defendant no. 2 and defendant no. 11 is the wife of defendant no. 8. 3. After death of Dhanurjaya, defendant nos. 1 and 2 succeeded all his properties and possessed the same jointly with all manner of right Schedule "A" properties of the plaint are the ancestral joint family properties which were inherited from Dhanurjaya and acquired in the names of the family members from the joint family nucleus for convenience Defendant nos. 1 and 6 were looking after the family business till 2003 when the plaintiff joined them after completing his studies. Defendant nos. 1 and 2 looked after the properties in the Village - Laumunda. Defendant nos. 2 and 6 was the custodian of all the records of the joint family business and maintaining the accounts. 4. It was further pleaded that defendant no. 6 along with his wife, the petitioner, gained over defendant no. 1 and started ill-treating the plaintiff, his wife and children and defendant no. 12, mother of the plaintiff. Defendant nos. 1, 6 and 7 also misbehaved defendant nos. 4 and 5 along with their respective husbands. Subsequently, defendant no. 4. It was further pleaded that defendant no. 6 along with his wife, the petitioner, gained over defendant no. 1 and started ill-treating the plaintiff, his wife and children and defendant no. 12, mother of the plaintiff. Defendant nos. 1, 6 and 7 also misbehaved defendant nos. 4 and 5 along with their respective husbands. Subsequently, defendant no. 6 forbid the plaintiff from working with him and captured all the joint family business like Telco Service Station and BPCL Petrol Pump, He also started diverting the joint family nucleus to accumulate properties in the name of the petitioner with the help of defendant no. 1. As such they purchased landed properties in Village Arjunda and Karalmal along with one bus, one truck, one car in the name of the petitioner and the consideration money was paid out of the joint family property. The plaintiff, his family and defendant no. 12 are living together without deriving any income and property of the joint family, whereas defendant nos. 1, 6 and 7 are enjoying all the properties and earnings of the joint family properties. Defendant no. 12 asked defendant nos. 1 and 6 to pay the plaintiff some amount from out of the income of joint family property, but they refused. Hence the suit. 5. The petitioner-defendant no. 7 appeared in the suit and filed her written statement inter alia contending that she married to defendant no. 6 in the year 2000. She is well educated and hails from a family with business background. She took up business of her own out of her Stridhan. After accumulating some funds of her own she acquired the truck availing loan from HDFC Bank, Sambalpur Branch in the month of January, 2006. Out of her own income she purchased the landed properties described in Schedule-A (viii) and (ix) of the plaint and she purchased a bus availing loan from Bank of Baroda, Bargarh in the month of June, 2010. She further purchased a car availing loan from ICICI Bank, Bargarh. Therefore, the properties described in Schedule-A (viii) and (ix), B (v), (vi) and (xxiv) of the plaint cannot be said to be joint family properties and the same may be deleted from the schedule of the plaint. 6. She further purchased a car availing loan from ICICI Bank, Bargarh. Therefore, the properties described in Schedule-A (viii) and (ix), B (v), (vi) and (xxiv) of the plaint cannot be said to be joint family properties and the same may be deleted from the schedule of the plaint. 6. While matter stood thus the petitioner filed an application for rejection of the plaint and in the alternative she prayed for to delete her name and her properties from the plaint schedule. It was stated that the properties described in the petition stands in her own name which she acquired out of her own source of income as such those properties cannot be treated to be joint family properties. The plaintiff has no cause of action to sue the petitioner in respect of the schedule properties standing in her name and the same are to be excluded from the common hotchpotch. As per Hindu Law the petitioner is not a coparcener of the family of defendant nos. 1 or 2 and she will not get any share in the joint family properties of defendant nos. 1 and 2 in the event any partition takes place. 7. The plaintiff filed his objection to the said application contending that the properties described in the schedule of the plaint are joint family properties of the parties. The said properties have been acquired in the names of different persons out of the nucleus of the joint family fund. Though the petitioner married in me year 2000 she claims that she purchased the properties out of her own source of income. However there is nothing on record as to how she acquired the property without assistance of the joint family properties within such short period. Those questions can only be considered after the parties will adduce evidence in the suit. 8. The court below after hearing the parties by the impugned order rejected the application with a finding that the purpose for which the property is acquired in the name of the petitioner can only be ascertained after taking evidence in the suit. 9. Learned counsel appearing for the petitioner submitted that in a suit for partition, the plaintiff is required to plead specifically the income, expenditure of the joint family property and its surplus to establish that the properties in the name of the petitioner purchased out of the joint family nucleus. 9. Learned counsel appearing for the petitioner submitted that in a suit for partition, the plaintiff is required to plead specifically the income, expenditure of the joint family property and its surplus to establish that the properties in the name of the petitioner purchased out of the joint family nucleus. As the suit was for partition of the joint family properties of defendant nos. 1 and 2, therefore the partition should have been confined to the successors of defendant nos. 1 and 2 and their properties. In case any partition takes place, the petitioner will not get any share in the joint family property as such the petitioner should not have been made as a party to the suit. The property held by her being purchased out of her own income, the same should not have been included in the plaint schedule describing as joint family properties. Hence the impugned order need be interfered with. In support of his contention he has relied on the decision reported in AIR 2003 Madras 290. 10. In the case of George Thomas vs. Smt. Srividya, AIR 2003 Madras 290 the Court taking into consideration the Benami Transactions (Prohibition) Act, 1988 and as the property was purchased in the name of the wife, plan was sanctioned in her name and house assessed to property tax only in her name, held that she would be deemed to be owner not hold the property benami. The claim of the husband who has purchased the house property in the name of his wife by paying his money cannot be inferred that wife is a benamidar. 11. Learned counsel appearing for opposite party nos. 1 and 12 however supported the impugned order and submitted that that the truck mentioned in Item No. VI of Schedule "B" of plaint was purchased in the name of the petitioner for the purpose of family business. The installments have been paid from the joint family account standing in the name of the plaintiff. He further submitted that to facilitate the business of the joint family many accounts have been opened in different banks in the name of the plaintiff, defendant nos. 1, 6 and 7 therefore the claim of the petitioner to have purchased the truck out of her Stridhan savings is not correct. He further submitted that to facilitate the business of the joint family many accounts have been opened in different banks in the name of the plaintiff, defendant nos. 1, 6 and 7 therefore the claim of the petitioner to have purchased the truck out of her Stridhan savings is not correct. Hence the impugned order need not be interfered with in exercise of the jurisdiction under Article 227 of the Constitution of India. In support of his very limited contention he has relied on the decision reported in 1989 (I) OLR 388. 12. This Court in the case of Mohiuddin Khan and Others vs. Nimai Charan Das and Others, 1989 (I) OLR 388 held that in a suit under Section 6 of Specific Relief Act, 1963 the revisional court cannot exercise its power to set aside even an illegal or wrong order nor it can reassess the evidence to have its own conclusion. There is a further limitation in the matter of Section 6 of Specific Relief Act because there is a provision for filing a fresh suit. 13. Considering the rival contention raised by the parties and a conjoint reading of Sections 3 and 4 of Benami Transactions (Prohibition) Act 1988, it reveals that a person can purchase property in the name of his wife and unmarried daughter and it shall be presumed that the said property had been purchased for the benefit of the wife and unmarried daughter and in such event the person shall not be liable for punishment as prescribed under Section 3 (3) of the Act. In case the person in whose name the property recorded or purchased is a coparcener in a Hindu Undivided Family and the property is held for the benefit of the coparceners in the family, the prohibition of the right to recovery of property held benami shall not apply. In the case at hand neither the petitioner is a coparcener nor has she held the property for the benefit of the coparceners in the family. 14. The aforesaid Act prohibits benami transactions and the right to recover property held benami. Hence no suit, claim or action to enforce any right in respect of any property held benami shall lie and no defence based on any right in respect of any property held benami shall be allowed in any suit, claim or action. 14. The aforesaid Act prohibits benami transactions and the right to recover property held benami. Hence no suit, claim or action to enforce any right in respect of any property held benami shall lie and no defence based on any right in respect of any property held benami shall be allowed in any suit, claim or action. However, there are exceptions to such prohibition i.e. (a) property can be purchased in the name of wife and unmarried daughter for their benefit (b) a coparcener can also held the property benami in such event right of recovery is available (c) a trustee or a person can hold property in fiduciary capacity. The court below has not taken into consideration the aforesaid statutory provisions. Hence the impugned order which is an error apparent on the face of record is liable to be set aside. 15. Accordingly, this Court while setting aside the impugned order directs the learned Civil Judge (Senior Division), Bargarh to consider the question afresh to delete the name of the petitioner from the plaint in case relevant documents are produced by the parties regarding the loan sanctioned by the Banks, the property purchased in the name of the petitioner etc. The Civil Miscellaneous Petition along with Miscellaneous Case is accordingly disposed of. Ordered accordingly.