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2022 DIGILAW 367 (CHH)

Usha Thakur W/o Surendra Singh Thakur v. Bindeshwari W/o Virendra Singh Thakur

2022-08-23

GOUTAM BHADURI, RADHAKISHAN AGRAWAL

body2022
JUDGMENT : Goutam Bhaduri, J. Heard. 1. The present appeal is against the impugned judgment & decree dated 03.05.2017 passed in Civil Suit No.08-A/2016 by the District Judge, Dhamtari. The present appeal is by the plaintiff/appellant. 2. The brief facts of this case are that a suit for declaration and permanent injunction was filed by the plaintiff that a purchase in respect of the property situated at Dhamtari, Post Office Bangla Yard was made on 21.06.2011. According to the plaintiff, the plaintiff was ¾th owner of the said property whereas the defendant was ¼th owner. It was pleaded that the plaintiff had brought up Virendra Singh @ Baba Thakur, husband of defendant/respondent No.1. They reposed complete confidence on Baba Thakur as they were residing together. After the education of Baba Thakur with the help of plaintiff, he was engaged in a business and financial support was also extended from time to time. It was pleaded that in the year 1996 plaintiff with his family along with Baba Thakur were residing at Dhamtari and he was married to defendant No.1 Smt. Bindeshwari on 21st of June 2010. While they were living together, the plaintiff received an offer for purchase of a property through the husband of defendant. The sale consideration of the property was Rs. 18 Lakhs along with expenses and after consultation in the house, 14 Lakhs rupees was agreed to be paid by the plaintiff while 4 Lakhs was agreed to be paid by the defendant and sharing of the property was agreed to the extent of ¾th and ¼th ratably. After settlement of the terms of purchase, the sale deed was executed, wherein around 13.59 Lakhs rupees was paid by the plaintiff, while rest of the amount was paid by the defendant. Because of some official work, the plaintiff's husband could not appear at the time of registration proceedings and taking advantage of the absence, Baba Thakur, the husband of defendant No.1, did not get the above agreed terms mentioned in a conspiratorial manner in the sale deed. Because of some official work, the plaintiff's husband could not appear at the time of registration proceedings and taking advantage of the absence, Baba Thakur, the husband of defendant No.1, did not get the above agreed terms mentioned in a conspiratorial manner in the sale deed. it is alleged that the sale deed was executed jointly in favour of the plaintiff and defendant, whereby by fraud, the plaintiff and defendant both became owner in equal part of the property purchased, whereas as per the payment of the sale consideration the plaintiff was to be the owner of ¾th of the property and defendant was to be the owner of ¼th. 3. The defendant in turn denied the averments of the allegation and stated that the amount was paid in equal by the plaintiff and the defendant, therefore, they would be the joint owner of the property. It is further stated that they were not dependent on the plaintiff and was generating the income through his individual business. 4. Learned trial Court framed 4 issues on the basis of averments of pleading and eventually dismissed the suit. Hence this appeal. 5. Learned counsel for the appellant would submit that the cheque which was produced and exhibited would show that part of sale consideration was paid by the plaintiff and the defendant only paid petty sum, therefore, the plaintiff would be entitled to ¾th as against the ¼th share to the defendant. He would further submit that the fraud has been played by the defendant, whereby the property in question was claimed half. Consequently, in absence of the evidence of the sale consideration was equally shared by the parties, the plaintiff would be entitled for ¾th share in the property as against ¼th to the defendant. He would further submit that the cross-examination would show that the document of purchase were never shown to the plaintiff, which shows that a deliberate fraud was committed. 6. Per contra, learned counsel for the respondent No.1 would submit that the order of the Court below is well merited as the sale deed Ex. P-1 no where discloses that the sale consideration was shared in equal. He would further submit that hollow statements have been made to challenge the contents of the sale deed, which is not permitted as per Section 91 & 92 of the Evidence Act. P-1 no where discloses that the sale consideration was shared in equal. He would further submit that hollow statements have been made to challenge the contents of the sale deed, which is not permitted as per Section 91 & 92 of the Evidence Act. Consequently, the appeal has no merit, the same is required to be dismissed. 7. We have heard learned counsel for the parties and perused the record and evidence. 8. Ex. P-1 is the sale deed, whereby the property was purchased in name of Bindeshwari & Smt. Usha i.e. the defendant and the plaintiff. Perusal of the sale deed shows that the sale consideration of Rs.16,62,000/- was paid but by whom it was paid it is not been made clear. The plaintiff claimed that the major part of it was paid by her but was not reduced in writing. On the contrary the sale deed contains the fact that it was purchased in joint name. 9. Section 91 & 92 of the Indian Evidence Act, 1872 (for short 'the Act, 1872') would be relevant to decide the issue. Section 92 of the Act, 1872 is reproduced herein below:- 92. Exclusion of evidence of oral agreement.-When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms: Proviso (1).-Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, 1[want or failure] of consideration, or mistake in fact or law: Proviso (2).-The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document : Proviso (3).-The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved: Proviso (4).-The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents: Proviso (5).-Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved: Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract: Proviso (6).-Any fact may be proved which shows in what manner the language of a document is related to existing facts. 10. Perusal of the entire sale deed no where it reflects that ¾th price was paid by the plaintiff and it was agreed that ¾th would be in favour of the plaintiff and ¼th would be in favour of the defendant. The map on the sale deed do not demonstrate such facts that ¾th would be in name of the one purchaser while ¼th would be in name of other. In absence of any agreed terms to the contrary, applying the principles of Section 92 of the Act, 1872 any effort of oral evidence to overreach the terms of such sale would not be admissible. This proposition is further recently been laid down by the Supreme Court in the case of V. Anantha Raju and another Versus T.M. Narasimhan and others {2021 SCC OnLine SC 969}. 11. Now further submission of the plaintiff if are considered, the entire effort is a covered prayer to declare that the plaintiff is ¾th owner of the property though the property was purchased in joint name. The declaration has been sought for that the ¼th part of the property held by the other purchaser defendant, be declared to be in name of plaintiff as the sale consideration was paid ratably. The declaration has been sought for that the ¼th part of the property held by the other purchaser defendant, be declared to be in name of plaintiff as the sale consideration was paid ratably. Therefore, by implication declaration has been sought by plaintiff that in respect of ¼th share further, the plaintiff is the actual owner and purchase of ¼th share is a benami transaction. 12. Section 4 of the Prohibition of Benami Property Transactions Act, 1988 (hereinafter referred to as 'the Act, 1988') gives a prohibition of the right to recover property held benami. Section 4 of the Act, 1988 reads as under:- “4. Prohibition of the right to recover property held benami. - (1) 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 the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.” 13. The Supreme Court in R. Rajagopal Reddy (DEAD) BY LRS. Versus Padmini Chandrasekharan (DEAD) BY LRS.{ (1995) 2 SCC 630 } promulgated that Section 4 (1) of the Act, 1988 which creates a bar to bring a suit, claim or action to enforce any right in respect of any property held benami though was inserted on 19.05.1988 but even if the property was purchased prior to that the suit to declare it Benami shall be permitted to be filed or entertained or admitted to the portals of any Court. The Supreme Court at para 11 has held that clear legislative intention is seen from the words "no such claim, suit or action shall lie", meaning thereby no such suit, claim or action shall be permitted to be filed or entertained or admitted to the portals of any Court for seeking such a relief after coming into force of Section 4 (1). It has further held that with respect to the view taken by that Section 4 (1) would apply even to such pending suits which were already filed and entertained prior to the date when the Section came into force and which has the effect of destroying the then existing right of plaintiff in connection with the suit property cannot be sustained in the face of the clear language of Section 4(1). The Supreme Court also hled that it has to be visualised that the legislature in its wisdom has not expressly made Section 4 retrospective. Then to imply by necessary implication that Section 4 would have retrospective effect and would cover pending litigations filed prior to coming into force of the Section would amount to taking a view which would run counter to the legislative scheme and intent projected by various provisions of the Act to which we have referred earlier. 14. The said proposition further followed in G. Mahalingappa Versus G.M. Savitha { (2005) 6 SCC 441 } wherein the Supreme Court reiterated the judgment rendered in R. Rajagopal Reddy (supra) and held thus in para 18 & 19:- 18. In para 11 of the said decision of this Court, the Supreme Court further observed: "On the contrary, clear legislative intention is seen from the words "no such claim, suit or action shall lie", meaning thereby no such suit, claim or action shall be permitted to be filed or entertained or admitted to the portals of any court for seeking such a relief after coming into force of Section 4(1)." 19. In the same paragraph the Supreme Court observed: "With respect, the view taken that Section 4(1) would apply even to such pending suits which were already filed and entertained prior to the date when the section came into force and which has the effect of destroying the then existing right of plaintiff in connection with the suit property cannot be sustained in the face of the clear language of Section 4(1). It has to be visualized that the legislature in its wisdom has not expressly made Section 4 retrospective. It has to be visualized that the legislature in its wisdom has not expressly made Section 4 retrospective. Then to imply by necessary implication that Section 4 would have retrospective effect and would cover pending litigations filed prior to coming into force of the section would amount to taking a view which would run counter to the legislative scheme and intent projected by various provisions of the Act to which we have referred earlier. It is, however, true as held by the Division Bench that on the express language of Section 4(1) any right inhering in the real owner in respect of any property held benami would get effaced once Section 4(1) operated, even if such transaction had been entered into prior to the coming into operation of Section 4(1), and henceafter Section 4(1) applied no suit can lie in respect to such a past benami transaction. To that extent the section may be retroactive." 15. Applying the aforesaid principles in this case, when de facto prayer is made for claiming a declaration that though the sale consideration was paid by the plaintiff ¼th property still owns by the defendant would be covered in the principles of the Act, 1988. Any relief if is granted by this Court passing a declaratory decree that though the property was purchased jointly in name of plaintiff and defendant but plaintiff would be ¾th owner for the reason that he has paid the part of the sale consideration, would be against the spirit of Section 4 of the Act, 1988 and no suit would lie for such purpose. 16. In a result, after going through the entire evidence and record, we are of the view that no fault can be attributed to the judgment and decree passed by the Court below. Accordingly, the appeal fails and is dismissed. No order as to costs.