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Ganesh @ Lachman Shaw v/s v/s Amar Nath Shaw


Company & Directors' Information:- D. E. SHAW INDIA PRIVATE LIMITED [Active] CIN = U72200TG1996PTC025388

Company & Directors' Information:- M C SHAW PVT LTD. [Active] CIN = U51228WB1989PTC046980

Company & Directors' Information:- GANESH CORPORATION PRIVATE LIMITED [Active] CIN = U15311PN2011PTC141089

Company & Directors' Information:- NATH PRIVATE LIMITED [Active] CIN = U31908PN2013PTC148540

Company & Directors' Information:- NATH AND CO LTD [Strike Off] CIN = U15141KL1946PLC000796

Company & Directors' Information:- D D AMAR NATH AND COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1986PTC024407

Company & Directors' Information:- W C SHAW PVT LTD [Active] CIN = U51909WB1942PTC010901

Company & Directors' Information:- M L SHAW PVT LTD [Active] CIN = U51909WB1934PTC008071

Company & Directors' Information:- G & H SHAW PVT LTD [Strike Off] CIN = U27310WB1962PTC025389

Company & Directors' Information:- SHAW & CO. PVT LTD. [Strike Off] CIN = U51909WB1953PTC021086

Company & Directors' Information:- R SHAW AND CO. LTD. [Dissolved] CIN = U99999MH1922PTC001006

    S.A.T. Nos. 4234 & 4235 of 2006

    Decided On, 15 July 2019

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE BIBEK CHAUDHURI

    For the Appellant: Shyamal Chakraborty, Abdulla Rahamani, Somnath Das, Shreya Chatterjee, S.k. Aptabuddin, Advocates. For the Respondent: Dipti Bhattacharyya, Advocate.



Judgment Text

1. Both the appeals were heard analogously and this Court proceeds to dispose of these two appeals in a common judgment as hereunder.

2. The respondent in both the appeals as plaintiff filed Title Suit No.36 of 1996 before the learned Civil Judge (Junior Division), 1st Court at Chandannagar against the predecessor-in-interest of the present appellants claiming him to be a licensee in respect of two rooms with attached veranda and another room having no veranda with brick built wall and tile shed and common bath and privy in holding No.9, Ward No.5 under Champdani Municipality in the district of Hooghly. The said suit was subsequently transferred to the court of the learned Additional Court of Civil Judge (Junior Division) and was renumbered as Title Suit No.167 of 1997.

3. Subsequent to the institution of the said suit, the original defendant, namely Ganesh Shaw, since deceased instituted a suit for partition of the above mentioned premises against the plaintiff of the former suit in the court of learned Civil Judge (Senior Division), Hooghly which was registered as Title Suit No.158 of 1996. The former suit being Title Suit No.36 of 1996, since renumbered as Title Suit No.167 of 1997 was transferred to the court of the learned Civil Judge (Senior Division), Hooghly for analogous hearing with Title Suit No.158 of 1996. The said suit was again renumbered as Title Suit No.229 of 1999 in the court of the learned Civil Judge (Senior Division), Hooghly.

4. The learned Civil Judge (Senior Division), Hooghly heard both the suits simultaneously and passed two separate judgments on 31st July, 2004. Title Suit No.229 of 1999 was decreed in favour of the plaintiff/respondent treating the predecessor-in-interest of the present appellants as a licensee and directing him to vacate the suit premises and deliver peaceful possession of the same within a stipulated period of time. On the other hand, the suit for partition filed by the predecessor-in- interest of the present appellants against the plaintiff/respondent was dismissed on contest.

5. Against the judgment and decree passed in both the above mentioned suits, the predecessor-in-interest of the present appellants preferred two appeals which was registered as Title Appeal No.201 of 2004 and 202 of 2004. The learned Additional District Judge, Fast Track 2nd Court at Chandannagar by his judgment and decree dated 11th July, 2006 and 24th July, 2006 respectively dismissed both the appeals.

6. The first appellate court's judgment and decree dismissing both the appeals filed by the predecessor-in-interest of the appellants is under challenge in these appeals.

7. It is pertinent to mention at the outset that the respondent claimed himself to be the absolute owner of the suit premises by virtue of registered deed of sale dated 4th February, 1966. It is found from the pleadings that the premises in suit was purchased by the father of the plaintiff in the name of the plaintiff from his money when the plaintiff was minor. After attaining majority, the plaintiff mutated his name in local municipal records in respect of the premises in suit, obtained electricity in his name, used to collect rent from the tenants who were and are under in occupation of different portions of premises in suit. The original defendant was the elder brother of the plaintiff. He has no accommodation of his own and he requested the plaintiff to permit him to stay in respect of the suit premises for limited period of time. The plaintiff and his father agreed and permitted to occupy the suit premises under leave and licence without any licence fee. Subsequently the original defendant, since deceased committed certain acts of nuisance and annoyance which compel the plaintiff to revoke his licence by a notice dated 11th January, 1996. Since the defendant filed and neglected to comply with the direction of the said notice, the plaintiff instituted Title Suit No.36 of 1996, subsequently renumbered as Title Suit No.229 of 1999 praying for eviction of the original defendant and recovery of khas possession.

8. In his written statement, the defendant denied the case of the plaintiff that he was the licensee in respect of the suit premises. On the other hand, specific case of the defendant is that his father had retired from service prior to purchasing the premises in suit. In the year 1966 the defendant was an employee of a Jute Mill. The premises in suit was purchased at a consideration price of Rs.2950/-, out of which he paid a sum of Rs.1500/- to his father to purchase the premises in suit. However, due to certain political term oil prevailing at the relevant point of time in the said locality, the father of the parties was advised to purchase the said property in the name of the plaintiff who was minor at the relevant point of time. Accordingly the father of the plaintiff purchased the premises in suit by a registered deed of sale dated 4th February, 1966 in the name of the plaintiff, however for the benefit of all the family members. After the death of the father of the parties, both the plaintiff, defendant as well as their sister inherited the suit property. Since the defendant paid a sum of Rs.1500/- towards half of the consideration money to his father he is entitled to 50% share in the suit property. Moreover, in respect of the remaining portion of the suit property the defendant claim 1/3rd share under the law of inheritance. Thus, he claimed 2/3rd share in the suit property. With such positive facts, the defendant denied the case of the plaintiff that he was a licensee in respect of the suit premises and he is liable to be evicted.

9. On the self same fact, the defendant instituted Title Suit No.158 of 1996 praying for partition of the suit property by metes and bounds against the plaintiff of Title Suit No.229 of 1999.

10. The plaintiff of Title Suit No.229 of 1999 as defendant of the subsequent suit took the same defence in his written statement as stated in the plaint of the suit instituted by him.

11. Both the courts below, concurrently found that predecessor-in- interest of the present appellants had no manner of right, title and interest over the suit property. The plaintiff/respondent was able to prove that original defendant, since decease was a permissive occupier in respect of the suit premises and on revocation of licence he was liable to be evicted.

12. Concurrent finding fact in both the suits which was upheld by the First Appellate Court in an analogous judgment and decree is challenged in these two appeals by the legal heirs and representatives of the original defendant, since deceased.

13. Both the appeals came up for hearing on the point of admission under order 41 Rule 11 of the Code of Civil Procedure before the Division Bench of this Court on 19th July, 2007, when the Division Bench of this Court passed an order that these two second appeals will be heard analogously on the following substantial question of law:-

"1. In view of the admitted position that in the deed of purchase of the year 1966 it was specifically sated that the father purchased the property from his own fund in the name of the respondents, whether the learned courts below committed substantial error of law in holding that the appellant was mere a licensee notwithstanding the fact that the father has died and on the death of the father, the property devolved upon the brothers along with their heirs."

14. Mr. Shyamal Chakraborty, learned Advocate for the appellants submits that admittedly the suit property was purchased by the father of the respondent in 1966 when the respondent was only seven years old. It is the case of the predecessor of the appellants that he used to work in a Jute Mill in 1966 and contributed almost half of the consideration price for purchasing the suit property. Though the suit property was purchased in the name of the respondent, consideration money was paid both by the father of the parties and the predecessor of the present appellants. The trial court held that the defendant/appellant failed to establish that he contributed any money to purchase the suit property. The trial court decreed the suit for eviction instituted by the respondent against the predecessor of the appellant on the on the ground that the title deed stands in the name of the respondent. Secondly, the respondent obtained electricity in the premises in suit as owner of the suit property. Thirdly, he performed the act of ownership over the suit property by instituting a suit for eviction against a tenant who used to occupy a portion in the premises in suit. The original defendant, i.e. predecessor of the present appellants failed to prove that he contributed to the purchase of the suit property or that he constructed any portion of the suit property or that he performed any act of ownership in relation to the suit property.

15. The learned Counsel for the appellants next argues that the First Appellate Court held that the property was purchased by the father of the parties in the name of the respondent, but held that the suit for partition filed by the original defendant of Title Suit No.229 of 1999 is not maintainable because the suit is barred under the Benami Transactions (Prohibition) Act, 1988. The learned Counsel for the appellants draws my attention to page 9 of the judgment passed by the learned First Appellate Court where the learned judge observed that after the promulgation of Benami Transactions (Prohibition) Act, 1988, no suit, claim or action to enforce any right in respect of any property held benami against the person whose name the property is held can be brought. No defence can also be passed on any right in respect of any property held benami against the person in whose name the property is stands. In short, Benami Transactions (Prohibition) Act, 1988 disentitles the real owner to bring an action or raise a claim against the person holding property in benami. The real owner is also debarred from raising any defence in a suit claiming to be the real or actual owner of the property against the person in whose name the properties stands. However, it is pointed out by the learned Counsel for the appellant that the deed of purchase dated 4th February, 1966 is marked as Exhibit-2 during trial of the suit. The recital of the said deed clearly shows that the suit property was purchased in the name of the respondent during his minority from the personal earning of his father. Mr. Chakraborty next refers to the substantial question of law formulated by the Division Bench of this court for decision in these appeals. It is urged by him that when the suit property was purchased by the father of the respondent and predecessor-in-interest of the present appellants, after the death of the father it ought to be held one of the co- sharers and the property had devolved upon him and the respondent as well as the daughter of the original purchaser.

16. Learned Counsel for the appellants submits that the suit property was purchased in 1966. Benami Transactions (Prohibition) Act, 1988 came into effect from 5th September, 1988. Section 3 of the said Act imposes Prohibition of Benami Transaction. It reads thus:-

"3. Prohibition of benami transactions- (1) No person shall enter into any benami transaction.

(2) Nothing in sub-section (1) shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter.

(3) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.

(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under this section shall be non-cognizable and bailable."

17. Plain reading of Section 3 shows that the said provision prohibits any person from entering into Benami Transaction which obviously means from the date on which this provision come into operation, i.e., with effect from September 5, 1988. It is obvious that when a statutory provision imposes new liability and new offence it would naturally have perspective in operation and covers only those offences which take place after Section 3(1) comes into operation.

"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.

(3) Nothing in this section shall apply,--

(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or

(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity."

18. Mr. Chakraborty specially refers to Sub-section (3)(a) of Section 4 of the said Act which states that the prohibition of Section 4(1) and (2) shall not apply where the person in whose name the property is held is coparcener in a Hindu undivided family and the property is held for the benefit of the coparcener in the family. In this connection Mr. Chakraborty refers to decision of in the Hon'ble Supreme Court in the case of R. Rajagopal Reddy and Ors. vs. Padmini Chandrasekharan reported in 1995 (2) SCC 630. In the said report, the Hon'ble Supreme Court considered the following question "Whether Section 4(1) of Benami Transaction (Prohibition) Act, 1988 (hereafter referred to the said Act) can be applied to suit, claim or action to enforce any right in respect of any property held benami against person in whose name such property is held or any other person, if such proceeding is initiated by or on behalf of a person claiming to the real owner thereof, prior to the coming into force of Section 4(1) of the Act. The Hon'ble Supreme Court held that Section 4(1) of the Act could be pressed in service in connection with suits filed prior to coming into operation of that section. Similarly, the view that under Section 4(2), in all suits filed by persons in whose names properties were held, no defence can be allowed at any future date of the proceedings that the properties are held benami, can be sustained. Section 4(2) will have a limited operation even in cases of pending suits after Section 4(2) came into force if such defences are not already allowed earlier.

19. Mr. Chakraborty also refers to another decision of the Hon'ble Supreme Court in the case of C Gangacharan vs. C. Narayanan reported in AIR 2000 SC 589.

20. In support of his contention, Mr. Chakraborty also refers to a decision of the Division Bench of this Court in the case of Subhendu Kumar Dutta vs. Dipankar Ghosh & Ors reported in 2005 (1) CLJ (CAL) 169.

21. Mrs. Dipti Bhattacharyya, learned Advocate for the respondent, on the other hand, submits that the question as to whether a person holds property as a benamdar is essentially a question of fact which cannot be adjudicated in the second appeal. Both the courts below concurrently found that the title deed in respect of the suit property stands in the name of the respondent. He performed all acts of ownership in respect of the suit property. The predecessor-in-interest of the appellants instituted a suit for partition only after the respondent instituted a suit for eviction against him on some false and frivolous grounds. The predecessor-in- interest of the present appellants failed to prove that he contributed consideration price to his father when the suit property was purchased in the name of the plaintiff during his minority. It is trite that the burden of proving of benami nature of transaction lies on the person who alleges the transaction to be a benami. In Binapani Paul vs. Pratima Ghosh reported in 2007 6 SCC 100 the Hon'ble Supreme Court observed and held that the source of money can never be the sole consideration and it is merely one of the relevant considerations, but not determinative in character. During trial of the suit, the predecessor-in-interest of the appellants failed to prove that the suit property was purchased in the name of the respondent in benami and the respondent was merely a name lender. Neither the father of the respondent nor the original defendant took any step claiming ownership over the suit property against the respondent at any point of time after he attained majority claiming title over the suit property as real owners. The suit for partition was filed as a counterblast subsequent to the respondent's the suit for eviction of the predecessor-in-interest of the appellants. After the death of father of the parties, the appellants or their predecessor-in-interest cannot challenge the title of the respondent over the suit property only on the ground that the father of the parties had paid consideration money to purchase the suit property. In support of her contention the learned Advocate for the respondent relies upon a decision of the Hon'ble Supreme Court in the case of Smt. P. Leelavathi (D) By Lrs. vs. V.Shankarnarayana (D) By Lrs. reported in 2019 SAR (C) 672. It is contended on behalf of the respondent that both the courts below found the respondent to be the real owner of the suit property. The learned First Appellate Court further observed and held that the parties are governed under Mitakshara School of Hindu Law. The father of the parties purchased the suit property in the name of the respondent from his self acquired property and not from the ancestral family property of the parties in which case there might be a stake of the plaintiff over the suit property. According to the learned Counsel for the respondent, no substantial question of law is involved in the instant appeal. The suit property was not owned by the father of the respondent and the original defendant. Therefore, the appellants cannot claim ownership over the suit property or any portion thereof. The suit for partition filed by the predecessor-in-interest of the present appellants is not maintainable under such facts and circumstances and there is no reason to interfere with concurrent findings of fact arrived at by both the courts below.

22. Having heard the submissions made by the learned Counsels for the appellants and the respondents and on perusal of the materials on record as well as the impugned judgment delivered by the First Appellate Court affirmed the judgments of the learned trial court, it is pertinent to mention that the claim of the appellants solely raised on the plea that the father of the respondent and the original defendant was the real owner of the suit property and the respondent was merely a name lender and he did not acquire any title over the suit property by virtue of the deed of sale dated 4th February, 1966.

23. The Hon'ble Supreme Court in the case of Valliammal (D) By Lrs vs Subramaniam & Ors reported in (2004) 7 SCC 233 laid down the following six circumstances while considering whether a particular transaction is benami in nature or not:-

(a) The source from which the purchase money came;

(b) The nature and possession of the property, after the purchase;

(c) Motive, if any, for giving the transaction a benami colour;

(d) The position

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of the parties and the relationship, if any, between the claimant and the alleged benamidar; (e) The custody of the title deeds after the sale; and (f) The conduct of the parties concerned in dealing with the property after the sale." 24. Admittedly the respondent was a minor and the property was purchased by his father in his name during his minority. Secondly, the original defendant/appellant failed to prove that he contributed to the purchase of the suit property or subsequent development of the same. Thirdly, the respondent performed all acts of ownership by mutating his name in respect of the suit property, paying taxes thereof, realizing rents from the tenants, initiating suits for eviction against one of the tenants asserting himself as the real owner of the suit property. The original defendant never performed any act of ownership over the suit property. Therefore, both the courts below rightly held that the father of the respondent and the predecessor-in-interest of the present appellants paid consideration money to purchase the suit property solely in the name of the plaintiff and not for the benefit of himself or his other family members including the original defendant. Since it is found from the above discussion that the respondent was the real owner in respect of the suit property, the question of applicability of Benami Transaction (Prohibition) Act and its various provision in the instant case will be a futile exercise and not at all necessary. 25. In view of the above discussion, I have no other alternative but to conclude that no substantial question of law was involved in these appeals and the appeals are liable to be dismissed. 26. Accordingly S.A.T 4234 of 2006 and S.A.T 4035 of 2006 are dismissed on contest, however without cost. 27. The judgment and decree passed by the learned trial court in Title Suit No.229 of 1999 and Title Suit No.158 of 1996, since affirmed in Title Appeal No.201 and 202 of 2004, are affirmed. The respondent is at liberty to put the decree passed in Title Suit No.229 of 1999 in execution. 28. Lower Court record be sent out to the court below immediately along with a copy of this judgment.
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