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Shakuntala Bai Agrawal v/s Kasturi Bai

    First Appeal No. 66/2004

    Decided On, 04 January 2010

    At, High Court of Chattisgarh

    By, THE HONOURABLE MR. JUSTICE DHIRENDRA MISHRA & THE HONOURABLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA

    For the Appearing Parties: Shakeel Ahmad, Somkant Verma, Advocates.



Judgment Text

DHIRENDRA MISHRA, J.

(1.) This defendants/appellants' first appeal is directed against the judgment and decree dated 28th November, 2003 passed in Civil Suit No. 5-A/02, whereby learned IV Additional District Judge(Fast Track Court), Janjgir, decreed the suit for declaration and perpetual injunction in favour of the plaintiffs/respondents.(Parties hereinafter shall be referred to as per their description before the Trial Court.)

(2.) Original plaintiff Shatruhan Lal Agrawal is father of Mahendra Kumar Agrawal, whereas defendant No. 1 Shakuntala Bai Agrawal is widow and defendant No. 2 Ku. Jyoti Agrawal is daughter of deceased Mahendra Kumar Agrawal. Original plaintiff Shatruhan Agrawal died during pendency of the suit and the respondent Nos.1 to 7 herein, are legal representatives of deceased Shatruhan Agrawal.

(3.) The plaintiff filed a suit for declaration that he is the owner of agricultural land bearing Khasra Nos.247/2, 272/2, 285 and 801, area 0.68 acre, 0.35 acre, 0.48 acre and 0.54 acre respectively, total area 2.04 acre, situated at Village Korbi and the house situated at Village Baloda, Tehsil Janjgir, Distt.Bilaspur(hereinafter referred to as "the suit property"). The suit property is his self-acquired property, he purchased the same from the proceeds of his own business in the name of his only son Mahendra Kumar and he is Karta of his family. He is in possession of the agricultural land and his son did not have any source of income for purchasing the suit property. After the death of his son Mahendra Kumar, the defendant No. 1 is residing in her parental home with defendant No. 2. Defendants are planning to sell the suit property and they have already sold the house situated at Akaltara. The defendant do not have any right to transfer the property.

(4.) Defendant Nos.1 and 2, in their written statement, denying the averments in the plaint, averred that the suit property is recorded in the name of defendant Nos.1 and 2 in the revenue records. Mahendra Kumar purchased the suit property through registered sale deed dated 26-4-1983 for a consideration of Rs. 6,000/- and constructed a house thereon in the year 1985. They sold the house for their valid necessity for the purposes of marriage of daughter Ku. Jyoti Agrawal. It was further pleaded that apart from the suit property, the plaintiff has 16.40 acres of agricultural land, which was jointly purchased from the income of the plaintiff and late Mahendra Kumar.

(5.) On the basis of pleadings of the respective parties, the following issues were framed by the Trial Court:-

"(1) Whether the plaintiff is title holder of the suit land and suit house ?(2) Whether the plaintiff is entitled for a decree of perpetual injunction with respect to the suit land and suit house ?(3) Relief and costs?"

(6.) The plaintiffs were substituted in the suit after the death of original plaintiff Shatruhan Agrawal as his legal representatives. Kasturibai(P.W. 1), Durgesh Nandini(P.W. 2), Sushil Kumar(P.W. 3) and Firatram(P.W. 4), were examined as plaintiffs' witness, whereas defendant No. 1 Smt.Shakuntala Agrawal examined herself as defendants' witness.

(7.) Learned Trial Court decreed the suit with a finding that the entire suit property is the joint Hindu property; the defendants have failed to prove that the suit property was self- acquired property of deceased Mahendra Kumar; the suit property was acquired from the income of joint Hindu family through their Karta deceased Shatruhan Agrawal and the suit property belonging to joint Hindu family has not been partitioned, and if the suit property is partitioned, then defendant Nos.1 and 2 are also entitled for equal share. Defendant Nos.1 and 2 are restrained, by a decree of perpetual injunction, from alienating the suit property or causing any interference.

(8.) Shri Shakeel Ahmad Siddiqui, learned Counsel for the appellant, submitted that even if some part of the suit property was purchased by the plaintiff while Mahendra Kumar was minor, the original plaintiff was estopped from repudiating the registered sale deeds. The sale deeds, through which the suit property was purchased, were executed in favour of Mahendra Kumar and in these circumstances, the burden of proof lies upon the plaintiff, who asserted that the real transaction is not what is apparently mentioned in the sale deeds. Since the original plaintiff had no title to the suit property, the finding of the Trial Court that the suit property was purchased by deceased Shatruhan as Karta of the joint Hindu family in the name of his only son Mahendra Kumar from the proceeds of the joint Hindu family, is erroneous.

(9.) Reliance is placed on the judgments in the matters of Pawan Kumar Gupta Vs. Rochiram Nagdeo, AIR 1999 SC 1823, and R. Rajagopal Reddy Vs. P. Chandrasekharan, AIR 1996 SC 238.

(10.) On the other hand, Shri Somkant Verma, learned Counsel for the respondents, has supported the impugned judgment of the Trial Court.

(11.) We have heard learned Counsel for the parties, gone through the impugned judgment of the Trial Court and the material available on record.

(12.) Kasturibai(P.W. 1) is widow of late Shatruhan Agrawal. In her statement- on- oath under Order 18 Rule 4(1) of the CPC, she has proved the documents of Exhs. P-1 to P-5 being the original sale deeds, by which the suit property was purchased. She has deposed that her husband had a Grocery Shop at Village Korbi. He had purchased 68 decimal of land from Mangalu in the year 1970 vide Exh. P-1; 54 decimal of land from Anandram in 1975 vide Exh. P-2; 48 decimal of land from Chintaram in 1966 vide Exh. P-3; 6 decimal of land from Shivram in 1983 at Baloda vide Exh. P-4 and 35 decimal of land from Raghubar in the year 1968 vide Exh. P-5. Mahendra resided with his father and he did not have any independent source of income. Mahendra died in the year 1985. In cross-examination, she stated that Mahendra was her only son, whereas Shakuntala Bai is her daughter-in-law. She has denied the suggestion that Mahendra Kumar purchased the land situated at Baloda from his own income. However, she admitted that when the land at Baloda was purchased, Mahendra Kumar was married. She has denied the suggestion that Mahendra was doing separate business. Though she has admitted that the land situated at Akaltara was also recorded in the name of Mahendra Kumar and that land was also purchased by them while he was minor.

(13.) Durgesh Nandini(P.W. 2) is daughter of original plaintiff Shatruhan Agrawal, whereas Sushil Kumar(P.W. 3) is husband of Durgesh Nandini. They have also deposed in the similar line as Kasturibai.

(14.) Firatram(P.W. 4) is an independent witness. In his affidavit under Order 18 Rule 4(1) of CPC, he has deposed that the suit property was purchased by Shatruhan. Mahendra did not do any independent business and he resided with his father and looked after cultivation. He(Firatram) served Shatruhan as his servant for 16-17 years. Mahendra resided with his father till his lifetime.

(15.) Smt.Shakuntala Bai(D.W. 1), in her affidavit under Order 18 Rule 4 of CPC, has deposed that after the death of her husband, she was compelled to leave her matrimonial house and since then she is residing with her parents. The property situated at Baloda was purchased on 26-4-1983 through registered sale deed for a consideration of Rs. 6,000/- by her husband, who constructed a house in his lifetime in the year 1985. After the death of her husband, she receives rent of the said house and the house is recorded in her name. After her husband attained majority, he purchased the land and the house at Akaltara. She is also entitled for equal share in the rest of the property, which is recorded in the name of her father-in-law. In cross-examination, she has admitted that there was no partition between Mahendra and his father.The date of birth of her husband is 28th February, 1955. After marriage in the year 1978, she resided at Village Korbi with her husband. After the death of her husband, the shop at Korbi was closed. The house at Korbi was not partitioned and she is still occupying one room of the said house. She has admitted that majority of the properties were purchased while her husband was minor. She has also admitted that the plot at Akaltara was purchased in the year 1965 and two years thereafter the house was constructed and she has sold the house at Akaltara and only because of this, her father-in-law filed the suit against her. She has admitted in no uncertain terms that her husband was the only son of his father and therefore, he was purchasing properties in his name and she is claiming to the extent of her husband's share. From the deposition of this witness, it is clear that the entire property was purchased by the original plaintiff Shatruhan through proceeds of the joint Hindu family and the property was not partitioned till date.

(16.) In Pawan Kumar Gupta(supra), the suit building belonged to Narain Prasad. Narain Prasad transferred his right in the suit building to the appellant. The appellant filed a suit for eviction of the respondent on the ground on non-payment of rent. The suit was decided on the ground that the suit building was actually purchased by Pyarelal(father of the appellant) and the appellant is only a name-lender. In the said suit, it was held that the appellant is the actual owner of the building and he was entitled to receive the rent of the building. However, the suit was dismissed as the respondent deposited the arrears of rent. Another suit was filed by the appellant for eviction on the ground of bonafide necessity. The respondent took a defence that the appellant is only Benami to his father Pyarelal and the real transferee was Pyarelal. Respondent- father also contested that the sale in favour of the appellant was void as it is void under Section 3 of the Benami Transaction(Prohibition) Act, 1988. The Trial Court decreed the suit with a finding that the appellant is the real transferee and is entitled to institute the suit. In appeal, the decree of the Trial Court was further confirmed. In second appeal, the learned Single Judge reversed the finding of the two Courts regarding Benami transaction and held that Exh. P-11 was executed in favour of Pyarelal, that transaction is hit by Section 3 of the Benami Act and consequently, the transaction is void and accordingly, dismissed the suit filed by the appellant. The Hon'ble Supreme Court considering the recitals of the sale deed that the sale consideration was paid by the plaintiff to Narain Prasad-the transferor, held that no further burden of proof to substantiate that recitals in the document are true, may be cast upon the plaintiff, and the party, who wants to prove that the recitals are untrue, must bear the burden to prove it. Thus, the Hon'ble Supreme Court allowing the appeal, set aside the finding of the High Court that the appellant had no title to the suit property and restored the decree passed by the Trial Court as confirmed by the First Appellate Court.

(17.) In the instant case, the case of the plaintiff-father before the Trial Court was that he purchased the suit property in the name of his only son Mahendra Kumar, while he was minor, from his own income of business of the joint Hindu family. Except one sale deed, which was executed in the year 1983, other four sale deeds were executed while Mahendra Kumar was minor. From the evidence available on record, which have been reproduced in the foregoing paragraphs, it is evident that father and son along with their family members resided together till the death of Mahendra Kumar. The properties were purchased from the proceeds of joint Hindu family in the name of Mahendra Kumar. There is no evidence of partition of the business between father and son. On the contrary, defendant No. 1 Smt. Shakuntala Bai has admitted the entire averments of the plaint in her cross-examination. It is true that in the instant case, the sale deeds of Exhs. P-l, P-3, P-5 were executed in the name of Mahendra Kumar(minor). Thus, considering the evidence adduced by the plaintiff and further considering the statement- on- oath of defendant Smt.Shakuntala Bai, we are of the opinion that finding of the learned Trial Court that the suit property was purchased through the proceeds of joint Hindu family in the name of the only son Mahendra Kumar by his father Shatruhan Agrawal as Karta of the family, is based on proper appreciation of the evidence available on record and the defendants have failed to prove that there was any partition of business of the joint Hindu family or that the property in question was purchased by Mahendra Agrawal from his own personal income.

(18.) The contention of the appellant that the suit instituted by the plaintiff was not maintainable in view of express bar contained in sub-section(1) of Section 4 of the Benami Transactions(Prohibition) Act, 1988(for brevity "the Act"), is fallacious and cannot be accepted, in view of the specific provisions of sub-section(3) of Section 4 of the Act, which carves out an exception to the prohibition engrafted in sub-sections(1) and(2) thereof in cases where the person in whose name the property is held is a co-parcener in Hindu Undivided Family and the property is held for the benefit of the co-parceners in the family or that person is a trustee or other person standing in a fiduciary capacity. Having regard to the fact that admittedly deceased Mahendra Kumar was the only son of original plaintiff Shatruhan, the properties were purchased in the name of Mahendra Kumar while they were the members of joint Hindu family, the property, so purchased, becomes the coparcenary property and, therefore, prohibition contained in sub-section(1) of Section 4 of the Act, will not apply in view of the plea of the plaintiff.

(19.) The Supreme Court in the matter of Bhim Singh and another Vs. Kan Singh, reported in AIR 1980 SC 727, referring to its earlier judgments in the matters of Manmohan Das Vs. Mt. Ramdei, AIR 1931 PC 175,Jaydayal Poddar Vs. Mst. Bibi Hazra,(1974) 2 SCR 90, summed up the principle governing the determination of the question whether a transfer is a Benami transaction or not, as under:-

"18. The principle governing the determination of the question whether a transfer is a Benami trans

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action or not may be summed up thus :(1) The burden of showing that a transfer is a Benami transaction lies on the person who asserts that it is such a transaction;(2) if it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary;(3) the true character of the transaction is governed by the intention of the person who has contributed the purchase money, and(4) the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motives governing their action in bringing about the transaction and their subsequent conduct, etc." Applying the above indicia, if the circumstances emanating from the record of the present case, are considered, it is obvious that late Shatruhan - the original plaintiff purchased the suit property through the proceeds of Undivided Hindu Family in the name of his only son Mahendra Kumar. Some properties were purchased when Mahendra Kumar was minor whereas one property was purchased in the year 1983 when he attained majority. The properties were purchased for the benefit of co-parceners in the family. (20.) On the basis of aforesaid discussions, we are of the opinion that the impugned judgment and decree passed by the learned Trial Court is just and proper; there is no substance in this appeal, the same deserves to be and is, accordingly, dismissed with cost throughout.
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