Calcutta High Court (Appellete Side)
Pratima Paul & Ors vs Rupa Paul & Ors on 18 November, 2009
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present:
The Hon'ble Mr. Bhaskar Bhattacharya, Acting Chief Justice
And
The Hon'ble Mr. Justice Prasenjit Mandal
F.A. No. 424 of 2003
Pratima Paul & Ors.
Versus
Rupa Paul & Ors.
For the Appellant: Mr. Surajit Nath Mitra,
Mr. Kallal Bose,
Mr. Ayan Banerjee.
For the Respondent Nos.1 (a) & 1(b): Mr. A.K. Dutt,
Mr. Sourav Banerjee.
Heard on: 20.10.2009.
Judgment on: 18th November, 2009.
Bhaskar Bhattacharya, ACJ.:
This first appeal is at the instance of the substituted plaintiffs in a suit for declaration and injunction and is directed against a judgment and decree dated 14th September, 2001, passed by the learned Judge, Second Bench of the City Civil Court at Calcutta, in Title Suit No.936 of 1987, thereby dismissing the said suit.
Being dissatisfied, the substituted plaintiffs have come up with the present first appeal.
The original plaintiff, the second son of the original defendant, filed in the City Civil Court at Calcutta a suit being Title Suit No.936 of 1987 thereby praying for the following relief:
" a) Decree for declaration that the Decree dated 17.3.87 passed by Learned Judge, Second Bench, Small Causes Court, Calcutta in Suit No.2757/86 is void, inoperative and not binding on the plaintiff;
b) Decree for declaration that the Plaintiff has right, title interest in the suit property by the law of inheritance as son/heir of his deceased father;
c) Decree for declaration that the Deed of Settlement registered at Registrar of Assurance and entered into Book No.1 Volume No.154, Page No.166 to 177 being No.3802 the year 1971 is void, inoperative and not binding on the Plaintiff;
d) Decree for declaration that the defendant was/is Benamder of alleged Sarat Kumar Paul, the deceased husband in respect of the suit property;
e) Permanent injunction restraining the defendant and her men and agents from executing the said Decree dt. 17.3.87 passed by the Learned Judge, Second Bench, Presidency Small Causes Court in Suit No.2757/86 and/or further restraining the Suit No.2757 of 1986 and/or further restraining the defendant and her men and agents from interfering and/or disturbing and/or intermeddling with the possession and enjoyment of the two rooms as described in the Schedule hereunder;
f) Temporary Injunction;
g) Receiver;
h) Costs;
i) Any other relief or reliefs;"
The case made out by the plaintiff was that his father, late Sarat Kumar Paul, was a renowned businessman of Calcutta dealing in crockery, and amassed huge amount of money from such business by virtue of which he purchased many properties including the suit property which is 78, Hari Ghosh Street Lane and two other premises in the benam of his wife Smt. Durgarani Paul, the defendant. The said Sarat Kumar Paul died in the year 1966 and after his death, the defendant, in the year 1971, executed a deed of settlement in respect of the suit property thereby claiming herself to be the sole owner and made a provision of trust by appointing herself as the sole trustee with the stipulation that on her death, the trust will come to an end and her eldest son, will be the absolute beneficiary. Subsequently, the defendant filed a proceeding under Section 41 of the Presidency Small Causes Act in the Small Causes Court at Calcutta for eviction of the plaintiff which was allowed. By taking aid of the said order of eviction, the defendant was trying to evict the plaintiff and hence, the suit was filed for declarations and injunction mentioned above.
The suit was contested originally by the defendant and subsequently, by the substituted defendants, thereby contending that Durga Rani Paul, the mother of the plaintiff, was the actual owner of the property who purchased the property in a court-sale with her own money and thus, neither her husband nor the plaintiff had any right, title and interest over the same. The allegation of benami was totally denied.
At the time of hearing of the suit, one of the substituted plaintiffs, namely, Pratima Paul, deposed in support of the plaint case, while, one of the substituted defendants, namely, Smt. Rupa Paul, appeared as witness for the defendants to oppose the claim. The defendant No.6 Smt. Sankari Rani Saha, one of the daughters of the defendant, however, appeared as D.W.2 to support the plaintiff.
As indicated earlier, the learned Trial Judge, by the judgment and decree impugned herein, has dismissed the suit with the finding that the plaintiff had failed to prove benami character of the purchase by the original defendant.
Being dissatisfied, the substituted plaintiffs have come up with the present appeal.
It may not be out of place to mention here that both the original plaintiff and the defendant had died during the pendency of the suit.
After hearing the learned Counsel for the parties and after going through the materials on record, we find that the learned Trial Judge has, while determining the question as to whether the purchase in the name of the original defendant was benami in character, rightly followed tests which are required to be applied in ascertaining the question of benami and arrived at a just conclusion.
It appears from record that the property was purchased at the price of Rs.19,300/- in the year 1942 in a court-auction in the name of the original defendant and her name was mutated in the records of the Calcutta Municipal Corporation. The husband of the defendant died in the year 1966, but during his lifetime, he never disputed the title of the defendant in the property. No evidence has been adduced showing that at any point of time, either the husband of the defendant or any of her sons realised rent of the property. The sale-certificate issued by the Court came from the custody of the defendant and it appears that she, all along, paid municipal taxes first in her own name and then as a trustee.
Although the learned advocate appearing on behalf of the appellant tried to convince us that the defendant had no income of her own as would appear from the statement of the eldest daughter of the defendant, we are not at all impressed by such submission. By mere bald statement that her mother had no money to purchase the property, such fact is not established. It appears that the defendant was the wife of a rich businessman of Calcutta and three houses stood in her name.
In order to find out whether a particular transaction is really a benami transaction, a Court is required to bear in mind the following well-settled principles:
(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. (See:
Binapani Paul vs. Pratima Ghosh and Ors. [2007 (6) SCC 100]).
We should bear in mind that in the Indian society, if a husband supplies the consideration money for acquiring property in the name of his wife, such fact does not necessarily implies benami; source of money is, no doubt, an important factor but not the decisive one. [See: Chittaluri Sitamma vs. Saphar Sitapatirao reported in AIR 1938 Mad 8 which was quoted with approval in Binapani vs. Pratima (supra)]. The intention of the supplier of the consideration money is the vital fact to be proved by the party who asserts benami. In other words, even if it is proved that Sarat Kumar, the husband of the defendant, paid the consideration money, the plaintiff must further prove that Sarat Kumar really intended to enjoy the full benefit of the title in him alone; at this stage it will be profitable to refer to the following observations of the Supreme Court in the case of Jaydayal Poddar (Deceased) through L. Rs. and another vs. Mst. Bibi Hazra and others reported in AIR 1974 SC 171:
"It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact or benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs."
In this case, the property was acquired in the year 1942, at the price of Rs.19.300/- in a court-sale. At the time of purchase, Sarat Chandra had several children as it appears from evidence that the eldest son was married in the year 1952 and the eldest daughter was married in the year 1948. In those days, a widow had limited heritable interest from her husband. Therefore, even if, for the sake of argument, we accept that the husband paid the money, that fact will not help the plaintiff in the facts of the present case. If a rich businessman in those days, wanted to purchase an immoveable property in the name of his wife in spite of existence of other sons and daughters, the presumption is that he intended to secure his wife so that after his death the wife was not required to rely upon his sons for financial security. Our aforesaid view finds supports from the decision of the Supreme Court in the case of Binapani vs. Pratim (supra) where the Apex Court was dealing with a case where money was supplied by the husband for acquiring property in the name of the wife and arrived at the same conclusion. The position of law that mere supply of money by the husband in the absence of any motive does not amount to benami has been accepted by the Supreme Court long back in the case of Kanakarathanammal vs. S. Loganatha Mudaliar and another reported in AIR 1965 SC 271 in the following words:
"It is true that the actual management of the property was done by the appellant's father; but that would inevitably be so having regard to the fact that in ordinary Hindu families the property belonging exclusively to a female member would also be normally managed by the Manager of the family; so that the fact that appellant's mother did not take actual part in the management of the property would not materially affect the appellant's case that the property belonged to her mother. The rent was paid by the tenants and accepted by the appellant's father; but that, again, would be consistent with what ordinarily happens in such matters in an undivided Hindu family. If the property belongs to the wife and the husband manages the property on her behalf, it would be idle to contend that the management by the husband of the properties is inconsistent with the title of his wife to the said properties. What we have said about the management of the properties would be equally true about the actual possession of the properties, because even if the wife was the owner of the properties, possession may continue with the husband as a matter of convenience. We are satisfied that the High Court did not correctly appreciate the effect of the several admissions made by the appellant's father in respect of the title of his wife to the property in question. Therefore, we hold that the property had been purchased by the appellant's mother in her own name though the consideration which was paid by her for the said transaction had been received by her from her husband".
(Emphasis supplied by us) In the case before us, the plaintiff has failed to prove that the husband of the defendant supplied the money. The sale-certificate was produced from the custody of the defendant. The property was all along mutated in the name of the defendant and she after the death of her husband in the year 1966 executed three deeds of trust in respect of three immoveable properties standing in her name in the year 1971 by asserting herself as the owner. Out of those three properties, in respect of one, involving premises No.17-B, Radhanath Mallick Lane, the plaintiff was nominated as beneficiary. Curiously enough, the plaintiff did not challenge that trust deed in respect of premises No.17-B, Radhanath Mallick Lane by claiming to be a mere co-sharer by virtue of inheritance from his father. He accepted his mother as the owner of that property and did not assert that his mother had no money to purchase that property and at the same time, had been enjoying the benefit of the trust created by his mother in exclusion of the other heirs of his father. No evidence has been adduced to show that apart from the defendant anyone else ever realised rent from the suit properties. It is not even the case of the plaintiff that after the death of his father he ever paid any municipal tax till the filing of the suit. The present suit was filed in the year 1987 long sixteen years after the execution of the trust deed.
The learned advocate for the appellant tried to impress upon us that there is no cross-examination of the PW-1 or the DW-2 regarding the source of purchased money and thus, we should follow the principles laid down by a Division Bench of this Court in the case of A.E.C. Carapiet vs. A.Y. Derderian reported in AIR 1961 Cal 359. We find that in this case, specific suggestion was given to both the witnesses that the defendant with her stridahn money purchased the suit property. Thus, the said decision cannot have any application to the facts of the present case. The DW-2, the eldest daughter of the defendant, even admitted in cross-examination that she never claimed any share in the property after the death of her father.
The learned advocate appearing on behalf of the appellant by relying upon the decision of the Supreme Court in the case of Union of India vs. Moksh Builders and Financiers Ltd. and others reported in AIR 1977 SC 409 contended before us that his client discharged the initial burden of benami and thus, onus shifted upon the defendant to show that the property was purchased from her own money. We have already pointed out that in order to be successful in this type of a litigation, the intention to create a benami must be proved at the first instance. In this case, no evidence on that point has been adduced on behalf of the plaintiff. Moreover, there is not even any averment in the plaint as regards the alleged motive of Sarat Chandra for purchasing the property in the name of his wife. The sole witness for the plaintiff admitted that she was married in the year 1952 and thus, had no personal knowledge about the source of money of her mother-in-law at the time of purchase in the year 1942. Thus, the initial burden has not been discharged so as to call upon the defendant to lead any evidence. We have already discussed the surrounding circumstances and we have no hesitation that the plaintiff has failed to prove benami.
The learned advocate for the appellant as a last resort submitted that we should remand the matter to enable his client to lead evidence on the question of motive.
Such extreme submission is also not tenable in the eye of law. There cannot be any remand for the purpose of enabling a party to fill up the lacuna of its evidence. We have already noticed that the plaintiff did not dispute the trust deed executed by his mother in respect of the property at 17-B, Radhanath Mallick Lane where he was a beneficiary but restricted his claim only to the suit property where the beneficiary was his brother. Thus, this suit is filed with mala fide intention.
On consideration of the entire materials on record, we, thus, find that the learned Trial Judge rightly dismissed the suit. We, consequently, dismiss the appeal with costs which we assess at 200 gms.
(Bhaskar Bhattacharya, ACJ.) I agree.
(Prasenjit Mandal, J.)