Calcutta High Court (Appellete Side)
Dr. Prasanta Kumar Das vs Sushanta Kumar Das & Others on 29 August, 2016
Author: Tapabrata Chakraborty
Bench: Nishita Mhatre, Tapabrata Chakraborty
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Nishita Mhatre
&
The Hon'ble Justice Tapabrata Chakraborty
F.A. 238 of 2012
Dr. Prasanta Kumar Das
versus
Sushanta Kumar Das & Others
For the Plaintiff / Appellant : Mr. Saptangsu Basu,
Mr. Hironmoy Bhattacharya,
Mr. Sakabda Roy,
Mr. Sounak Bhattacharyya.
For the defendant No.1
/respondent No.1 : Mr. Probal Mukherjee,
Mr. Arnab Mukherjee.
Hearing is concluded on : 08.08.2016. Judgment On : 29th August, 2016. Tapabrata Chakraborty J. :
This appeal is directed against the judgment and decree dated 9th December, 2011 passed by the Learned Civil Judge (Senior Division) at Sealdah in Title Suit No.151 of 2000.
The plaintiff, being the appellant herein preferred a suit for partition and accounts stating, inter alia, that late Balai Charan Das (hereinafter referred to as Balai), father of the parties to the suit, was the absolute owner of the schedule 'A' property having purchased the same by a registered deed dated 16th November, 1951. On the said purchased land, Balai constructed a four storied building. Prior thereto, apprehending legal complications that may arise from claims made by his step-mother, brothers and sisters, Balai purchased the schedule 'B' property in the name of his wife, namely, Smt. Chaya Lata Das (hereinafter referred to as Chaya) on 30th October, 1935 and constructed a two storied building from his own income and he let out a portion of the said building to tenants and collected rent. He also used to maintain the said building and pay the municipal taxes. Subsequent thereto, Balai died intestate on 9th May, 1969 leaving behind the parties to the suit as his legal heirs, who inherited both the properties in the schedules 'A' and 'B', as would be evident from the estate duty clearance and income tax return. On 17th June, 1988, Chaya and the proforma defendant nos.2 and 3 gifted their undivided full share in the schedule 'A' property equally to the plaintiff and the defendant no.1 and accordingly the plaintiff and the defendant no.1 became the joint owners of the schedule 'A'. Thereafter Chaya expired on 17th February, 96 and her undivided 1/5th share over schedule 'B' property devolved upon her heirs, being the parties to the suit. The proforma defendant nos. 2 and 3 relinquished their right, title and interest in the schedule 'B' property in favour of the plaintiff and the defendant no.1 orally and accordingly the plaintiff and the defendant no.1 also became the joint owners of the schedule 'B' property. The plaintiff and his family members are residing in the schedule 'B' property for the last sixty years and that after his marriage, he had constructed and built up the rest portion of the third story and a prayer room on the roof of the schedule 'B' property. The cause of action towards preference of the suit arose on 2nd June, 2000 when the plaintiff demanded the share of income of rent pertaining to the schedule 'A' property. From the written statement filed by the defendant no.1, the plaintiff for the first time came to learn about a fraudulent deed of gift executed by Chaya in favour of the defendant no.1. Such fact was incorporated in the plaint by way of amendment and a prayer was incorporated challenging the said deed of gift allegedly executed on 13th August, 1973. In support of the plaint case reliance has been placed upon 18 documents marked as Exhibit Nos.1 to 18 and to corroborate the contents of the plaint, deposition was tendered by the plaintiff.
The defendant no.1 entered appearance in the said suit and filed a written statement denying the averments made in the plaint and stating, inter alia, that Chaya purchased the schedule 'B' property which she got through her brothers out of money left by her parents, namely, Late Sushila Dasi and Late Rai Bahadur Bhupati Nath Das, who was the Principal of Dhaka Jagannath College and had a lucrative income and from her brothers, namely, Late Manindra Nath Das, who was the owner of a big press and Late Jitendra Nath Das, who was the then director of M/s. Mitsubishi, a big concern of Japan and who also had a manufacturing business. The property at 138/D, Dr. Lal Mohan Bhattacharyya Road was purchased by Balai in the benami of his eldest son being the plaintiff herein. Chaya gifted the schedule 'B' property in favour of the defendant no.1 by executing a deed of gift on 13th August, 1973. The fact of execution of such deed was very much within the knowledge of the plaintiff inasmuch as he objected to the mutation of the property and also demanded partition of the schedule 'B' property by an advocate's letter. The proforma defendant nos.2 and 3 did not have any share in the schedule 'B' property and that as such question of any oral relinquishment of their right in the schedule 'B' property in favour of the plaintiff or the defendant no.1 does not occasion. The defendant no.1 is the absolute owner of the schedule 'B' property and he collects rent from the existing tenants and also pays the corporation and electricity taxes. The plaintiff was residing in the schedule 'B' property as a licensee under the defendant no.1. In paragraph 19 of the written statement it has also been averred that the defendants never gave any estate duty over any property and they have never signed any estate duty form and their signatures in the said form are forged. In support of the averments made in the written statement reliance has been placed upon 9 documents marked as Exhibits 'A' to 'I' and to corroborate the contents of the written statement deposition was tendered by the defendant no.1.
The proforma defendant nos.1 and 2, being the sisters of the plaintiff and the defendant no.1, filed a written statement denying the averments made in the plaint and averring, inter alia, that the schedule 'B' property was purchased by Chaya and a building was constructed thereupon at the cost of their grandmother, namely, Sushila Das out of the money left by Rai Bahadur Bhupati Nath Das. The plaintiff has suppressed the fact as regards existence of another property at 138/D, Dr. Lal Mohan Bhattacharyya Road purchased out of the income of their father. The allegation of oral relinquishment was denied. In a joint meeting among all the family members and friends it was settled that the premises no.138/D, Dr. Lal Mohan Bhattacharyya Road will be of their brothers if the plaintiff leaves the schedule 'B' property and settles at premises no.138/D, Dr. Lal Mohan Bhattacharyya Road but as the plaintiff deviated from the said verbal statement no deed was executed for premises no.138/D, Dr. Lal Mohan Bhattacharyya Road and the said property is a joint property. Chaya was the absolute owner of schedule 'B' property and she had gifted the schedule 'B' property to the defendant no.1. They had never given any estate duty over any property nor did they sign any estate duty form and in the event there is any signature, the same is a forged one. The fact of existence of such a document came to the knowledge of the proforma defendants only after the plaintiff filed the Title Suit No.501 of 2000. In support of the averments made in the said written statement, evidence was tendered by the proforma defendant no.1, namely, Aruna Das.
Upon contested hearing, the learned Court below delivered the judgment dated 9th December, 2011 observing, inter alia, that the plaintiff has not been able to establish that he has half share in schedule 'B' property. The learned Court, however, arrived at a finding that the plaintiff has proved his case to the extent that he has half share and the defendant no.1 has half share in the schedule 'A' property and accordingly the suit was decreed in part declaring that the plaintiff has half share over the schedule 'A' property and the defendant no.1 has half share over the schedule 'A' property and the parties to the suit were allowed six months time to effect the mutual partition of schedule 'A' property, failing which, any of the parties shall have the liberty to move the Court for appointment of Pleader Commissioner to make schedule 'A' property partitioned by metes and bounds, within the ambit of their share.
Mr. Saptangsu Basu, learned senior advocate appearing for the plaintiff/appellant submits that the dispute pertaining to the schedule 'A' property has been set at rest and aggrieved by the rejection of the plaintiff's claim towards partition of the schedule 'B' property, the plaintiff has preferred the instant appeal.
He submits that the schedule 'B' property was purchased by Balai in the name of his wife, namely, Chaya on 30th October, 1935. The income of Balai was the source towards purchase of the said property. Chaya had no independent source of income on the relevant date of purchase of the schedule 'B' property. The name of Chaya was utilised by Balai with an intent to keep the property safe and secured for beneficial interest of all the expected heirs. Such fact stands corroborated through the deposition of the plaintiff.
He emphatically argues that the learned Court below has based its findings on conjectures and surmises and has proceeded being oblivious of the relevant statutory documents which establish that Balai was the owner of the schedule 'B' property. The document in Exhibit 10 is a prescribed form by which an application was made by the heirs of Balai on 4th October, 1969 towards assessment of estate duty pertaining to the properties of Balai. The said document contains the signatures of the parties to the suit and also of Chaya, who expired on 17th February, 1996. Exhibit 18 is an assessment order dated 27th January, 1971 pertaining to the application filed by the heirs in Exhibit 10 and the said document reveals that the 3 storied house existing on schedule 'B' property has been taken into consideration for the purpose of assessment. The learned Court below, however, has not taken into consideration the Exhibit Nos.10 and 18 and there is no discussion or deliberation in the judgment impugned as regards the said statutory documents issued by the appropriate authority under the Estate Duty Act of 1953 (hereinafter referred to as the said Act of 1953) and as regards the right asserted on the basis of the said documents and the plaintiff's claim pertaining to the schedule 'B' property. As regards the infirmity in not taking into consideration the statutory documents, reliance has been placed upon a judgment delivered in the case of Vinod Kumar Arora -vs- Smt. Surjit Kaur, reported in AIR 1987 SC 2179 (para 9).
He further argues that the schedule 'B' property was taken into consideration by the statutory authority for the purpose of assessment of estate duty and the application thereto contained signatures of all the heirs of Balai and it is thus explicit that the schedule 'B' property was a part of the estate of the deceased. The said property comes within the definition of property as provided under Section 2(15) of the said Act of 1953. It would be explicit from the assessment order in Exhibit 18 that as the said property was occupied by the deceased exclusively for residential purpose, exemption was granted in terms of the provisions of Section 33(1)(n) of the said Act of 1953. In consonance with the provisions of Section 53 of the said Act of 1953, the plaintiff and the other heirs being the accountable persons applied for assessment. Admittedly, none of the heirs, who have signed the application, did approach the competent authority for any rectification as provided under Section 61 of the said Act of 1953. Such facts sufficiently establish that the said schedule 'B' property was actually purchased by Balai in the name of his wife and on the rudiments thereof, the plaintiff has discharged his initial onus. Having discharged such initial onus, it was incumbent upon the defendants to establish that Chaya was the absolute owner of the said property. Such burden of proof has not been appropriately discharged by the defendants and the learned Court below has not appropriately considered the weightage of the statutory documents and such infirmities warrant interference of this Court. In support of such contention, reliance has been placed upon the judgment delivered in the case of Union of India -vs- Moksh Builders and Financiers Ltd. and others etc., reported in AIR 1977 SC 409 (paras 15,16 and 20).
According to Mr. Basu it is a well settled proposition of law that a person cannot transfer more than what he/she owns and thus Chaya, having only 1/5th share in the schedule 'B' property, had no authority to gift the entire schedule 'B' property and that as such, the said deed of gift is void ab initio.
He further submits that Chaya had no source of income and such fact stands admitted by the defendants. Balai passed the MBBS Examination in the year 1930. The certificate towards such degree was issued by the competent authority on 28th February, 1931 and immediately thereafter he started his practice. The plaintiff's grandfather was also a medical practitioner. In the backdrop of the said facts it would be highly improbable to suggest that Balai did not have sufficient income to purchase the schedule 'B' property comprising of about 2 Cotthas, 5 Chittacks at a consideration of Rs.2312/-. The yardsticks which are applicable to prove the benami nature of transaction, has been laid down by the Hon'ble 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 as follows :
"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. Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the courts are usually guided by these circumstances: (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale."
Such proposition of law also stands reflected in the judgment delivered in the case of Gapadibai -vs- The State of M.P., reported in (1980) 2 SCC 327.
Per contra, Mr. Probal Mukherjee, learned advocate appearing for the defendant no.1/respondent no.1 herein submits that the plaintiff has miserably failed to establish that the income of Balai was the source of the purchase money. The income of Balai, who passed the MBBS examination in the year 1930 and who started his practice in the year 1933 cannot be said to have attained the income level to purchase a property of more than 2 Cottahs at Ananda Palit Road in the month of October, 1935. Furthermore, within a year thereafter Balai could not have started construction of a building in the said property. The consideration money for purchase of the said property was Rs.2,312.50 p. in the year 1935. On the contrary, Chaya hailed from an affluent family. The schedule 'B' property was purchased out of the money left by the brothers and the parents of Chaya. The plaintiff's maternal grandfather was the Principal of Dhaka Jagannath College and he had a lucrative income. The plaintiff and the defendant no.1 had two maternal uncles. One of them was the owner of a big press and the other was the then director of M/s. Mitsubishi and he also had a manufacturing business. The proximity amongst the date of marriage of the Balai and the date of purchase of the schedule 'B' property also leads to a probable conclusion to the effect that the source towards purchase of the property was the income of the maternal grandfather and maternal uncles of the plaintiff. Thus weighing the materials on record and the evidence tendered it would be more probable and supportive of the fact that the source of money towards purchase of the schedule 'B' property was the money which was gifted as 'Joutuk' at the time of a marriage of the parents of the parties and that the schedule 'B' property was purchased by Chaya. In support of such contention reliance has been placed upon the judgments delivered in the case of Thakur Bhim Singh (Dead) by LRs. and another -vs- Thakur Kan Singh, reported in (1980) 3 SCC 72 and in the case of His Highness Maharaja Pratap Singh: Maharani Sarojini Devi -vs- Her Highness Maharani Sarojini Devi: Uma Devi, reported in (1994) Supp1 SCC 734 (para 81).
He emphatically argues that the gift deed was executed on 13th August, 1973 and in spite of full knowledge of the said gift deed, the plaintiff did not raise any objection nor did he challenge the same before the appropriate forum contemporaneously. In the backdrop of the fact of relinquishment of the share in the schedule 'A' property by Chaya and by the plaintiff's sisters in the year 1988 coupled with the fact that the plaintiff was residing in the schedule 'B' property and that the plaintiff objected against the mutation of the schedule 'B' property, it would be highly improbable to suggest that the plaintiff had no knowledge about the gift deed executed on 13th August, 1973 till 25th September, 2000. A perusal of the letter dated 28th December, 1973 in Exhibit 'H', which was issued in reply to the plaintiff's learned advocate's letter demanding, inter alia, the partition of the schedule 'B' property leaves no doubt that the plaintiff was very much aware of the said deed of gift. Suppressing the fact as regards existence of a joint family property at premises no.138/D, Dr. Lal Mohan Bhattacharyya Road, the plaintiff made an attempt to frustrate the right earned by the defendant no.1 on the basis of the gift deed pertaining to the schedule 'B' property. The plaintiff has miserably failed to tender appropriate evidence to overcome the sanctity of a registered document prepared and executed after a considerable deliberation.
He further argues a point of law that cancellation of a void and/or a voidable transaction is based on the provisions of Section 31 of the Specific Relief Act and that the provisions of the Limitation Act would be applicable. The challenge against the gift deed dated 13th August, 1973 after about 38 years is hopelessly barred by limitation and sustenance of the plaintiff's challenge against the said gift deed suffers from a monstrous absurdity. In support of such contention, reliance has been placed upon the judgments delivered in the case of Prem Singh and Others -vs- Birbal and Others, reported in (2006) 5 SCC 353 (paras 13 to 20 and 27) and in the case of Abdul Rahim and Others -vs- Sk. Abdul Zabar and Others, reported in (2009) 6 SCC 160 (paras 27 and 28).
He further submits that it would be explicit from the Exhibit nos.10 and 18 that the declaration, as regards the properties of the deceased, was made by the plaintiff as the person accountable and affirmed by the plaintiff in his individual capacity and not by the other heirs. The signatures of the defendant no.1 and of her sisters and her mother in Exhibit no.10 have been forged and that as such no weightage can be granted to the said documents.
In reply, Mr. Basu submits that no evidence has been tendered by the author of the document in Exhibit 'H' and as such though the document has been exhibited, the contents of the same cannot be deemed to have been proved. In support of such contention reliance has been placed upon the judgments delivered in the case of in the case of Subhash Maruti Avasare - vs- State of Maharashtra, reported in (2006) 10 SCC 631 (para
16) and in the case of Oriental Insurance Co. Ltd. -vs- Premlata Shukla & Ors., reported in (2007) 8 SCC 575 (para 12).
He further submits that when a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non est in the eye of law. The gift deed has been executed by Chaya, who had no capacity to gift more than her share in the schedule 'B' property.
Heard the learned advocates appearing for the respective parties and considered the materials on record.
The key to unravel the complexities of the problem posed lies in the pleadings and the deposition tendered by the respective parties. The precise degree of imperfections needs to be investigated and categorised on the rudiments of preponderance of probabilities. It is well settled law that strict rules of the Evidence Act and the standard of proof envisaged therein do not apply to civil cases. Inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. Standard of proof cannot be put in a strait-jacket formula. No mathematical formula could be laid on degree of proof. The probative value could be gauged from facts and circumstances in a given case [See the judgments delivered in the case of Santosh Hazari -vs- Purushottam Tiwari (Dead) by LRs., reported in (2001) 3 SCC 179 and in the case of Heinz India Pvt. Ltd. & Anr. -vs- State of U.P. & Ors., reported in (2012) 5 SCC 443].
A close scrutiny of the records reveal that though the letter in Exhibit 'H' appears to have been issued in response to the plaintiff's learned advocate's letter claiming a share in the schedule 'B' property, the plaintiff no.1 deposed that he had not sent any letter to his brother "claiming warish in respect of 102, Ananda Palit Road" and that he has also not sent any letter "requesting him not to receive rent from tenants" and that he had not written any letter to his mother stating that "she had no authority to execute deed of gift" and that he came to learn the fact that the defendant no.1 has became the absolute owner of schedule 'B' property and that on the basis of a deed of gift, his name was duly mutated at the K.M.C. only after institution of the suit on 25th September, 2000. The plaintiff on one hand deposed that he was residing in the house at schedule 'B' property and on the other hand admitted that he cannot recollect when he lastly incurred expenditure towards maintenance of the said house and that he cannot say whether the labourers and the shop keeper from whom he had purchased materials will depose in his favour and that he also cannot recollect their names. However, he has denied the suggestion that he had never made any repairing work in respect of schedule 'B' property though he has also deposed that he had constructed thakurghar at his own expenses just after marriage. Upon admitting that in spite of being aware of the rules and regulations laid down by Medical Council he started practicing without obtaining medical degree, the appellant thereafter deposed that he had not practised as a doctor prior to 1965. Deposing that the source towards purchase of the schedule 'B' property was his father's income, the appellant admitted that he had no paper to show that in the year 1935-36 his father had sufficient income to purchase the suit property and that in the year 1936 his father had no income tax file and that he does not know "whether the original title deed was all along lying with my father or at the time of execution of the deed of gift". The appellant had also deposed that the documents in Exhibit nos.10 and 18 reveal that his father asserted his right of ownership in schedule 'B' property and that he realised rent from the tenants, however, he had never requested the tenant in schedule 'B' property not to pay rent to the defendant. The appellant has deposed that the estate duty clearance certificate was obtained after the death of his father and that all the heirs of his father had filed joint application to get the same, however, he cannot say whether he shall file certified copy of the said application or not to prove his contention and that he is not in a position to bring the original estate duty clearance application. When the sisters have relinquished their respective shares in respect of schedule 'A' property by execution of registered deeds there is no reason why they have relinquished their share in the schedule 'B' property orally, as deposed by the appellant. The appellant in course of cross-examination deposed that he knew that Susanta put the signature for getting the order in Exhibit no.18 and that he shall try to bring the register to show the same.
In course of his examination the defendant no.1 has deposed that he had no paper to show that schedule 'B' property was purchased by his mother from his maternal uncles and that his mother was dependent upon his father and that he also cannot file any paper or produce any witness regarding poor status of his father in the year 1933. He has further deposed that since completion of construction of schedule 'B' property he and the plaintiff/appellant started to reside therein and since childhood they were residing with their parents as joint Hindu family. He deposed that he does not remember as to whether any money was paid by his grandmother to his mother for purchase of the schedule 'B' property, however, he specifically denied the suggestions that the schedule 'B' property was not constructed with the contribution with his maternal uncle and that his maternal grandfather was residing in a tenanted house. He further deposed that his step-brother, Shib Chandra Das was a witness to the gift deed and was a tenant in the suit property and that during the lifetime of his mother she never asked the plaintiff to go out of the house.
A perusal of the deposition of DW2 (Aruna Das) reveals that she has supported the contention of the defendant no.1 and has deposed that her father was a renowned doctor and he had a healthy income. Her father did not construct the schedule 'B' property and it was constructed at the cost of her mother. The schedule 'B' property was maintained and tax was paid by her mother who used to collect rents from the tenant. Her father's father Upendra used to reside along with his wife and children in the ground floor of the schedule 'B' property. She denied the suggestion that to deprive the children of the 2nd wife of her father's father, her father purchased the suit property in the name of her mother. She stated that she relinquished her right in 'A' and 'B' property.
A close perusal of Exhibit 10 reveals that the same is a certified copy of a statement filed under the said Act of 1953 wherein it has been affirmed by the plaintiff that he is the accountable person to disclose the value of the estate of the deceased and to pay the duty under the said Act of 1953. At internal page 3 of the document the names of the other heirs of the deceased have been incorporated with a prefix "Sd/-". In course of his deposition the plaintiff stated that he would produce the original of the said document but the same could not be produced. Exhibit 18 is an assessment order under Section 58(3) of the Act. The object of the Act is to impose estate duty on property passing or deemed to pass on the death of a person for reducing the existing inequalities in the distribution of wealth. Internal page 12 of the Exhibit 10 is Form I-B containing a statement of immovable property. The schedule 'B' property is incorporated in the same. At the bottom of the said Form I-B there is a statement to the effect that "to be signed by the person(s) making oath or affirmation". At the bottom of the said document it has been certified that the plaintiff has signed the said Form I-B. At the bottom of page 3 of the said document in Exhibit 10 there is a statement to effect that "this may be sworn or affirm before any Magistrate or any Court or before a person having by law authority to receive evidence. The designation of the Magistrate, Court or person authorised be added below the signature". There is no indication that the said application was affirmed before any competent authority as required. Application for payment of estate duty by any heir of the deceased does not ipso facto suggest that the deceased was the absolute owner of the properties disclosed. The said document certainly does not and cannot decide title in respect of a property. Simply on the rudiments of such estate duty assessment, it is highly improbable to arrive at a conclusion to the effect that the deceased was the owner of the properties mentioned in the application affirmed by the accountable person as the heir of the deceased. Such declaration under the said Act of 1953 cannot outweigh the effect of a registered deed. Furthermore from internal page 78 of the form of return of total income, it appears that no rent was collected by Balai from the schedule 'B' property.
For the purpose of ascertaining the source of money towards purchase of the schedule 'B' property, the evidence tendered by the respective parties needs to be weighed. According to the plaintiff, the source of money towards purchase of the said property was the income of his father. Balai obtained the MBBS degree on 28th February, 1931 and started his practice in 1933 and purchased the property in 1935 out of the income from his practice. According to the defendant no.1 the version of the plaintiff is improbable and doubtful inasmuch as a doctor within two years of practice could not have purchased the schedule 'B' property at Ananda Palit Road with a consideration amount of Rs.2,321.50p. and could not have raised any construction thereupon. The defendant no.1 deposed that Chaya hailed from an affluent family and the schedule 'B' property was purchased out of the money left by the brothers and the parents of Chaya whose residence was in Park Street and the plaintiff's maternal grandfather was the Principal of Dhaka Jagannath College and he had a lucrative income and one of his maternal uncle was the owner of a big press and the other was the then director of M/s. Mitsubishi and was also having a manufacturing business. The proximity amongst the date of marriage of Balai and the date of purchase of the schedule 'B' property and the construction made thereupon also leads to a probable conclusion to the effect that the source towards purchase of the schedule 'B' property was the income of the maternal grandfather and maternal uncles of the plaintiff. The plaintiff has also not been able to establish by preponderance of probabilities the motive of Balai for giving a benami colour to the transaction. From the conduct of the parties on and from the date of execution of the deed of gift on 13th August, 1973 date of preference of the suit in the year 2000 it is also not discernable that the transaction towards purchase of the schedule 'B' property was a benami one.
There is no dispute as regards the proposition of law pertaining to benami transaction as detailed in the judgments delivered in the cases of Jaydayal Poddar (Deceased) through L. Rs. and another (supra) and in the case of Thakur Bhim Singh (supra). There is also no dispute as regards the proposition of law pertaining to shifting of onus as detailed in the judgment delivered in the case of Moksh Builders and Financiers Ltd. and others etc. (supra). The evidence lead by the plaintiff is not sufficient to show by preponderance of probabilities that the schedule 'B' property was purchased by Balai in the name of Chaya. An application by the heirs of the deceased towards assessment of estate duty in respect of properties of the deceased and the consequential order of assessment cannot lead to any irrebuttable presumption to the effect that the deceased was the absolute owner of the properties specified in the concerned application for assessment of estate duty. As such the judgment delivered in the case of Vinod Kumar Arora (supra) has no manner of application in the instant case. In the case of Oriental Insurance Co. Ltd. (supra) upon considering the materials on record, the Court held that once a part of the contents of a document is admitted in evidence, the party bringing the same on record cannot be permitted to turn round and contend that the other contents contained in the rest part thereof had not been proved. The said judgment is clearly distinguishable on facts. The judgment delivered in the case of Subhash Maruti Avasare (supra) was delivered in a totally different fact situation and concerning a criminal proceeding where the requirement is to establish a fact to its hilt.
Indisputably the deed of gift is a registered one and it contains a clear and unambiguous declaration of total divestment of property. A registered document carries with it a presumption that it was validly executed. It is for the party questioning the genuineness of the transaction to show that in law the transaction was not valid. The plaintiff has failed to establish such invalidity. In the factual matrix and the evidence tendered by the parties it is improbable to suggest that the plaintiff, being the resident of the schedule 'B' property since his birth had no knowledge about execution of the gift deed in the year 1973 till 25th September, 2000. The presumption sought to be focused by the plaintiff to the effect that the schedule 'B' property was purchased by Balai stands rebutted on the basis of appropriate evidence tendered on behalf of the defendants. The preponderance of probabilities thus tilts in favour of the defendants. The appraisal of evidence by the learned Court below does not suffer from any material irregularity and is not based on any inadmissible evidence or on conjectures and surmises. There is no improbability whatsoever to displace the opinion as arrived at by the learned Court below.
For the reasons discussed above, we dismiss the instant appeal and affirm the judgment and decree dated 9th December, 2011 passed by the Learned Civil Judge (Senior Division) at Sealdah in Title Suit No.151 of 2000.
Lower Court records along with a copy of the judgment be sent down to the lower Court at the earliest.
Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
(Tapabrata Chakraborty, J.) (Nishita Mhatre, J.)