Patna High Court
Smt. Sarojini Bala Dasi vs Smt. Nirmala Devi And Ors. on 1 April, 1997
Equivalent citations: AIR1997PAT156, AIR 1997 PATNA 156, (1997) 1 PAT LJR 830 (1997) 1 BLJ 1210, (1997) 1 BLJ 1210
ORDER N. Pandey, J.
1. This petition under Order XLVII, Rule 1 of the Code of Civil Procedure on behalf of the plaintiff is for review of the judgment dated 16th May, 1991 in Second Appeal No. 248 of 1985 whereby and whereunder a learned single Judge of this Court had set aside the judgment and decree of the first appellate Court as well as that of the learned Subordinate Judge, in Title Suit No. 56 of 1989.
2. The plaintiff claimed title on the basis of the purchase in the year 1963 from Duryodhan Khan who was a settlee of the property in suit. According to the plaintiff, Smt. Kamla Sundari Devi, wife of Duryodhan Khan was a benamidar of such property for her husband. On the other hand, the defendants had purchased the property from Hari Bala Dasi daughter of Kamla Sundari Devi some time in the year 1968. Admittedly, Kamla Sundari Dasi had only one daughter.
3. The learned Subordinate Judge, while disposing of the title suit as well as the Additional District Judge by his final judgment in appeal, held that the real owner of the property was the husband, namely, Duryodhan Khan and title of Kamla Sundari Dasi was ostensible. Accordingly, the defendants were directed to give vacant possession of the suit property to the plaintiff.
4. As would appear from the judgment under review, only substantial question of law framed for consideration was "whether the Courts have decided the question of Benami ownership of the property in the correct legal manner specially in regard to the onus?"
After hearing the parties on the aforesaid question, the learned single Judge held that in view of decision in the case of Mithilesh Kumari v. Prcm Behari Khare, AIR 1989 SC 1247, such a question has become infructuous since it has now been decided that the Benami Transaction (Prohibition of the Right to Recover Property) Act applies to a pending case even before the appellate Court retrospectively. Therefore, no person can claim a property as being real owner even though the property stands in the name of somebody else. The law which enabled the owner to recover a property has now been eliminated by operation of the Benami Transaction (Prohibition of the Right to Recover Property) Act. In other words, the right to recover and/or resist recovery by the real owner against benami now stands extinguished. With these findings, judgments of both the Courts below were set aside.
5. Learned counsel for the petitioner, contended that the learned single Judge failed to appreciate that both the Courts below had recorded a finding that Haribala Dasi was an unchaste lady, therefore, not entitled to inherit the suit property from her father Duryodhan Khan or mother Kamla Sundari Dasi. He contended that under Dayabhaga School, an unchaste lady was not entitled to inherit property of her father or mother. Therefore, the sale deed executed in favour of the defendants on 14-8-1968 by such unchaste lady was illegal and void. In support of his contention, learned counsel placed reliance to the decisions in the case of Nogendra Nandini Dassi v. Venoy Krishna Deb, ILR (1903) 30 Cal 521, Bhaba Kanta Pachani v. Kerpai Chutia, AIR 1935 Cal 144; Ramaiya Konar v. Mottayya Mudaliar, AIR 1951 Mad 954 (FB) and Kanailal Mitra v. Pannasashi Mitra, AIR 1954 Cal 508.
6. The learned counsel contended that in spite of specific findings of the Courts below and settled norms by various decisions, as noticed above, this aspect of the matter was completely ignored by the learned Judge while disposing of the second appeal.
7. In my view, since no such question was framed at the time of admission of hearing of the second appeal, it is not open for me to consider all these aspects while hearing a petition of review under Order XLVII of the Code of Civil Procedure.
8. Mr. Singh next contended that the learned single Judge, has set aside the judgments of both the Courts below on a solitary ground that effect of Section 4(1) and (2) of the Act was to be made retrospective. But the aforesaid judgment in the case of Mithilesh Kumari v. Prem Behari Khare (AIR 1989 SC 1247) (supra) has now been overruled by a recent decision of the Apex Court in the case of R. Rajagopal Reddy v. Padmini Chandrasekharan, (1995) 2 SCC 630 : (AIR 1996 SC 238). The relevant passage of the aforesaid report to which reliance has been placed, can be noticed hereunder (at p. 247 of AIR):--
"22. As a result of the aforesaid discussion it must be held, with respect, that the Division Bench erred in taking the view 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 are held no defence can be allowed at any future stage of the proceedings that the properties are held benami, cannot be sustained. As discussed earlier 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. It must, therefore, be held with respect, that the decision of this Court in Mithilesh Kumari case (AIR 1989 SC 1247) does not lay down Correct law so far as the applicability of Section 4(1) and Section 4(2) to the extent hereinabove indicated, to pending proceedings when these sections came into force, is concerned. ....."
9. There is no doubt that a bare reference to the judgment under review, it would appear that judgments and decrees of both the Courts below were set aside solitarily on the basis of ratio laid down in the case of Mithilesh Kumari v. Prem Behari Khare (AIR 1989 SC 1247) (supra). To my mind, these are not the matters to be considered and examined while hearing a petition for review. The petitioner, therefore, could have availed the remedy of appeal etc. if she was aggrieved by such judgment.
10. For the reasons stated above, I have no option but to dismiss this review petition.
However, parties are left to bear their own costs.