Calcutta High Court
Smt. Sankari Maity & Ors. vs Birendra Nath Maity on 2 April, 1996
Equivalent citations: (1998)1CALLT174(HC)
Author: B. Panigrahi
Bench: Basudeva Panigrahi
JUDGMENT B. Panigrahi, J.
1. The instant revisional application is directed against an order No. 96 dated 5th August, 1991 passed by the 3rd Munsff, Howrah in T.S. 55 of 1971 allowing the application filed by the opposite party under section 4 of the Benami Transaction (Prohibition) Act, 1988 and consequently dismissed the plaintiffs suit. The petitioner who was eventually the plaintiff in the Title Suit 55 of 1971 had filed the suit for partition and for account. The suit was preliminary decreed and thereafter the opposite party had preferred an appeal before the appellate court in title appeal 126 of 1972. The said title appeal was transferred to the learned Second Additional District Judge at Howrah who dismissed the appeal, inter alia, holding that the plaintiff and the defendants are the co-sharers. After the dismissal of the appeal the defendant chose not to file any second appeal before this court and allowed the Judgment and decree passed by the trial court as well as the first appellate court as conclusive. The plaintiff filed an application to pass final decree in terms of the direction given in the preliminary decree. At that stage the defendant had filed an application on 17.6.89, inter alia, alleging that the plaintiffs suit is not maintainable in the civil court Inasmuch as it is barred by virtue of provision of section 4 of the Benami Transaction (Prohibition) Act. 1988. While deciding the application the learned trial Judge has taken again the pleadings of the plaint into consideration and held the suit was not maintainable under section 4 of the Benami Transaction (Prohibition) Act, 1988. Thus, the plaintiff has filed this revisional application being aggrieved by and affected with the order passed by the learned trial Judge dismissing his suit.
2. Banerjee, the learned counsel appearing for the petitioner has urged that the learned trial Judge had erroneously dismissed the plaintiffs' suit holding that the provisions of section 4 of the Act is attracted to this case. It was further urged that after the passing of the preliminary decree it was not open to the learned Munsif to reopen the case of the parlies and then hold that the suit was not maintainable in law. From the further contention of Mr. Banerjee it appears that once the preliminary decree has been passed determining the rights of the parties the court has to act pursuant to such direction in the preliminary decree and ought not again to allow the parties to argue afresh. The learned trial court has also erred in passing an order of abatement of the suit by virtue of section 4 of the Act inasmuch as the provision has no retrospective operation.
3. Mr. Dutt, learned counsel appearing for the opposite party has argued in support of the order that the learned trial court has correctly invoked the provision of section 4 of the Act to this case since the plaintiff in the pleadings had taken a stand that the properly was taken on lease from one Surendra Banerjee in the name of the defendant who is the plaintiff's elder brother in good faith. Therefore, in this background once the plaintiff has taken a plea of benami, such plea is obviously untenable in law immediately after passing of the Benami Transaction (Prohibition) Act. Mr. Dutta's second limb of argument is that even assuming the provision of section 4 is prospective in operation, the plaintiff should have challenged the said order by filing a regular appeal before the learned District Judge and he without doing so could not have assailed it by filing a revision. While resolving the controversy between the parties it is necessary to quote the provisions of section 4 of Benami Transaction (Prohibition) Act:
No suit, claim or action to enforce any right in respect of any properly held benami against the person in whose name the property is held or againsl any other person shall He by or on behalf of a person claiming to be the real owner of such properly.
(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 behalf of a person claiming to 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 properly 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 properly is held for the benefit of another person for whom he is a trustee or towards who he stands in such capacity.
4. On a mere perusal of the provision it appears that while the learned Munslf decided the petition suit filed by the opposite party; he has overlooked the provision of sub-section (3) of section 4 of the Act. On a close observation of the provision it appears that this is an exception to the main provision for property held in a coparcener. In an undivided family the property so held would be deemed for the benefit of the other coparceners of the family. Similarly If any property held by a trustee or other persons standing In the fiduciary capacity, the property should be held for the benefit of another person for whom he is a trustee or for whom he stands in such capacity. From the lower court's order it appears that the plaintiff's in his pleadings had claimed thal the properties stood in the name of his elder brother while both where in the joint family. Therefore, he filed a suit for partition. The learned trial Judge after consideration of the evidence of parties and also after going through the pleadings decreed preliminarily the plaintiffs' suit directing the properties to be divided into two equal shares. Against such Judgment the defendant had preferred appeal which the appellate court while affirming the trial court's finding directed the suit properties are to be divided pursuant to the preliminary decree. In the final decree, actual separation of share had to be worked out. The definition of 'decree' contained in sub-section (2) read with provisions in order 20 rule 18(2) as also order 26 rule 14 of the Code indicate, that a preliminary decree has to be passed in a partition suit and thereafter a final decree would be passed for actual separation of share in accordance with the division held under order 26 CPC. There are, thus, two stages in a suit for partition, the first stage of the suit is that when the preliminary decree is passed under which the rights of the parties in the properly in question are determined. The second stage is that stage when the final decree is passed which concludes the proceeding before the court and the suit is treated to have come to an end for all practical purposes. Therefore, once the rights of the parties are determined in the primary decree the court has no other option than to work them out pursuant to the preliminary decree. Examining this case in this background, it does not appear lo be correct that the court was justified in again reopening the suit for partition which had reached its finality after dismissal of the appeal by the appellate court. An identical question arose before the apex court in (1955)5 Supreme Court Cases page 631 In the case of Mool Chand v. Deputy Director, Consolidation. An application was filed by the defendant in the aforementioned case under the provision of section 4 of the Consolidation Act. The defendant took a stand that the suit was not maintainable by virtue of the provision of section 4 of the Consolidation Act in the final decree. It was answered in negative. The application so filed by the defendant was rejected. While deciding the aforementioned case the apex court held as follows:
"As a consequence of the notification Issued under section 4 of the Consolidation of Holdings Act, proceedings pending in the civil court or in appeal stand abated. What abate are suits or proceedings relating to declaration of right or interest in the land lying in the consolidation area.
The definition of 'decree' contained in section 2(2) read with the provisions contained in Order 20 Rule 18(2) as also Order 2G Rule 14 of the Code indicate that a preliminary decree has first to be passed n a partition suit and thereafter a final decree is passed for actual separation of shares in accordance with the proceedings held under Order 26. There are, thus, two stages in a suit for partition. The first stage is reached when the preliminary decree is passed under which the rights of the parties in the property in quesllon are determined and declared. The second stage is the stage when a final decree is passed which concludes the proceedings before the court and the suit is treated to have come to an end for all practical purposes.
Unless otherwise expressly provided, suits filed in the Revenue Court under the U.P.ZA and LR Act are regulated by the provisions of the Code of Civil Procedure as provided by section 341 of that Act A suit for partition of a 'holding' is filed under section 176 of the U.P. ZA and LR Act. Having regard to other relevant provisions of that Act and Rules 156 and 157 of the Rules framed under that Act it appears that in a suit for partition, the Revenue Court also, like the civil court, has first to pass a preliminary decree determining and declaring the rights of the parties and their shares. If any, in the holding. Thereafter, proceedings for the preparation of the final decree are initialed under Rules 158 to 164 which lay down the various modes in which a decree for parlltlon can be implemented and the respective shares of the tenureholders separated.
in accordance with the rights and shares already determined under the preliminary decree.
5. By virtue of section 97 CPC if an appeal is not filed against the preliminary decree and its correctness is not challenged, it becomes final and the parly aggrieved thereby will not be permitted to challenge Its correctness in an appeal against final decree. There is, thus, a distinction between a case in which an appeal is filed against a preliminary decree and a case in which a preliminary decree is not appealed against and Its correctness is not assailed. If, therefore, a notification under section 4 of the Consolidation of Holdings Act is issued in a case when an appeal against the preliminary decree was not pending, the latter, viz. the preliminary decree, will remain unaffected and will not abate but if the preliminary decree had been assailed in appeal, and the appeal ts pending on the date of notification, the latter, namely, the notification, will have the effect of abating the entire suit/proceedings Including the preliminary decree passed therein. On the contrary. If an appeal is filed against the final decree without there being any appeal against the preliminary decree and the preliminary decree becomes 'unassailable' on account of section 97 CPC, the notification under section 4 would abate the proceedings relating to the final decree without in any way touching, impairing or affecting the preliminary decree. Once a preliminary decree is passed, the proceedings so far as declaration of rights or interests in the land are concerned, come to an end. Those rights are to be worked out by the final decree. In a case, therefore, where a preliminary decree has already been passed and only the proceedings relating to the preparation of final decree are pending in any court either at the original stage or at the appellate or revislonal stage, it cannot be said that proceedings relating to "declaralton or determination of rights In the land" within the meaning of section 5(2) of the Act are pending".
6. The learned Munsif had accepted the prayer of the defendant/ opposite party relying on a decision . It is true in the aforementioned case the apex court had taken the view that the provisions of section 4 is retrospective in operation but subsequently a larger Bench of the Supreme Court disagreeing with the earlier observation held that the provisions are prospective In operation and the Supreme Court also held in the case of K. Kajagopal Reddy & Ors. v. Padmini Cimndrasekharan that 'the Act was enacted to efface the then existing right of the real owners of properties held by others benaml. Such an Act was not given any retrospective effect by the legislature. In this respect clear legislative intention is seen from the words "no such claim, suit or action shall lie in section 4(1) meaning thereby no such suit, claim or action shall be permitted to be filed or entertained or admitted to the portals of any court for seeking such a relief after the coming Into force of section 4(1). The word 'lie' in connection with the suit, claim or action having not been defined by the Act, going by the dictionary meaning it would mean that such suit, claim or action to get any property declared benaml will not be admitted on behalf of such plaintiff or applicant against the defendant concerned in whose name the property is held on and from the date on which this prohibition against entertaining of such suits comes into force. The view that section 4(1) would apply even to such pending suits which were already filed and entertained prior to the date when the section came into force and which has the effect of destroying the then existing right of plaintiff in connection with the suit property cannot be sustained in the face of the clear language of section 4(1) the legislature in its wisdom has not expressly made section 4 retrospective. Then to imply by necessary implication that section 4 would have retrospective effect and would cover pending litigation's filed prior to coming Into force of the section would amount to taking a view which would run counter to the legislative scheme and Intent projected by various provisions of the Act. It is, however, true as held by the Division Bench of the Supreme Court in Mithlesh Kumari case than on the express language of section 4(1) any right Inhering in the real owner in respect of any property held benami would get effaced once section 4(1) operated, even if such transaction had been entered into prior to the coming into operation of section 4(1), and hence after section 4(1) applied no suit can lie in respect to such a past benami transaction. To that extent the section may be retrospective. But from this it does not logically follow that the then existing rights got destroyed and even though suits by real owners were filed prior to coming into operation of section 4(1) they would not survive.
7. Section 4(2) provides that if a suit is filed by a plaintiff who claims to be the owner of the property under the document in his favour and holds the property in his name, once section 4(2) applies, no defence will be permitted or allowed in any such suit, claim or action by or on behalf of a person claiming to be the real owner of such property held benami. The disallowing of such a defence which earlier was available, Itself suggests that a new liability or restriction is imposed by section 4(2) on a pre-existing right of the defendant. Such a provision also cannot be said to be retrospective or retroactive by necessary implication. Section 4(2) does not expressly seek to apply retrospectively. So far as such a suit which is covered by the sweep of section 4(2) is concerned, the prohibition of section 4(1) cannot apply to it as it is not a claim or action filed by the plaintiff to enforce right in respect of any property held benami. On the contrary, It is a suit, claim or action flowing from the sale deed or title deed in the name of the plaintiff. Even though such a suit might have been filed prior to 19.5.1988, if before the stage of filing of defence by the real owner is reached, section 4(2) becomes operative from 19.5.1988, then such a defence, as laid down by section 4(2) will not be allowed to such a defendant. However, that would not mean that section 4(1) and section 4(2) only on that score can be treated to be Impltedly retrospective so as to cover all the pending litigations in connection with enforcement of such rights of real owners who are parties to benami transactions entered into prior to the coming into operation of the Act and specially section 4 thereof. Section 4(2) enjoing that no such defence "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. That is to say no such defence shall be allowed for the first time after coming into operation of section 4(2). If such a defence is already allowed in a pending suit prior to the coming into operation of section 4(2). enabling an issue to be raised on such a defence, then the court is bound to decide the issue arising from such an already allowed defence as at the relevant time when such defence was allowed section 4(2) was out of the picture. It was wrongly assumed by the Division Bench of me Supreme Court in Mithilesh Kumari case that an already allowed defence in a pending suit would also get destroyed after coming into operation of section 4(2).
8. It is not possible to accept the contention that if the bar in section 4 is not applicable when a suit pending 'benami' is already filed prior to the prescribed date, and it is treated as applicable only to the suit which be filed thereafter, it would have the effect of classifying the so called 'real' owners into two classes--those who stand in the position of plaintiffs and those who stand in the position of defendants under sub-section (1) and sub-section (2) of section 4. This difficulty Is In built in section 4(2) and does not provide the rationale to hold that this section applies retrospectively. The legislature itself though it fit to do so and there is no challenge to the vires on the ground of violation of Article 14 of the Constilutton. It is not open to the court to rewrite the section also. Even otherwise, in the operation of section 4(1) and (2) no discrimination can be said to have been made amongst different real owners of property. In fact, those cases in which suits are filed by real owners or defences are allowed prior to coming Into operation of section 4(2), would form a separate class as compared to those cases where a stage for filing such suits or defences has still not reached by the time section 4(1) and (2) starts operating. Consequently, the latter type of cases would form a distinct category of cases. There is no question of discrimination being meted out while dealing with these two classes of cases differently. A real owner who has already been allowed defence on that ground prior to coming into operation of section 4(2) cannot be said to have been given a better treatment as compared to the real owner who has still to take up such a defence and in the meantime he is hit by the prohibition of section 4(2), Equally there cannot be any comparison between a real owner who has filed such suit earlier and one who does not file such suit till section 4(1) comes into operation. All real owners who stake their claims regarding benaml transactions after section 4(1) and (2) came into operation are given uniform treatment by these provisions, whether they come as plaintiffs or as defendants.
9. The Act by section 7 has effected a repeal of section 82 of the Indian Trusts Act and while repealing this provision no different intention appears from the Act to affect any right, privilege or liability acquired under section 82 by either side or any pending proceedings regarding such obligation or liability. Therefore, such pending proceedings will have to be continued or enforced as if the repealing Act had not been passed. A conjoint reading of section 82 of the Indian Trusts Act and section 6(bj, (d) and (e) of the General Clauses Act clearly enjoins that if suits are pending wherein the plaintiffs have put forward claims under the then existing section 82 of the Indian Trusts Act has not been effected in connection with such pending proceedings. Where a statutory provision which is not expressly made retrospective by the legislature seeks to affect vested rights and corresponding obligations of parties, such provision cannot be said to have any retrospective effect by necessary Implication,
10. Section 4 or for that matter the Act as a whole is not a piece of declaratory or curative legislation. It creates substantive rights in favour of benamidars and destroys substantive rights of real owners who are parties to such transactions and for whom new liabilities are created by the Act. The use of the words 'It is declared' is not conclusive that the Act is declaratory for these words may, at times be used to introduce new rules of law and the Act in the latter case will only be amending the law and will not necessarily be retrospective. In determining therefore, the nature of the Act, regard must be had to the substance rather than to the form.
11. Declaratory enactment declares and clarifies the real intention of the legislature in connection with an earlier existing transaction or enactment, it does not create new rights or obligation. If a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. The language 'shall be deemed always to have meant is declaratory, and is n plain terms retrospective. In the absence of clear words indicting that the amending Act is declaratory, it would not be so construed when the pre-amended provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning ofa provision of the principal Act which was already implicit. A clariftcatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law when the Constitution came into force the amending Act also will be part of the existing law. If a new Act is to explain an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act.
12. There is no substance in the contention that when the law nullifies the defences available to the real owners in recovering the benami property from the benamdar, the law must apply irrespective of the time of the benami transactions and that the expression "shall lie" under section 4(1) and "shall be allowed" in section 4(2) are prospective and shall apply to present (future stage) and future suits, claims or action only. The words "no suit shall lie" as found in section 4(1) and "no defence based on rights in respect of property shall be allowed" as found in section 4(2) have limited scope and operation and consequently this consideration also cannot have any effect on the conclusion which can be reached in this case.
13. Even though suit may include appeal and further appeals in the hierarchy, at different stages of the litigation. Section 4(1) and section 4(2) cannot be made applicable to these subsequent stages. Otherwise they would cut across the very scheme of the Act.
14. Future defences of real owners against benamidars holders have been nullified as are covered by the sweep of section 4(2) and not others. Rights of the parties to a suit would be determined on the basis of rights available to them on the date of filing of the suit."
15. It is already discussed that as per provision of section 4 sub-section (3) It has no application to the present case. Even otherwise once the preliminary decree is passed, such contention at the behest of the opposite party shall deserve outright rejection, inasmuch as such stand was not taken in the written statement and more so, after the suit having been preliminarily decreed.
16. Next question arises In this case for consideration is whether the order of dismissal of the suit could be challenged by filing an appeal or it could be even assailed by filing a revision, in this connection Mr. Banerjee has cited a decision reported in 1976(1) CLJ at page 470 wherein it has been held :
"The Impugned order does not satisfy the essentials of a 'decree' within the meaning of section 2(2) of the Code of Civil Procedure inasmuch as the said order does not amount to an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit. It is well-settled that the rights within the meaning of section 2(2) mean substantive rights in regard to the subject matter of the suit. Interlocutory orders on matters of procedure unless they determine substantive rights are not decrees. Therefore, decisions on questions of limitation, jurisdiction, resjudlcata and maintainability of suit which determine only plaintiffs right to sue are not decrees. Hence there is not substance in the preliminary objection.
17. The effect of the enactment under sub-section (2) of section 57B of the West Bengal Estate Acquisition Act is that no civil court can entertain any suit or application concerning any land or estate or any right in such estate If it relates to matters specified in clauses (a), (b) and (c) of sub-section (2). The said provisions have also been made applicable in respect of suits and application pending before the civil court immediately before the commencement of the West Bengal Estate Acquisition (Second Amendment) Act, 1973, It is provided that such suit or application shall abate so far as it relates to all or any of the matter refereed to in clause (1), (b) and (c). The expression 'so far as it relates' clearly points out that abatement under the said provisions would be to the extent and only in respect of the matters referred to in those clauses. The court's power to entertain a future suit or to proceed with the trial of the other matters involved in a pending suit or application would not be affected.
18. The expression 'abatement' in the present context means termination of suits without any decision on merits in so far as such suits relate to any of the matters enumerated in clauses (a), (b) and (c) of sub-section (2) of section 57B. There has been a stoppage of the trial of these matters. Hence an order recording abatement under section 57B(2) does not result in adjudication or determination of any of the substantive rights asserted by one party and denied by the other party. But in spite of such ouster of its jurisdiction, the Civil Court is still competent to entertain certain classes of suits.
19. So far as the present case is concerned the position is this : the order impugned does not amount to a decree, also it is not an appealable order inasmuch as it is not covered by Order 43, rule 1 of the Code of Civil Procedure; it appears from the records that the trial court by the order impugned in effect disposed of only Issue No.9 and the remaining issues in the suit still remained to be determined; further. In the suit no formal decree had been drawn up.
20. Even on merits, the order Impugned is not sustalnable. The trial court failed to specify which particular Clause of section 57B(2) would over the instant case. The mere fact that a particular entry in R.S. record is erroneous is no ground for non-suing the plaintiffs under section 57B(2) of the Act. Further, the trial court without recording any evidence has found that the suit property had vested in the State. Such a finding without first recording evidence is clearly bad in law. The plaintiffs in the present case, claim to be post-vesting transferees and they do not claim themselves to be Intermediates. Hardly there is any dispute in this case as to whether the plaintiffs themselves are entitled to retain the suit property. In case the persons who owned the land at the date of vesting did not or could not retain land in suit at the date of vesting, obviously the plaintiffs cannot get any relief in the instant suit. In the facts of this case it would be in consonance with Justice to direct the trial court to allow both parlies to adduce evidence and to make their respective submissions on the different Issues as framed in the suit, thereafter the trial court may dispose of the suit by recording its findings on the issues Including Issue No.9. Accordingly the Rule is made absolute and the case is remanded to the trial court with certain directions."
21. Since by virtue of the impugned order on decree was drawn up and it was only in the nature of an interlocutory order, on matters of procedure, such order could be amendable to the revlsional jurisdiction of the court. The Jurisdiction, res Judicata and maintainability of the suit which determined only the plaintiff's right to the suit and hence there is no substance in the preliminary objection. From the rationale of the above Judgment there leaves no room for doubt that in the Instant case no decree has been drawn up, the petitioner could not have challenged by filing an appeal. Dismissal of his suit on an application filed under section 4 of the Benami Transaction (Prohibition) Act is a matter of procedure which could be challenged by filing a revision. In this connection another decision has also been relied upon reported in AIR 1939 Madras at page 847 in the case of Duuvada Nandessam Chowdari v. Duuvada Balkrishnamma wherein it has been held :
"In order that a matter should be a decree it is not enough that there is a determination, or even a conclusive determination of the rights of parties but that determination must be on matters in controversy in the suit. The expression "matter in controversy in the suit" means such matters as have been brought up for adjudication by the court by the pleadings in the case so framed as to Include them either In the beginning or by amendment made latter with the sanction of the court. It will not do to bring up new matters were to be adjudged on the footing that by an application llself they became matters of controversy in the suit
22. In a partition suit between A and B, a preliminary decree was passed by which B was declared entitled to a half share in those items of family property which had been allotted to his father C under partition. After the preliminary decree A made an application asking court to exclude from partition or to allot certain Items to the share of C which had been sold by C to A during pendency of the suit. The court rejected the petition :
23. Held that as those items were never in controversy, the order rejecting the application was not a decree and was therefore not applicable."
24. In the above situation considering the contention of the opposite parties from any angle I am not inclined to accept those arguments and accordingly I set aside the order passed by the learned Munsif in dismissing the suit under the Provision of section 4 of the Benami Transaction (prohibition) Act. The learned trial Judge Is further directed to dispose of the final decree application filed by the petitioner in accordance with law.
25. In the result the revisional application succeeds but in the circumstances without cost.
26. Application Succeeds