Himachal Pradesh High Court
Ram Singh And Ors. vs Smt. Soma Devi And Anr. on 28 April, 1987
Equivalent citations: AIR1988HP27
JUDGMENT R.S. Thakur, J.
1. This revision petition is directed against the order of the learned Senior Sub Judge, Mandi, dated Dec. 19, 1985, whereby the application of the revisionist Ram Singh (hereinafter referred to as defendant No. 4 as he is as such in the Civil Suit concerned) for amendment of his written statement in suit filed by respondent Soma Devi and Indra Devi (hereinafter referred to as the plaintiffs) against defendant No. 4 and four others being defendants Nos. 1 to 3 and pro forma defendant No. 5 in the plaint concerned, was dismissed.
2. The facts relevant for the disposal of this revision petition are not disputed. The plaintiffs are real sisters to each other and one of the plaintiffs Smt. Soma Devi is wife of defendant No. 4 who initially lived as husband and wife for some time but have started living separately now for some time on account of some estrangement between the two. The plaintiffs instituted a suit in the Court of the Senior Sub Judge at Mandi, wherein they asserted that they were owners in possession of land contained in khata khatoni No. 53 min/99 min, khasra No. 308 measuring 0. 4.3 bighas and a house standing thereon which has been shown in the 'Aks Tatima' attached with the plaint to be standing on khasra No. 308/2 on land measuring 0.3.15 bighas in equal shares. It was further averred that initially the plaintiffs were in possession of this house but subsequently when defendants Nos. 1 to 4 started interfering with their possession, they instituted a suit for permanent prohibitory injunction restraining them from interfering with their possession. During the pendency of this suit, however, defendants Nos. 1 to 4 look forcible possession of this house and put the defendant Yadopati, defendant No. 3 in possession of this house, as tenant of defendant No. 4 which was, of course, illegal and improper. The plaintiffs, therefore, withdrew that suit and filed the instant suit for possession of this house with the averments that defendant No. 4 had no right, title or interest in this property so as to induct defendant No. 3 Yadopati as tenant in the said house and the possession of said Yadopati thereon is that of a trespasser, they have, therefore, sought the relief of possession of the house and also mesne profits at the rate of Rs. 100/- per month, w.e.f. 10-9-1980 when defendants Nos. 1 to 4 took forcible, possession of this house and illegally put defendant No. 3 in possession thereof. The suit was instituted on June 2, 1981.
3. Defendants Nos. 1 to 4 contested this suit and in their joint written statement, they denied that the plaintiffs had any right, title or interest in the house in suit and asserted that as a matter of fact the house in question was in the ownership and possession of defendant No. 4 and that later on defendant No. 4 inducted defendant No. 3 Yadopati as tenant in this house on a monthly rent of Rs. 250/- on July 3, 1980 and that this house was constructed by defendant No. 4 in 1973 whereafter he himself ran a hotel therein for some time and alter he gave it on rent from lime to time to different people. An alternative plea was also taken on behalf of defendant No. 4 that in any case even in his owenership qua the house in question is not proved, since he has been in possession thereof for more than 12 years in open and hostile manner, this adverse possession of his thereon has ripened into ownership.
4. On this plea certain issues were raised by the learned Senior Sub Judge, which are not relevant for the purpose of this revision. The parties then adduced their respective evidence and this evidence on both sides was then closed on Nov. 20, 1985 and the suit was adjourned to Nov. 25, 1985 for final arguments. On the latter date, however, the learned counsel for defendants Nos. 1-4 filed an application on behalf of defendants Nos. 3 and 4 for permission to amend their written statement and by way of an amendment they sought to add in para 6 as an additional plea in the following terms :--
"As there was a decree of civil court amounting to Rs. 228.75 pursuant to which the suit property was attached and thus in order to avoid the future complicacy, the defendant No. 4 executed a sale deed in favour of his wife plaintiff No. 1, Smt. Soma Devi which was a benami transaction without consideration though the possession remained with defendant No. 4."
The learned Senior Sub Judge then vide the impugned order rejected this application on the ground that defendants Nos. 3 and 4 in this case sought to take an inconsistent plea and thus change the very nature of the suit inasmuch as in the earlier suit defendant No. 4 had taken up the plea that he was either owner of this house or had become owner thereof by having been in adverse possession thereof for over 12 years, whereas in the instant application for amendment, he wants to assert that he "was the real owner of this house and that plaintiff Smt. Soma Devi was a mere 'Benami' which plea he would not be allowed to take at this stage of the suit as this tantamounts to setting up totally a new case.
5. The learned counsel for the revisionist has assailed this order in this revision by raising a contention that this finding of the learned Senior Sub Judge is erroneous. He has argued that admittedly the case of defendant No. 4 and also defendant No. 3 from the very beginning has been that defendant No. 4 was the owner of this house as he constructed the same in 1973 at his own expense and has been using it either himself or through tenants and that now he only wants to take an alternate plea that in case he is not proved to be having initial entitlement to the house as he has sold the land on which the house is standing along with some other land to plaintiff Soma Devi, he should be held as real owner of the house since this sale by defendant No. 4 in favour of Smt. Soma Devi, being his wife, was a mere 'Benami' transaction in order to avoid the same being attached and sold by his creditors as at the time of the sale some execution proceedings against him by his creditors were pending in the Court and that he remained in user of this house even after this sale in favour of the plaintiff Soma Devi as an owner and that in these circumstances there was no question of defendant No. 4 setting up a totally new case by virtue of this amendment as held by the Court concerned.
6. The learned counsel for the respondents on the other hand has supported this order and contended that even assuming without conceding that the sale by defendant No. 4 in favour of plaintiff Soma Devi was a 'Benami' transaction the amendment could not be allowed at this stage as even if defendant No. 4 wanted to institute a suit for declaration that this sale was a 'Benami' transaction' on the date of this amendment application, that is, Nov. 25, 1985, his suit would have been time barred as the period of limitation for obtaining such a declaration was only three years which should be counted from the day the suit was instituted, that is, June, 2, 1981 and as such a valuable right has accrued to the plaintiff Soma Devi and she could not be compensated for this by allowing mere costs.
7. I have considered these contentions and for reasons to be recorded presently, I feel that the revision petition is devoid of any merit and the same deserves dismissal.
8. Though I do not agree with the observations of the lower Court that by taking up the plea in question by way of amendment of the written statement, defendant No. 4 was setting up totally a new case since from the beginning the attempt of defendant No. 4 has been to deny the title of the plaintiffs to the suit property and set up the, same in himself whether by way of claiming lawful title in himself or regaining the title through adverse possession and now he has come up with the plea that he was the real owner of the property and even if the plaintiff Soma Devi was claiming the house as a vendee, she could not be said to have become an owner thereof as the sale was a 'Benami' one by him in her favour and he continued to be a real owner in possession of this property.
9. I am, however, firmly of the view that this plea was not open to defendant No. 4 at this stage for various reasons. In the first place admittedly the sale was executed by defendant No. 4 in favour of the plaintiff Soma Devi through a registered sale deed on July 8, 1971 and the plaintiff Soma Devi had been in possession of this property which is the subject matter of this sale ever since. Even according to defendant No. 4 this sale was effected in favour of plaintiff Soma Devi with a view to avoiding attachment and sale thereof at the instance of his creditors. Thus the plaintiff Soma Devi cannot be said to be a 'Benami' of defendant No. 4. The Word 'Benami' is an expression to denote transactions for the benefit not of the person taking part in the transaction but of the person or persons not mentioned. That is to say, a sale is effected in the name of some other than the actual purchaser or the vendee who is only an ostensible owner and the real owner is the person who actually advanced money but for some reason did not disclose his name and this ostensible owner or vendee is known as 'Benamidar' and the transaction is known as 'Benami' and the test which the courts apply for determination of such transaction is to locate the source of the payment of sale consideration.
10. In the instant case defendant No. 4 himself states that this sale was effected to avoid the payments to his creditors and under these circumstances even if defendant No. 4 is taken at his words, it was nothing but a fraudulent transfer which squarely falls within the provisions of Section 53 of the Transfer of Property Act. It isa clear law that a transaction of this type is held as fraudulent within the provisions of Section 53 of the Transfer of Property Act since it is made with intent to defeat or delay the interest of the' creditors of the transferor and it is thus voidable at the option of the creditors, so defeated or delayed. In other words, the transaction of this nature is legal and valid till it is avoided by the creditors. But this right is given to creditors alone and so far as the parties to the transaction are concerned, it is thoroughly legal inter se them and cannot be so avoided at the instance of any of the parties to the transaction. Thus defendant No. 4 does not inhere any right in himself to challenge the validity of this sale transaction against the plaintiff Soma Devi even if it was a fraudulent one within the meaning of Section 53 of the Transfer of Property Act as this right is vested only in the creditors of the transferor or vendor and none else. Thus an illegal plea of this type, in my opinion, cannot be allowed to be taken by defendant No. 4 and that too at the fag end of the case when it was fixed for final hearing.
11. Assuming that defendant No. 4 has such a right, which is just for the sake of arguments, though it is not actually so, as already observed, I feel that in the instant case he still has no right to take up this plea at this belated stage. In Pirgonda Hongonda v. Kalagonda Shidgonda, AIR 1957 SC 363, their Lordships of the Supreme Court while laying down the law as to when the application for amendment should be allowed and when it should not be allowed, have observed as follows : --
"All amendments ought to be allowed which satisfy the two conditions, (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the 'other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim."
12. The latter part of the observations is clearly applicable to the case in hand. It was conceded before me by both sides that in case the suit to void this transaction had to be filed by defendant No. 4 against the plaintiff, Soma Devi, Article 113 of the Limitation Act of 1963 would have been applicable and for filing such a suit limitation of three years from the date when the right to sue accrues is prescribed. Obviously, the right to sue accrued to defendant No. 4 for the first time on Sept. 10, 1980 when the earlier suit was filed by the plaintiffs against defendants Nos. 1 to 4 for permanent injunction by claiming that they were owners in possession of this property. In any case even the present suit was instituted by the plaintiffs on June 2, 1981 and even if the right to sue is taken as having commenced from this date, the limitation would expire on June 2, 1984 whereas the application in question for amendment was moved by defendant No. 4 on Nov. 25, 1985. Thus had he filed any suit for declaration against the plaintiff Soma Devi on Nov. 25, 1985, that he was the real owner of the property in suit and that the sale by him in her favour by virtue of which he has become owner was a fraudulent one and he was entitled to avoid the same, it would have been squarely barred by limitation. In these circumstances, thus a valuable right had accrued to the plaintiff Soma Devi on Nov. 25, 1985, namely to non suit the defendant No. 4 on limitation and in case the application were allowed that would have caused an injury to this valuable right of the plaintiff Soma Devi which obviously could not be compensated by costs and for this reason too, the application in question could not be entertained.
13. In view of the above discussion, the revision petition is dismissed leaving the parties to bear their own costs. The original suit file be now remitted to the Senior Sub Judge, Mandi, forthwith for disposal in accordance with law.