Calcutta High Court
Dr. Harbhajan Singh Hanspal And Ors. vs Mrs. Beena Kumari Mehra And Ors. on 26 February, 1991
Equivalent citations: (1991)2CALLT133(HC), [1992]195ITR39(CAL)
JUDGMENT M. Mallick, J.
1. The petitioners who are the defendants in Title Suit No. 61 of 1984 pending in the court of the Assistant District Judge, 1st Court, Alipore, 24-Parganas (South), have moved this revision application under Section 115 of the Code of Civil Procedure challenging the order of amendment passed by the learned trial judge allowing the plaintiff/ opposite party's application for amendment of the plaint Facts which are necessary for disposal of this amendment petition may be stated as follows :
2. The plaintiff-opposite party filed the present suit for partition in April, 1984, against the original defendant who is dead and now substituted on her by the present petitioners for partition of the suit property claiming that the suit property belonged to Mrs. Harnam Kaur and the opposite party and the original defendant being the two daughters of Harnam Kaur had inherited the said property in equal shares.
3. The original defendant, on entering appearance, filed a written statement on August 29, 1984, contesting the suit and claiming to be the exclusive owner of the suit property by virtue of a deed of gift executed and registered by Harnam Kaur on August 29, 1984.
4. In March 1986, the present opposite party filed an application for amendment challenging the deed of gift and making some new allegations in the plaint. The same was allowed by the learned trial judge on April 10, 1987. The original defendant moved a revision application before this court and, during the pendency of the said application, the opposite party prayed for withdrawal of the amendment application and the same was allowed by a Division Bench of this court with the direction that this would not prevent the plaintiff/opposite party from making a fresh application for amendment. Thereafter, on December 2, 1987, the present application for amendment has been filed and, in the meantime, the original defendant died on February 24, 1988, and she has been substituted by the present petitioners. Thereafter on September 11, 1990, by Order No. 70, the learned trial judge allowed the opposite party's application for amendment. Being aggrieved, the petitioners have moved this court in revision.
5. On behalf of the petitioners, two points have been raised, namely, that the first part of the amendment, namely, in which the plaintiff seeks to make out a new and inconsistent case that it is the father of the plaintiff/ opposite party who is the real owner of the property and that he has purchased the property with his own money and in the name of his wife, Harnam Kaur, is clearly barred under Section 4(1) of the Benami Transactions (Prohibition) Act, 1988, could not have been allowed by the learned judge. Secondly, that the portion of the amendment by which the deed of gift is challenged as vitiated by fraud and misrepresentation and a relief of declaration that the said deed of gift is void having been filed on December 2, 1987, that is more than three years after the original defendant filed the written statement on August 29, 1984, the amendment seeking the relief is a relief which has already been barred by limitation and the present petitioners' interest will now be affected if the opposite party is allowed to make such a new case and to seek a new relief which, by efflux of time, has become barred by limitation.
6. The revision petition is contested by the plaintiff opposite party by filing an affidavit-in-opposition. It is contended that Section 4 of the Benami Transactions (Prohibition) Act, 1988, is not attracted to the amendment sought for in para 3(a) of the plaint and, as regards the relief for declaration that the deed of gift is void, and the allegations that have been made in paragraphs 10(a), 10(b) and 10(c) to the plaint, it is contended that the present opposite party filed the application for amendment well within the period of limitation and as there was some formal defect, the same was withdrawn and, as the Division Bench of this court gave liberty to the present opposite party to file a fresh petition for amendment, that was done in December, 1987, immediately after the matter was disposed of by the Division Bench and as such the claim cannot be treated to be barred by limitation.
7. We find from the petition for amendment filed by the opposite party that it had two distinct parts. In the first part of the amendment, a new and inconsistent case was sought to be made out that it was not Harnam Kaur but her husband who was the real owner of the property and that Harnam Kaur was only a benamidar.
8. In order to do that, paragraph 3(a) has been sought to be inserted by which it is specifically alleged that the father of the plaintiff/opposite party purchased the property with his own money in the name of his wife, Harnam Kaur. The plaintiff, therefore, traces her title to the property through her father. But the sale deed was, admittedly, in the name of Harnam Kaur. Therefore, the plaintiff had to allege in paragraph 3(a) a case that her father was the real owner and her mother was the benamidar even though the property stood in her name. But Section 4 of the Benami Transactions (Prohibition) Act, 1988, clearly states that no suit to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. The present opposite party is a person who has filed a suit on behalf of a person claiming to be the real owner of the property alleging to be one of his heirs. Therefore, a suit or claim on the plea that Mrs. Harnam Kaur is her father's benamidar is clearly prohibited by Section 4. It is true that when the suit was filed or even when the petition for amendment was filed, the Benami Transactions (Prohibition) Act, 1988, had not come into force but when the amendment petition was considered by the learned trial judge, the above Act had come into force. But, the Supreme Court, in Mithilesh Kumari v. Prem Behari Khare , has clearly held that the prohibition under Section 4 would attract a suit or proceeding pending in a court on the date when the Act came into force. Therefore, this amendment cannot be allowed in a pending suit filed on behalf of the alleged real owner against the defendants who are tracing the title through the mother, the alleged benamidar.
9. On behalf of the opposite party, my attention has been drawn to a Division Bench judgment in Sudhindra Coomar v. Monmohini Coomar in which the Division Bench presided over by Anil Kumar Sen )., while interpreting the provisions of Section 281A of the Income-tax Act, has observed that such a suit by the legal representatives of the person claiming to be the real owner will not attract Section 281A of the Income-tax Act.
10. On considering the above decision of the Division Bench, we are of the view that Section 281A did not prohibit the benami transaction absolutely nor did it constitute any absolute bar against filing a suit by the real owner against the benamidar claiming to be the real owner. Such real owner had to fulfil certain conditions before filing such a suit. In the context of the above provision of the Act, the Division Bench have observed that the legal representatives of the alleged real owner can maintain a suit and, in such case, Section 281A of the Income-tax Act will not be attracted. But, when Section 4 clearly prohibits a suit by the real owner or by anybody on behalf of the real owner including his legal representatives to file a suit claiming his predecessors-in-interest to be the real owner and the predecessors-in-interest of the defendants to be the benamidar, then, in our view, the amendment sought for in paragraph 3(a) could not have been allowed by the learned trial judge as the plaintiff cannot make out such a case because making out such a case is clearly prohibited by Section 4 of the Benami Transactions (Prohibition) Act, 1988. Mr. Banerjee has drawn my attention to Section 3 of the Act where it has been stated that this Act will not apply when a person purchased the property for the benefit of his wife or minor daughter. But the plaintiff has not made out the ease in paragraph 3(a) that her father had purchased the property for the benefit of her mother. Therefore, Section 3 of the Act will not come to the opposite party's rescue in this respect.
11. So far as the amendment in paragraphs 10(a), 10(b) and 10(c) as well as the amendment in the prayer portion of the plaint in which, for the first time, a declaration that the deed of gift in question is invalid and void is sought for, are concerned the contention of the petitioner is that such relief has been barred by limitation as the opposite party came to know of the deed of gift when the written statement was filed by the original defendant on August 29, 1984, and the amendment was filed on December 2, 1987, more than three years from the date on which the plaintiff, admittedly, came to know about the deed of gift.
12. It is true that the amendment seeking a relief which has become barred by limitation should not be allowed because, in the meantime, by efflux of time, the defendant has acquired a valuable right and if such an amendment is allowed, the defendant will be adversely affected.
13. Even though the general rule is that the amendment seeking a new relief which has, by efflux of time, become barred by limitation is not to be allowed generally, there are a series of decisions of the Supreme Court as well as of our High Court in which the view has been expressed that, even though the relief sought for by way of amendment has become barred by limitation, in suitable exceptional circumstances, the same can be allowed.
14. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, , the Supreme Court has held that the amendment taking away the right accrued to a party by lapse of time cannot be allowed. But the Supreme Court, in several decisions thereafter, has modified this principle.
15. In Shanti Kumar R. Canji v. Home Insurance Co. of New York, , Vineet Kumar v. Mangal Sain Wadhera, and Jai Jai Ram Manohar Lal v. National Building Material Supply, , the Supreme Court have clearly held that, in exceptional cases, even an amendment relief for which is barred by limitation can be allowed. In the High Court also in Chanti Charan Pal v. Monindra Nath Das, , Bisweswar Bajpai v. Jajneswar Bajpai, , Panchu Bala Dasi v. Nikhil Rajan Pal, 60 CWN 840 (sic), have also observed that the amendment may be allowed even though the relief may have been barred by limitation when the application for amendment is filed.
16. However, in this case, we find that the original petition for amendment seeking such relief was filed in 1986 well within the period of limitation. As there was some formal defect, it was withdrawn and the Division Bench gave the opposite party liberty to file a fresh application for amendment and, thereafter, this application for amendment has been filed. Therefore, in such circumstances, in order that the dispute between the parties be finally resolved, the amendment of paragraphs 10(a), 10(b) and 10(c) to the plaint as well as the prayer portion (ai) has rightly been allowed by the learned trial judge and we are not inclined to interfere with that part of the order of the learned trial judge allowing the amendment of paragraphs 10(a), 10(b) and 10(c) and prayer portion (ia) of the plaint. But the learned trial judge was not justified in allowing the amendment to paragraph 3(a) to the plaint as well as some consequential amendments in paragraphs 1, 2, 3, 4, 5 and 7 of the schedule to the amendment petition. The said portion of the amendment petition should be rejected in view of our findings in the above.
17. The revision petition is, therefore, allowed in part. The application for amendment is allowed in part save and except the amendment as per the schedule of the amendment being paras 10(a), 10(b) and 10(c) and the prayer portion of the plaint being para (ai) all other amendments as per the schedule of the petition of the amendment are disallowed. The prayer for deleting paragraph 7 and the renumbering of the subsequent paragraphs is also rejected and, as a result, the amendment of paragraphs 10(a), 10(b) and 10(c) shall be treated as the amendment of paragraphs 11(a), 11(b) and 11(c) of the original plaint. The learned trial judge, therefore, shall direct the amendment to be made in the original plaint in terms of the order passed by tills court and the present opposite party shall submit before the learned trial judge a fresh amended plaint in terms of the order passed by this court. In the circumstances, no order for costs is passed.
18. The present petitioner shall file an additional written statement against the amendment allowed by this court within a period of four weeks from the date of communication of this order.
M.N. Roy, J.
19. I agree.