Tripura High Court
Sri Arun Das vs Smt. Aparna Das on 2 March, 2021
Equivalent citations: AIRONLINE 2021 TRI 115
Author: Arindam Lodh
Bench: Arindam Lodh
Page 1 of 23
HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
RSA. No. 18 of 2019
Sri Arun Das, son of late Chaya Ranjan Das, resident of
Anandanagar Para-8, P.S. Srinagar, Agartala, District: West
Tripura.
.....Appellant
-V E R S U S-
Smt. Aparna Das, wife of Arun Das, resident of Maharajganj
Bazar, P.S. East Agartala, Agartala, District: West Tripura.
..... Respondent.
B_E_F_O_R_E HON'BLE MR. JUSTICE ARINDAM LODH For Appellant(s) : Mrs. S. Deb (Gupta), Advocate.
For Respondent(s) : Mr. D. C. Roy, Advocate.
Date of hearing : 02.12.2020
Date of delivery of
judgment and order : 02.03.2021
Whether fit for reporting : YES
JUDGMENT & ORDER
[1] The present appeal is directed against the judgment and
decree dated 27.04.2018 passed by the learned Addl. District Judge, Court No.4, Agartala, West Tripura in T.A. No. 31 of 2015 dismissing the first appeal affirming the original judgment and decree dated 18.06.2015 passed in T.S. (P) 144 of 2012 by the Court of learned Civil Judge Sr. Division, Court No.2, Agartala, West Tripura, decreeing the suit in favour of the respondent-plaintiff.
Page 2 of 23[2] The respondent-plaintiff (hereinafter referred to as the plaintiff) had instituted a suit for partition of the suit land mentioned in the schedule of the plaint. It is the case of the plaintiff after her marriage with the defendant they jointly purchased the suit property by a registered sale deed No.1-3742 dated 11.12.2007. The plaintiff further alleged that on 27.07.2012 her husband i.e. the respondent herein, had entered into second marriage and drove her out from her matrimonial home.
[3] At the time of institution of the suit, she had been residing at her parental house with great hardship having no source of income. The plaintiff had approached the husband-defendant to partition the suit land in equal share i.e. 50:50 ratio, but, the respondent did not pay any heed to it. Hence, she had claimed partition of the suit land described in the schedule of the plaint.
[4] The appellant-defendant, who is the husband of the plaintiff, refuting the reliefs claimed by the plaintiff had raised the plea of maintainability in his written statement, and all the averments made by the plaintiff therein were denied. The defendant specifically denied that the suit land was jointly purchased by the plaintiff and the defendant. Rather, the defendant stated that he purchased the suit land for his own benefit, and out of their relation, he included plaintiff‟s name in the registered sale deed. The defendant further stated that since 2010, he filed a divorce suit against the plaintiff being number T.S (Divorce) 268 of 2012 on the ground of cruelty and desertion. The defendant further denied that he entered into second marriage and drove his wife-plaintiff out of his house. The defendant further denied the right of the plaintiff to claim the suit property and prayed for dismissal of the suit.
Page 3 of 23[5] On material proposition of above facts, which the parties are at variants, following issues were framed by the learned trial court as under:
ISSUES
1. Is the suit maintainable in its present form and name?
2. Is the plaintiff legally married wife of the defendant Arun Das?
3. Is the plaintiff entitled to get a decree as prayed for in her plaint?
4. To what other relief/reliefs the parties to the suit are entitled to get?
[6] On the basis of aforesaid issues, the learned trial court recorded the evidence of the parties to the lis having produced their respective examinations-in-chief and they were accordingly cross- examined. At the closure of recording evidence, having heard the argument advanced by the learned counsel appearing for the parties, the learned trial court held that the plaintiff was entitled to get her 50% share being co-owner of the suit property out of the sale deed No. 1-3742 dated 11.12.2007.
[7] While deciding the issues, learned trial court had taken note of the relevant provisions of Section-3(2)(a) of the Benami Transactions (Prohibition) Act, 1988 and decreed the suit in favour of the plaintiff- wife that half of the suit land being the result of Benami Transactions is hit by Section-3 of the Act. The learned trial Court further rejected the plea of the learned counsel appearing for the defendant that at the time of purchasing the suit land, both the plaintiff-wife and the defendant- husband were under fiduciary relationship having trust and confidence upon each other.
[8] The appeal being preferred by the defendant-husband under Section-96 of the Code of Civil Procedure (CPC for short), the First Page 4 of 23 Appellate Court having heard the submission of the learned counsel appearing for the parties formulated the following points for decision:
"(I) Whether the plaintiff-respondent is the Benamdar of the defendant-appellant for the half of the suit land?
(II) Whether Benami Transactions in the instant case is applicable or not, besides other points?
(III) Whether the plaintiff-respondent being the legally married wife of the defendant-appellant had any source of income on or before the purchase of the suit property.
(IV) Whether the defendant-appellant is entitled to get a decree as prayed for in his written statement?"
[9] While deciding the aforesaid points, the learned First Appellate Court on appreciation of the definition of Section-3(2) (a) of the Benami Transactions (Prohibition) Act, 1988, held that admittedly the plaintiff-wife had no source of income prior or after her marriage and on that consideration the husband-defendant had purchased the suit property and mentioned his wife (plaintiff) as one of the purchasers only for the benefit and welfare of the wife and children.
[10] The learned First Appellate Court rejected the theory of fiduciary relationship as urged by the learned counsel appearing on behalf of the defendant-husband in absence of pleading in the written statement. Accordingly, the appeal preferred by the defendant-husband was dismissed with affirmation of the judgment and decree passed by the learned trial court whereby and whereunder, the Courts below declared the right title and interest of the plaintiff over the half portion of the suit land and also passed decree for partition.
[11] The dismissal of the first appeal, has prompted the defendant-husband to prefer the present second appeal. While admitting the appeal, the following substantial questions of law were formulated:
Page 5 of 23"(I) Whether the appellate Court has misread the evidence in order to determine the plaintiff-respondent as the Benamder in terms of Section-4(3) (b) of the Benami Transactions (Prohibition) Act, 1988"?
[12] In course of hearing, having heard the learned counsel appearing for the parties, I deem it fit to formulate the following substantial questions of law on consent of the learned counsel appearing for the parties to the lis :
"(I) Whether both the courts below had correctly interpreted the provisions of Section-3(2) (a) of the Benami Transactions (Prohibition) Act, 1988?
(II) Whether the plaintiff-wife has acquired any substantive right out of the sale deed (Exbt. 6 series)?
[13] Heard Mrs. S. Deb (Gupta), learned counsel appearing on behalf of the defendant, appellant-husband ("hereinafter referred to as the defendant") contended that the words „fiduciary relationship‟ had to be gathered from the language of the whole contents of the written statement. Her pointed submission was that the defendant specifically stated in his written statement that the suit land was purchased for his own benefit and he only included the name of his wife under consideration that she was his wife as both of them at the time of transaction was living under mutual „trust‟ and leading their life as „fiduciary relationship‟ having complete confidence upon his wife which influenced him to include her name in the sale deed.
[14] According to the learned counsel appearing for the defendant, both the courts below had misinterpreted the provisions contemplated in Section-3(2) (a) and Section-4(3) (b) of the Benami Transactions (Prohibition) Act, 1988.
[15] Finally, the defendant prayed for dismissal of the judgment and decree passed in favour of the plaintiff by the courts below since, the Page 6 of 23 findings returned by the courts below suffered from misconception and wrong interpretation of law and misreading of the facts as pleaded followed by evidences adduced in evidence by the respective parties.
[16] On the other hand, Mr. D. C. Roy, learned counsel appearing for the plaintiff-wife refuting the submissions of the learned counsel appearing for the defendant-appellant strongly relied upon the findings returned by both the courts below on points of law and facts.
[17] Mr. Roy, learned counsel appearing for the respondent-wife contended that the land was purchased for the benefit of the wife and children of the defendant and the plaintiff. He argued that the plaintiff had contributed a substantial amount along with the defendant from her „Stridhan‟ to pay the total consideration money. Learned counsel further argued that the plaintiff had no source of income and she was driven out by the defendant leading her to institute the present suit for partition of the suit land since she was entitled to get her share equal to that of the defendant.
[18] Before adverting to the merits of the instant case, let me have a look at the relevant provisions of the Benami Transactions (Prohibition) Act, 1988 as it appears necessary to decide the instant second appeal.
[19] A plain reading of Section-3(2)(a) shows that the purchase of property by any person in the name of his wife or unmarried daughter shall not be treated as benami transaction and it shall be presumed, unless the contrary is proved, that the said property has been purchased for the benefit of the wife or the unmarried daughter. In other words, by virtue of Section-3(2)(a) a husband can purchase a property in the name of his Page 7 of 23 wife or his unmarried daughter and the same would not be a prohibitory transaction under the Benami Transactions (Prohibition) Act, 1988.
[20] Section-4(3)(b) does not prohibit a transaction/transfer of an immovable property where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom his stand in such capacity. Section-2(a) of Benami Transactions (Prohibition) Act, 1988 defines a benami transaction as under:
"(a) "Benami transaction" means any transaction in which property is transferred to one person for a consideration paid or provided by another person."
[21] On cumulative reading, both Sections-3 & 4 of the Benami Transactions (Prohibition) Act, 1988, have to be read together and understood together. They are not disjunctive provisions in a comprehensive legislation intended to prohibit Benami transactions. Both sections-3 & 4 are complimentary to each other to achieve the same object i.e. prohibition of Benami transactions. In the context of the present nature of the case, it is also necessary to understand the meaning of the term „fiduciary capacity‟. This term was taken into consideration by the Apex Court in Sri Marcel Martins v. M. Printer & Others, reported in (2012) 5 SCC 342, wherein the Apex Court took into consideration and stated as under:
"(15) The expression "fiduciary capacity" has not been defined in the 1988 Act or any other Statute for that matter. And yet there is no gainsaying that the same is an expression of known legal significance, the import whereof may be briefly examined at this stage.
(16) The term "Fiduciary" has been explained by Corpus Juris Secundum as under:Page 8 of 23
"A general definition of the word which is sufficiently comprehensive to embrace all cases cannot well be given. The term is derived from the civil, or Roman Law. It connotes the idea of trust or confidence, contemplates good faith, rather than legal obligation, as the basis of the transaction, refers to the integrity, the fidelity, of the party trusted, rather than his credit or ability, and has been held to apply to all persons who occupy a position of peculiar confidence toward others, and to include those informal relations which exist whenever one party trusts and relies on another, as well as technical fiduciary relations.
The word „fiduciary‟, as a noun, means one who holds a thing in trust for another, a trustee, a person holding the character of a trustee, or a character analogous to that of a trustee with respect to the trust and confidence involved in it and the scrupulous good faith and condor which it requires; a person having the duty, created by his undertaking, to act primarily for another‟s benefit in matters connected with such undertaking. Also more specifically, in a statute, a guardian, trustee, executor, administrator, receiver, conservator or any person acting in any fiduciary capacity for any person, trust or estate."
17. Words and Phrases, Permanent Edition (Vol. 16-A p. 41) defines "Fiducial Relation" as under:
"There is a technical distinction between a „fiducial relation‟ which is more correctly applicable to legal relationships between parties, such as guardian and ward, administrator and heirs, and other similar relationships, and „confidential relation‟ which includes the legal relationships, and also every other relationship wherein confidence is rightly reposed and is exercised.
Generally, the term „fiduciary‟ applies to any person who occupies a position of peculiar confidence towards another. It refers to integrity and fidelity. It contemplates fair dealing and good faith, rather than legal obligation, as the basis of the transaction. The term includes those informal relations which exist whenever one party trusts and relies upon another, a well as technical fiduciary relations."
18. Black‟s Law Dictionary (7th Edn. Page 640) defines "fiduciary relationship" thus:
"Fiduciary relationship- A relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship. Fiduciary relationships- such as trustee-beneficiary, guardian-ward, agent-principal, and attorney- client - require the highest duty of care. Fiduciary relationship usually arise in one of four situations:
(1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person ha a duty to act for give advice to another on matters falling within the scope of the relationship, or (4) when there is a specific relationship that has traditionally been recognised as involving fiduciary duties, as with a lawyer and a clinet or a stockbroker and a customer."Page 9 of 23
19. Stroud‟s Judicial Dictionary explains the expression "fiduciary capacity" as under:
"Fiduciary Capacity - An administrator who had received money under letters of administration and who is ordered to pay it over in a suit for the recall of the grant, holds it "in a fiduciary capacity" within Debtors Act 1869 so, of the debt due from an executor who is indebted to his testator‟s estate which he is able to pay but will not, so of moneys in the hands of a receiver, or agent, or Manager, or moneys due to an account from the London agent of a country solicitor, or proceeds of sale in the hands of an auctioneer, or moneys which in the compromise of an action have been ordered to be held on certain trusts or partnership moneys received by a partner."
20. Bouvier‟s Law Dictionary defines "fiduciary capacity" as under:
"What constitutes a fiduciary relationship is often a subject of controversy. It has been held to apply to all persons who occupy a position of peculiar confidence towards others, such as a trustee, executor, or administrator, director of a corporation of society. Medical or religious adviser, husband and wife, an agent who appropriates money put into his hands for a specific purpose of investment, collector of city taxes who retains money officially collected, one who receives a note or other security for collection. In the following cases debt has been held not a fiduciary one; a factor who retains the money of his principal, an agent under an agreement to account and pay over monthly, one with whom a general deposit of money is made."
21. We may at this stage refer to a recent decision of this Court in Central Board of Secondary Education and Anr. v. Adiya Bandopadhyay and Ors. (2011) 8 SCC 497, where Ravindeeran, J. speaking for the Court in that case explained the term „fiduciary‟ and „fiduciary relationship‟ in the following words:
"39. The term "fiduciary" refers to a person having a duty to act for the benefit of another, showing good faith and candour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term "fiduciary relationship" is used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction(s). The term also refers to a person who holds a thing in trust for another (beneficiary). The fiduciary is expected to act in confidence and for the benefit and advantage of the beneficiary, and use good faith and fairness in dealing with the beneficiary or the things belonging to the beneficiary. If the beneficiary has entrusted anything to the fiduciary, to hold the thing in trust or to execute certain acts in regard to or with reference to the entrusted thing, the fiduciary has to act in confidence and is expected not to disclose the thing or information to any third party."
22. It is manifest that while the expression "fiduciary capacity" may not be capable of a precise definition, it implies a relationship that is Page 10 of 23 analogous to the relationship between a trustee and the beneficiaries of the trust. The expression is in fact wider in its import for it extends to all such situations as place the parties in positions that are founded on confidence and trust on the one part and good faith on the other.
23. In determining whether a relationship is based on trust or confidence, relevant to determining whether they stand in a fiduciary capacity, the Court shall have to take into consideration the factual context in which the question arises for it is only in the factual backdrop that the existence or otherwise of a fiduciary relationship can be deduced in a given case. Having said that, let us turn to the facts of the present case once more to determine whether the appellant stood in a fiduciary capacity vis-à-vis the plaintiffs-respondents."
[22] In the case of Central Board of Secondary Education & Anr. v. Aditya Bandopadhyay & Ors., reported in (2011) 8 SCC 497, the Apex Court ruled that the term "fiduciary relationship" used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction/s. It further illustrates that such term also refers to a person who holds a thing in trust for another.
[23] In the facts and circumstances, as surfaced in the case, that the suit property was purchased in the joint names of the plaintiff-wife and the defendant-husband. On careful scrutiny of the depositions, it has come to light that the plaintiff-wife in her cross-examination has admitted that she had no source of income before or after the transactions. She has nowhere pleaded in her plaint or in her chief-examination that the suit property was purchased for her benefit albeit, under the statue presumption was in her favour, according to me, the party claiming such presumption, at least, is to plead and say that the questioned property was purchased for her benefit and, only then, burden lies upon the party to rebut such presumption. Contesting the suit, it is the specific pleaded case of the defendant-husband that after marriage, he purchased the suit property paying entire consideration from his own source of income for Page 11 of 23 his own benefit. His further plea is that he has included the plaintiff‟s name, only on consideration that she was his wife. In this circumstance, a critical question lies whether Sub-section-(2) (a) of Section-3 and Sub- section-3 of Section-4 save the transaction like the one with which this Court is concerned.
[24] On conscious reading of Section-3 as aforestated forbids benami transactions in any form, but, it excludes a transaction where a property is purchased by a husband in the name of his wife or by a father in the name of his unmarried daughter. In the second part of Clause-A of Sub-section-2 of Section-3 provides to draw a presumption in favour of such wife and unmarried daughter that such property had been purchased for the benefit of the wife or the unmarried daughter, but, that presumption is rebuttable. As I discussed earlier that the plaintiff-wife, in the instant case, has never pleaded that the property was purchased in her name for her benefit qua the defendant-husband has stated that the suit property was purchased for his own benefit and for that matter of fact, in my opinion, the defendant has successfully rebutted the presumption that the suit property was purchased in favour of her for her benefit.
[25] Almost a similar dispute came up for consideration in second appeal before a Division Bench of Calcutta High Court in Debika Chakraborty v/s Pradip Chakraborty , reported in AIR (2017) Cal 11, where the husband purchased a property in the name of his wife when there was no cloud in the marital relationship between them. Since, the relationship became strange and after separation by a decree of divorce, the wife instituted a suit claiming ownership of the said property. Both the courts below decreed the suit in favour of the wife holding the wife as the real owner of the property, but, the High Court in second appeal Page 12 of 23 reversed the findings of both the courts below rejecting the claim of the wife that she was the real owner of the property. In the said decision, the Calcutta High Court held that the wife was like a „trusty‟ vis-a-vis her husband, if he is treated as „trust‟. In the instant case also, the wife is like a "trusty" vis-a-vis her husband, if he is treated as „trust‟. It has come to light that the defendant-husband paid the entire consideration money and that puts the wife/plaintiff/respondent in "fiduciary capacity" vis-a-vis her husband.
[26] Again, if we minutely peruse Clause-B of Sub-section-3 of Section-4 as quoted hereinabove, and having taken into account the meaning of "fiduciary capacity" or "fiduciary relationship", then, no room is left for this Court to arrive at a finding that the plaintiff-wife was a trustee and she was occupying the position of peculiar confidence towards her husband i.e. the defendant-appellant. In this circumstance, in my considered view, the property purchased will not be treated as a benami property, qua the transaction shall not be considered as benami transaction and further, in such a transaction, the wife will not acquire any substantive right to claim any share as a co-owner of such a property merely because of the fact that her name was included in the transfer deed.
[27] Another noticeable feature in the instant case, I find, though not was noticed by the learned First Appellate Court that while the first appeal was pending, the "Prohibition of Benami Property Transactions Act, 1988 [hereinafter referred to as the "New" Act] came into force and became applicable w.e.f. 01.11.2016 with the repeal of the Benami Transactions (Prohibition) Act, 1988 [hereinafter referred to as the "Old" Act]. The impugned judgment was passed on 27.04.2018 under the "Old"
Page 13 of 23Act when Sub-section-2 of Section-3 and Sub-section-3 of Section-4 of the old Act was omitted w.e.f. 01.11.2016 by Act-43 of 2016. Under the New Act, Sub-Section-9 of Section-2 defines the "Benami Transactions"
which mean as under:
"2(a) Benami Transactions":
(A) A transaction or an agreement-
(a) Where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by, another person; and
(b) The property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration, Except when the property is held by-
(i) a Karta, or a member of a Hindu undivided family, as the case may be, and the property is held for his benefit or benefit of other members in the family and the consideration for such property has been provided or paid out of the known sources of the Hindu undivided family;
(ii) a person standing in a fiduciary capacity for the benefit of another person towards whom he stands in such capacity and includes a trustee, executor, partner, director of a company, a depository or a participant as an agent of a depository under the Depositories Act, 1996 (22 of 1996) and any other person as may be notified by the Central Government for this purpose;
(iii) any person being an individual in the name of his spouse or in the name of any child of such individual and the consideration for such property has been provided or paid out of the known sources of the individual;
(iv) any person in the name of his brother or sister or lineal ascendant or descendant, where the names of brother or sister or lineal ascendant or descendant and the individual appear as joint owners in any document, and the consideration for such property has been provided or paid out of the known sources of the individual; or (B) *********** (C) *********** (D) ***********"
Here it will be relevant to the definition of "person and property"
which are described in Sub-section-24 and 26 of Section-2 of the new Act.
"(24) "person" shall include-- (i) an individual;
(ii) a Hindu undivided family;
(iii) a company;
(iv) a firm;
(v) an association of persons or a body of individuals, whether incorporated or not; (vi) every artificial juridical person, not falling under sub-clauses (i) to (v);
(26) "property" means assets of any kind, whether movable or immovable, tangible or intangible, corporeal or incorporeal and includes any right or interest or legal documents or instruments Page 14 of 23 evidencing title to or interest in the property and where the property is capable of conversion into some other form, then the property in the converted form and also includes the proceeds from the property;"
[28] On conjoint reading of old Act and Section-2 (9)(a) and Exception (ii) and (iii) beneath Section-2(9)(b) under the New Act, we find the legislature in its own wisdom intended to insert Exception clause to give the new Act more meaningful by way of widening the scope of transaction or agreement entered into between near relations regarding "property" as encapsulated under Sub-section-2(b) of Section-2 of the New Act.
Firstly, exception (iii) of Sub-section-9 of Section-2 of the new Act, the legislature used the term „spouse‟ or „child‟ instead of wife or unmarried daughter as was used under the old Act.
Secondly, the presumption part that unless contrary is proved, the said property was purchased for the benefit of the wife or the unmarried daughter has been omitted.
[29] So, under the new Act, if a husband purchases a property in the name of his wife or if the wife purchases any property in the name of her husband and if, the consideration money is paid by either of the individuals, then, such transaction shall not be treated as benami transactions because the same falls under the exception to the prohibited benami transactions in view of Section-2 (9) (a) and Exception (iii) beneath the Section-2(9)(b). Inasmuch as, it is legally permissible for a person to purchase an movable property in the name of his/her spouse from his/her known sources, and in which position, the property purchased will not be a Benami property but the property will be of the Page 15 of 23 de-jure owner, he/she may be husband or wife and not of the de-facto owner, he may be the husband or wife.
[Emphasis supplied] [30] In the case in hand, it is established that the husband- defendant-appellant had paid the total consideration money to the vendor to purchase the suit property, and, only included the name of his wife, the plaintiff-respondent for his own benefit. In my considered view, such purchase would come within the purview of Exception-(iii) of Sub- section-9A (a) (b) of Section-2 of the new act and is saved by the mischief of Sub-Section-9A (a) (b) of Section-2 despite the fact that the nature of transaction incorporating the name of the plaintiff-wife in the sale deed appears to be benami one. Further, in my opinion, in the instant case, the plaintiff-wife being the de facto owner has not acquired any substantive right even under the new Act.
[31] The question may arise, the registered sale deed (Exbt.6 series) was executed on 11.12.2007 i.e. prior to the enactment of the new Act which became applicable w.e.f. 01.11.2016. I have already stated in the earlier part of the judgment that under the old Act also the plaintiff- wife did not acquire any substantive right for the reason that evidence is galore that entire consideration money was paid by the husband-appellant from his own sources of income, and the law is well-settled in this regard, that consideration is one of the important facets of sale transaction.
[32] The question whether a particular sale, benami or not came up for consideration in Valliammal (D) By Lrs. Vs. Subramaniam & Ors, (2004) 7 SCC 233, The Apex Court after taking into consideration its previous decisions held that, it is largely one of fact, and for Page 16 of 23 determining the question no absolute formulas or acid test, can be laid which would uniformly applicable in all situations. Having said so, the Apex Court spelt out the following six circumstances which can be taken as a guide to determine the nature of transaction:
"(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 of 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.( Jayadayal Poddar v. Bibi Hazra, SCC P.7 para-6)
14. The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless, the source from where the purchase money came and the motive why the property was purchased benami are by far the most important tests for determining whether the sale standing in the name of one person, is in reality for the benefit of another. We would examine the present transaction on the touchstone of the above two indicia."
[33] Keeping in mind the aforesaid propositions, in the case in hand, it transpires that, firstly, the husband-defendant, the appellant herein, had purchased the suit property from his known source of income and secondly, after such purchase both the plaintiff and the defendant used to possess the suit property as husband and wife. Thirdly, the motive for inclusion of name of the plaintiff is not clear though the defendant has stated that the suit property was purchased for his own benefit. Fourthly, it is quite evident in the instant case, that both the plaintiff and the defendant were the husband and wife and the Old Act permits the husband to purchase any property in the name of his wife or in joint names. Fifthly, the custody of the title deed undisputedly lies with the defendant-husband which would be revealed from the fact that the plaintiff-wife has produced the certified copy of the sale deed. Sixthly, stating the conduct of the parties, it reveals that the relationship between the plaintiff-wife and the husband-defendant became strange and the Page 17 of 23 defendant, according to the plaintiff, had driven her out from the suit property.
[34] It is no more res integra that intention of the parties is the essence of the Benami transaction and money must have been provided by the party invoking the doctrine of Benami [Binapani Paul v. Pratima Ghosh & Another, reported in (2007) 6 SCC 100; AIR 2008 SC 543]. In the instant case, a close scrutiny of evidence of both the plaintiff and the defendant, I do not find any concrete material to come to a definite finding about the apparent intention of the husband-appellant to include the name of his wife in the sale deed except his testimony that he purchased the suit property for his own benefit and included the name of his wife only on consideration that she was his wife. Needless to say, that the relationship between the husband and the wife cannot be survived without confidence and trust as such relationship is based wholly on trust upon each other.
[35] Here, I may gainfully refer the judgment of the Apex Court in Sm. Khabirannessa Bibi vs. Sudhamoy Bose, reported in AIR 1958 Cal 733, wherein, it was held that when there is no clear evidence of motive for creation of benami, then, naturally the source of the consideration money assumes paramount importance and the material enquiry seems to be as to who supplied the money for the acquisition of the disputed land.
[36] Creation of record of right in joint names immediately after sale transaction is a mere consequence of such transactions, which, alone cannot be the determinative factor to decipher the intention of the husband that wife‟s name had been included in the sale deed for her Page 18 of 23 benefit, if an overview of the entire circumstances does not meet the other factors/essentialities for giving the transaction a benami colour.
[37] In view of the aforesaid legal discussions, I can un- hesitantly arrive at a finding that the wife-plaintiff, in the instant case, has not acquired any substantive right since she had no role to pay the consideration money to effectuate the sale transaction and no clear motive has been surfaced for inclusion plaintiff‟s name in the questioned sale deed (Exbt.6 series).
[38] The question, whether the transaction which was entered into in the year 2007 would be governed by the New Act which came into force w.e.f.01.11.2016. The answer, I find in Sub-section-3 of Section-1 of Chapter-I of the new Act which reads as under:
"The provisions of Sections-3, 5 and 8 shall come into force at once, and the remaining provisions of this Act shall be deemed to have come into force on the 19th day of May, 1988.
A plain reading of Section-1(3), in my opinion, makes it aptly clear that barring Sections-3, 5 & 8, all other remaining provisions that include Section-2(9)(a) and Exception Clause (iii) of the New Act shall operate retrospectively. I have already quoted Section-2(9)(a) and Exception Clause (iii) of the New Act. It needs to be quoted Sections-3, 5 and 8 for better appraisal.
"3. Prohibition of benami transactions.--(1) No person shall enter into any benami transaction.
27[* * * * *].
8[(2)] Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
9[(3) Whoever enters into any benami transaction on and after the date of commencement of the Benami Transactions (Prohibition) Amendment Act, 2016 (43 of 2016) shall, notwithstanding anything contained in sub-section (2), be punishable in accordance with the provisions contained in Chapter VII.] (4)10 [****] Page 19 of 23
5. Property held benami liable to confiscation- Any property, which is subject matter of benami transaction, shall be liable to be confiscated by the Central Government.
8. Composition of Authority- An adjudicating Authority shall consist of a Chairperson and at least two other members."
[39] A plain reading of those provisions clearly manifests that Sections-3, 5 prescribes penalty for benami transactions, confiscation and Section-8 prescribes the composition of the adjudicating authority. There cannot be any debate in the Bar that Benami Transactions (Prohibition) Act, 1988 i.e. the old Act was not given retrospective effect and was held to be prospective Act by a long line of decisions of the Apex Court, since by operation of the Old Act it was seemed to be taken away the substantive right of the beneficiaries of benami transactions. Further, by using the word „at once‟, in my opinion, the legislature intended that these penal provisions shall operate perspectively i.e. w.e.f. 01.11.2016 and that makes the Act very clear that Section-2(9)(a) and Exception Clause incorporated beneath the Section-2(9((b) has been given retrospective effect and thus, the questioned transaction (Exbt.6 series) in the present case, would be governed by the New Act as it falls within the purview of Exception Clause as contemplated under Section 9(A)(iii) of the New Act and is thus saved by the mischief of Section-3 of Chapter-II of the New Act and other penal provisions as envisaged under the New Act . [Emphasis supplied] [40] In the instant case, as I have already held, the plaintiff being the wife of the appellant-husband has not acquired any substantive right, and as a de facto owner, she has not accrued any substantive right. She cannot claim any right over the suit property against the title of the de jure owner/husband/defendant.
Page 20 of 23[41] I have also carefully read over the statement of Objects and Reasons amending the Act 43 of 2016 which are necessary to be reproduced herein:
"Statement of Objects and Reasons amending Act 43 of 2016- The Benami Transactions (Prohibition) Act, 1988 was enacted to prohibit benami transactions and the right to recovery property held benami. The said Act, inter alia, provides that (a) all the properties held benami shall be subject to acquisition by such authority in such manner and after following such procedure as may be prescribed; (b) no amount shall be payable for the acquisition of any property held banami; (c) the purchase of property by any person in the name of his wife or unmarried daughter for their benefit would not be benami transaction; (d) the securities held by a depository as registered owner under the provisions of the Depositiories Act, 1996 or participant as an agent of a depository would not be benami transactions.
2. During the administration of the Benami Transactions (Prohibition) Act, 1988, it was found that the provisions of the aforesaid Act are inadequate to deal with benami transactions as the Act does not (i) contain any specific provision for vesting of confiscated property with Central Government; (ii) have any provision for an appellate mechanism against an action taken by the authorities under the Act, while barring the jurisdiction of a civil Court; (iii) confer the powers of the civil court upon the authorities for its implementation; and (iv) provide for adequate enabling rule making powers.
3. In view of the circumstances stated above, comprehensive amendments to the Benami Transactions (Prohibition) Act, 1988 has become necessary in order to prohibit holding property in benami and restrict right to recovery or transfer property held benami. It is , therefore, felt necessary to bring comprehensive amendments to the Benami Transactions (Prohibition) Act, 1988 to deal with benami transactions, the Benami Transactions (Prohibition)Amendment Bill, 2015, inter alia, provides for the following namely-
(1) It defines a benami transaction and benami property and also provides for exclusions and transactions which shall not be construed benami-
(a) A benami transaction has been defined as-
(i) A transaction or an arrangement where a property is transferred to or held by a person and the consideration for such property has been provided or paid by another person and the property is held for the immediate or further benefit, direct or indirect, of the person providing the consideration;
(ii) A transaction or an arrangement in respect of a property carried out or made in a fictitious name;
(iii) A transaction or an arrangement where the owner of the property is not aware of or denies knowledge of such ownership;
(iv) A transaction or an arrangement where the person providing the consideration is not traceable or fictitious.Page 21 of 23
(b) Benami property is defined as any property which is the subject matter a benami transaction.
(c) Properties excluded from the definition of benami transaction are-
(i) Properties acquired out of the known sources of income of the Hindu undivided family which are held by a coparecener in a Hindu Undivided family;
(ii) Properties held by a person in fiduciary capacity;
(iii) Properties acquired out of the known sources of income by an individual in the name of spouse or in the name of any child of such individual;
(iv) Properties acquired out of the known sources of income in joint ownership with the brother or sister or any lineal ascendant or descendant.
The above transactions shall not be treated as benami transactions and accordingly shall not be subjected to any penal consequences. (2) It provides the consequences of entering into a prohibited benami transactions which are-
(a) Where any person enters into a benami transaction in order to defeat the provisions of any law or to avoid payment of statutory dues or to avoid payment to creditors, the beneficial owners, benamidar and any other person who abets or indices any person to enter into such benami transaction, shall be punishable with rigorous imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to a fine.
(b) A benami property shall also be liable for confiscation by the Adjudicating Authority.
(3)**************"
[42] The rule of reading and understanding a statute was stated by Tindal, CJ, in Sussex Peerage case in the following form:
"If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone, in such case, best declare the intent of the lawgiver."[ Sussex Peerage case (1844) 11 C-1 and F-85, P. 143; Shivram Anand Shiroor vs. Radhabai Shantram Kowshik Mrs. And Another, 1984 1 SCC 588, P. 592; AIR 1984 SC 786; M/S. Ansal Properties & Industries Ltd. vs. State of Haryana & Anr, (2009) 3 SCC 553, P.40]. The rule is also stated in another form: "When the language is plain and unambiguous and admits of only one meaning no question of construction of a statute arises, for the Act speaks for itself".Page 22 of 23
[43] I have given my thoughtful consideration to the submission of the learned counsel appearing for the plaintiff-(respondent-wife) that this Court in exercise of its jurisdiction under Article-100 of the CPC 1908, should not disturb the concurrent finding decreeing the suit in favour of the plaintiff as passed by both the courts below. In view of discussions enumerated hereinabove, this submission of the learned counsel appearing for the plaintiff merits no consideration, since both the courts below have misinterpreted and misconstrued the legal issues involved in the facts and circumstances of the present case. It is well- settled that when the courts below had returned a finding which is contrary to law and arrived at a perverse finding both on points of law and facts, this Court in exercise of its powers under Section-100 of CPC would have the solemn duty to set the law in its proper perspective.
[44] I have also given due consideration to the finding of the learned First Appellate Court that the defendant has not taken the plea of fiduciary relationship in his written statement which debars the defendant-appellant to take the advantage of Section-4(3)(b) of the old Act. In my opinion, this finding of the learned First Appellate Court suffers from misinterpretation of the provision for the reason that the question involving fiduciary relationship in the context of the present case constitutes a substantial question of law and being the same is a legal question, it is immaterial whether any plea was taken in his pleadings in the written statement.
[45] It is settled proposition of law that a statute has to be read in whole. On conjoint reading of both the old and new Act, the object and intent of the legislature is manifestly clear and unambiguous where it prohibits benami transactions and the right to such property held benami Page 23 of 23 with penal provisions for such benami transactions. However, while enacting the Act, the legislatures have kept in mind the practical scenario of the society where a spouse can purchase a property in the name of another spouse and also in the name of their child and consciously have exempted those individuals who were/are the participants of such transactions and such transactions were kept outside the purview of the Act and the Act is not intended to give banami colour to the transactions entered into between spouses.
[46] In view of the aforesaid legal and factual discussions, the instant appeal filed by the husband-defendant/appellant must succeed and accordingly, the present second appeal stands allowed. Consequently, the judgment and decree dated 27.04.2018 passed by the learned Addl. District Judge, Court No.4, Agartala, West Tripura in T.A. No. 31 of 2015 and consequently, stands set aside and quashed. The judgment and decree passed by the learned Civil Judge decreeing the suit in favour of the plaintiff stand set aside.
[47] Draw the decree accordingly. Send down the LCRs forthwith.
JUDGE A.Ghosh