Patna High Court
Rameshwar Mistry And Anr. vs Bebulal Mistry on 12 February, 1990
Equivalent citations: AIR1991PAT53, 1990(38)BLJR587, AIR 1991 PATNA 53, 1990 BLJR 1 587
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. This First Appeal at the instance of the defendants arises out of a judgment and decree dated 23-2-1984 passed by Shri D. N. Pathak, Special Subordinate Judge, Ranchi in Partition Suit No. 263 of 1982 whereby and whereunder the said learned Court decreed the plaintiff-respondent's suit for partition.
2. The plaintiff-respondent filed the aforementioned suit for partition claiming 1/2 share in respect of the properties in suit.
3. The relationship of the parties would appear from the Genealogical table as mentioned in Schedule A written at the foot of the plaint which is as follows :
GENEALOGY Sheotahal Mistri (died) __________________________________________|___________________________________ | | | Sukhlal Mistri Khublal Mistri Jagarnath Mistri (died) (died) diedissuless.
Ramkumar Mistri |
died Most Tetri
| died
| _____________________________|___________________________________
| | | | |
| Mahadeo Mistri Bali Mistri Babulal Mistri Rameshwar
| died died Plaintiff Mistri
| Defendant
| = Widow =Smt. Chaurashia No. 1
| | Devi
| | | =Smt. Jamni
| | Kunti Devi Devi Deft. 2
| |__________________________________________
| | |
| Ramchandra Mistri Mano Mistri.
|____________________________________________________
| | |
Kishori Mistri Baneshwar Daneshwar
Mistri. Mistri.
4. It is an admitted fact that the grandfather of the plaintiff Sheotahal Mistri executed a registered deed of Will dated 5-1-1938 in respect of two house properties which have been mentioned in items Nos. (i) and (ii) of Schedule B of the plaint jointly in favour of the plaintiff and the defendant No. 1. The plaintiff contended that thereafter the legatees of the said will i.e. he and defendant No. 1 came in joint possession of the aforementioned properties. It has further been asserted by the plaintiff that he constructed a house over the lands standing on M.S. Plot No. 636 Municipal Holding No. 312 situated at Tewari Tank Street, Ranchi.
5. It is further admitted that a partition suit was filed by Ram Kumar Mistri along with his sons in the Court of Subordinate Judge, Ranchi which was registered as Partition Suit No. 66 of 1961 wherein, inter alia, the plaintiff and the defendant No. I and their other brothers were impleaded as parties. The said suit ended in a compromise and a final decree in terms of the aforementioned compromise was passed on 16-2-1951. The said aforementioned will was executed by Sheolal Mistry dated 5-1-1938 (sic). The plaintiff has contended that the properties described in items Nos. (iii) and (iv) of the Schedule B appended to the plaint were purchased out of the joint family fund belonging to the plaintiff and the defendant No. 1. According to the plaintiff, although, the said properties stand in the name of defendant No. 2, she has no interest therein but in order to avoid future complication, she was impleaded as defendant No. 2 in the suit.
6. In the suit aforementioned, the plaintiff claimed 1/2 share in all the four items of the properties mentioned in Schedule B of the plaint.
7. In the aforementioned suit, a written statement was filed by the defendant No. 1.
In the said written statement, the defendant No. 1 contended that there is no unity of title and unity of possession in respect of items Nos. (iii) and (iv) of Schedule B to the plaint. The defendant No. 1 further contended that the plaintiff and the said defendant No. 1 had no title or possession in respect of the aforementioned properties namely Items Nos. (iii) and (iv) of Schedule B to the plaint as the said properties were self acquired properties of the defendant No. 2 having been purchased out of her own separate fund. It was further stated that the defendant No. 2 herself constructed a Pucca building and dug a well therein. The defendant No. I further stated that the defendant No. 2 has got her name mutated in the State of Bihar and has been paying rent to it.
8. It was further alleged in the said written statement that the market price of the said properties would be about Rs. 1,00,000/ - and unless the plaintiff pays ad valorem Court-fee thereon, the suit will not be maintainable.
9. Thedefendant No. I further contended that the suit is bad for partial partition as the plaintiff deliberately has not brought in common hotchpotch the properties which have been acquired out of the joint family fund in the name of the plaintiff on 5-11-1969 by virtue of two registered deeds of sale. The said properties have been described in Schedule A of the written statement.
10. It has further been contended that the plaintiff was the Karta of the joint family along with him and their mother had also been residing with them. According to the defendant No. 1, their mother died leaving behind gold ornaments and silver coins which are also in the custody and possession of the plaintiff and the same are also available for partition. The defendant No. 1, however, admitted that he and the plaintiff has equal share in the properties described in Items Nos. 1 and 2 of the Schedule B appended to the plaint.
11. The defendant No. 2 has filed a separate written statement in the aforementioned suit. She in her written statement contended that the properties described in Items Nos. (iii) and (iv) of the Schedule B appended to the plaint are her own properties and the plaintiff and the defendant No. 1 have got no interest in the same. It was further contended by the defendant No. 2 that the suit as framed was not maintainable and it was barred by adverse possession as also barred under the Proviso to Section 34 of the Specific Relief Act, It was further contended that unless the plaintiff pays ad valorem Court-fee on the market value of the properties, a simple suit for partition is hot maintainable.
12. On the basis of the aforementioned pleadings of the parties, the learned trial Court framed the following issues :-
"1. Is the suit as framed maintainable?
2. Has the plaintiff got any valid cause of action or right to sue in this suit?
3. Is the suit barred by law of limitation, adverse possession and ouster?
4. Is the suit barred Under Section 34 of the Specific Relief Act?
5. Is the suit hit by the principles of partial partition?
6. Is the suit bad for defect of parties?
7. Is the Court-fee paid sufficient in this suit?
8. Is there existence of unity of title and possession between the parties for all the suit properties?
8A. Are the properties purchased in village Ulatu vide Exts. 1 and 1 / a self-acquired properties of plaintiff or joint family properties of plaintiff or joint family properties as claimed by defendant No. 1?
9. Are the properties mentioned in Items Nos. III and IV of Schedule B of the plaint self-acquired properties of defendant No. 2 as claimed in this suit?
10. Is the plaintiff entitled to get a decree for partition, if so, in respect of which of the suit properties.
11. To what other relief or reliefs, if any, is the plaintiff entitled?"
13. The learned Court below, however, took up issues Nos. 3 to 10 together and arrived at the following findings-
(a) The plaintiff and the defendant No. 1 at all material times were joint and they continued to live jointly, so as to constitute a joint family despite partition of the joint family properties in the year 1967.
(b) The properties described in Items Nos. (iii) and (iv) of Schedule B are also joint family properties and the said properties were acquired in the name of the defendant No. 2 out of the joint family fund.
(c) With regard to the properties which are situated in village Utlatu as described in Schedule A of the written statement filed on behalf of the defendant No. 1, it was held that the said properties are self-acquired properties of the plaintiff. On the aforementioned finding, the learned Court below decreed the plaintiff-respondents suit.
14. Mr. P. K. Prasad, the learned counsel appearing on behalf of the appellant submitted at the outset that there cannot be any objection on the part of his client to partition the properties described in Items Nos. 1 and 2 of the Schedule B appended to the plaint. He, however, submitted that the suit filed by the plaintiff in respect of Items Nos. (iii) and (iv) of Schedule B appended to the plaint were not maintainable, inter alia, on the ground ;
(a) the defendant No. 2 being not a coparcener the plaintiff was bound to pay ad valorem Court-fee on the market value of the properties in suit and as the plaintiff failed and/ or neglected to pay the same, the suit was not maintainable;
(b) in view of the statements made in paragraphs 12 and 13 of the plaint, it must be held that according to the plaintiff, the defendant No. 2 was the benamidar of the j oint family and in this view of the matter, the suit barred under provisions of Benaral Transactions (Prohibition) Act, 1988;
(c) even on facts the plaintiff could not prove that the said properties were joint family properties.
15. Mr. Debi Prasad, the learned counsel appearing on behalf of the plaintiff-respondent, on the other hand, submitted that as the plaintiff has categorically pleaded that the properties mentioned in items Nos. (iii) and (iv) of the Schedule B appended to the plaint are joint family properties and thus no ad valorem court-fee was payable on the market value of the said properties.
The learned counsel further contended that in view of the fact that Benami transaction is not prohibited in respect of the purchase of a land by a husband in favour of his wife, in view of the provisions of Sub-section (2) of Section 3 of the Act, the defendant No. 1 being the husband of the defendant No. 2, the purported benami transaction having been done by the defendant No. 2 as a member of the joint family in the name of his wife, the same is saved under Sub-section (2) of Section 3 of the said Act.
16. The learned counsel further submitted that the learned court below has rightly held that even after partition which took place in the year, 1967, the plaintiff and the defendant No. 1 continued to have a joint business and thus there was a nucleolus of the joint family which was sufficient for acquisition of the said properties by the joint family.
Re-question No.(1):
17. Under the Hindu family, a female cannot be a member of coparcenary governed under the Mitakshra School of Hindu Law.
18. The defendant No. 2 is the wife of defendant No. 1 and during the lifetime of defendant No. 1, she cannot also be said to be a member of the joint family.
19. Whenever in a suit for partition, an alienation standing in the name of a stranger to the joint family is questioned on the ground that the same is a joint family property, the same would require independent declaration of title not necessarily connected with the relief of partition.
20. It is true as has been observed by the learned court below that in determining the question as to whether the plaintiff is bound to pay ad valorem court-fee or not, the allegations made in the plaint only are only necessary to be considered, as has been held by the Patna High Court in Ramautar Sao v. Ram Gobind Sao reported in AIR 1942 Pat 60; but it is also well settled that a dextanity (dexterity?) on the part of the counsel of a party in drawing up a pleading cannot be taken undue advantage of, for the purpose of evading the court fee stamps.
In Mt. Rupia v. Bhatu Mahton reported in AIR 1944 Pat 17, a Full Bench of this Court, after considering the decision reported in AIR 1942 Pat 60 held as follows :- (at page 23 of AIR 1944 Pat):-
"But the dexterity of the person drawing up the pleadings avoiding the use of certain words in the plaint which would make the relief a consequential one, should not determine the amount of court-fee payable on the plaint. The court-fee is dependent not on the form of the pleadings, but on the real substance of the relief claimed."
21. From a perusal of the plaint, it is evident, the plaintiff categorically pleaded that the properties described in items Nos. (iii) and (iv) of Schedule B appended to the plaint belonged to the joint family and the defendant No. 2 being a benamidar, she had no right, title and interest therein.
22. Apparently, therefore, the defendant No. 2, who even according to the learned court below has been held to be a necessary party was impleaded in the said suit wherein, her title in respect of the said properties was questioned. In this circumstances, in my opinion, ad valorem court fee was payable.
23. In Tejpal Saraogi v. Mahadeo Lal reported in AIR 1951 Pat 526, this Court held as follows:- (at page 527 of AIR 1951 Pat).
"It cannot, therefore, be said that any incidental finding of fact is necessary in order to give the main relief which the peters, claim, so for as the stranger-alienees are concerned. Either the petnrs, are claiming no adjudication against the stranger alienees or they are claiming an adjudication to displace their title. As there can be no relief of partition against the strangers, the only relief claimed against them is the displacement of their title based on the transfers made in their favour. That would undoubtedly be an independent declaration of title not necessarily connected with the relief of partition. If no relief is claimed against the strangers, then they should not have been made parties to the litigation. It seems to me that so far as the stranger-defts, are concerned, the suit is, in substance, a suit for a declaration of title, and the learned Subordinate Judge rightly held that the suit was a suit for title in the guise of a partition suit."
24. The Patna High Court again in a decision in Kaulasan Singh v. Ramdut Singh, reported in AIR 1951 Pat 633, after considering various decisions held that ad valorem Court-fee is payable when the properties stand in the name of a stranger to the coparcenary.
25. In the said decision, the Division Bench of this Court proceeded to observe :
"If a plaint by necessary implication contain a prayer for adjudication on a question of title, then clearly the proper Court-fees must be paid for in respect of that adjudication. In the present case the prayer for adjudication on this question of benami is most clearly present by necessary implication. Indeed it might almost be called express. In para 3 of the plaint, it is recited that owing to the common ancestor, Babu Narain Singh, being a Government servant, transactions were not carried in his name in spite of his being the karta, but properties were purchased in the names of the two ladies in question. Nevertheless, all the members of the joint family had been in possession of those properties, and those properties constituted the joint family properties in which the plaintiffs had one third share. Here is a quite clear allegation of benami, and in the relief portion of the plaint it is asked that on adjudication of the above facts the plaintiffs' share to the extent of one third in the properties sought to be partitioned may be got partitioned by deputing a Commissioner. The plaintiffs have quite clearly asked for an adjudication of this question of title and indeed they had to get an adjudication of that question before partition of such properties could be ordered."
26. From a conspectus of the decisions as referred to hereinbefore, it is absolutely clear that as in this case also, the plaintiff contended that the properties held in the name of the defendant No. 2 was the joint family properties and she has no right, title and interest therein, ad valorem Court-fee was payable.
27. In this view of the matter, there cannot be any doubt that a simple suit for partition was not maintainable in respect of items Nos. (iii) and (vi) of Schedule B appended to the plaint unless the plaintiff paid the ad valorem Court-fee on the market value of the said property.
Re-contention No. 2:
28. As noticed hereinbefore, the principal question which arises in this case is as to whether the properties described in Items Nos. (iii) and (iv) of the Schedule B appended to the plaint are benami in nature or not. The plaintiff, in paragraph 13 of the plaint alleged as follows :-
"That lands situated at village Jorar, P. S. Namkum, District Ranchi more fully described in Items Nos. (iii) and (vi) of Schedule B to the plaint have also been purchased out of joint family funds belonging to the plaintiff and defendant No. 1. Although the deeds stand in the name of defendant Np. 2, she has no interest in the said properties but in order to avoid future complication she is being made defendant No. 2 in this suit. The plaintiff and defendant No. 1 are also coming in joint possession of the properties mentioned in Items Nos. (iii) and (vi) of Schedule B to the plaint."
29. From the allegations made in paragraph 13 of the plaint, it is clear that it is not the case where a property has been acquired by the joint family in the name of a coparcener.
30. According to the plaintiff himself, the defendant No. 2 had no right, title and interest in the property.
31. Benami Transaction Act, 1988 was enacted, inter alia to prohibit benami transactions.
Section 2(a) of the aforementioned Act defines benami transaction to mean :
"Benami Transaction" means any transaction in which property is transferred to one person for a consideration paid or provided by another person."
32. Sections 3 and 4 of the said Act read as follows:-
"Section 3. Prohibition of benami transaction:
(1) No person shall enter into any benami transaction, (2) Nothing in Sub-section (1) shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter.
(3) 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.
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under this section shall be non-cognizable and bailable."
"Section 4. Prohibition of the right to recover property held benami:
(I) No suit, claim or action 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 person claiming to be the real owner of such property.
(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 on behalf of a person claiming to be the real owner of such property:
(3) Nothing in this section shall apply.
33. In Mithilesh Kumari v. Prem Behari Khara reported in AIR 1989 SC 1247, the Supreme Court held that Section 4 of the aforementioned Act applies also to a pending suit and an appeal. In the aforementioned decision, the Supreme Court held that as the said statute is a disqualify in one. So far as the maintainability of the suit is concerned, the same will have retrospective operation. The same view has been taken in Velayudhan Ramkrishnan v. Rajeev reported in AIR 1989 Ker 12, AIR 1989 Ker 286 (Chaliloth Theroth Mahanan v. Chaliloth Yesoda) AIR 1989 Cal 253.
34. Recently in SectionA. No. 178 of 1976 (R) Smt. Radha Devi v. Kisuralia Kaharin disposed on 20-9-1978, it has been held by me that if a case comes within the purview of Section 3 of the said Act, Section 4 will not operate as a bar in the maintainability of the suit.
35. in the instant case, Section 3(2) of the said Act has no application. By reasons of the provisions of the said Act, the Parliament intended to bring on statute book the doctrine of advancement which was not prevalent in this country.
36. An acquisition of property in the name of his wife of a coparcener by the joint family will, in my opinion, constitute a benami transaction and will not be saved under Section 3(2) of the said Act.
From a bare perusal of Section 4(3) of the said Act, it is evident that even such a case is not protected thereunder.
37. In this view of the matter, in my opinion, it has to be held that the suit filed by the plaintiff in respect of Items Nos. (iii) and (iv) of the Schedule B appended to the plaint was barred under the Provisions of Benami Transaction (Prohibition) Act, 1988.
38. In the result, the appeal is allowed in part and it is declared that the plaintiff-respondent is entitled to partition in respect of 1/2 share only in relation to items Nos. (i) and (ii) properties described in Schedule B of the plaint.
However, in the facts and circumstances of the case, there will be no order as to costs.