Calcutta High Court (Appellete Side)
Anil Baran Bhattacharjee vs Sunil Baran Bhattacharjee & Ors on 24 June, 2014
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya.
IN THE HIGH COURT AT CALCUTTA
APPEAL FROM ORIGINAL DECREE
Appellate Side
Present
The Hon'ble Mr. Justice Jyotirmay Bhattacharya.
And
The Hon'ble Mr. Justice Ishan Chandra Das.
F.A.NO. 115 OF 1990
Anil Baran Bhattacharjee
Versus
Sunil Baran Bhattacharjee & Ors.
For the Appellant : Mr. Jahar Lal De,
: Mr. Apruba Kumar Ghosh.
For the Respondent No. 1 : Mr. P. B. Sahoo,
: Mr. Sudhakar Biswas.
Heard on : 14/3/2014, 21/3/2014, 28/3/2014 & 6/6/2014. Judgment on : 24.06.2014 Ishan chandra Das, J.
This First Appeal is directed against the preliminary decree passed by the Learned Assistant District Judge, 3rd Court at Midnapore on 14th July, 1987 in the partition suit being Title Suit No. 24 of 1983, filed by the plaintiff/respondent No.1 herein. Originally the said suit which was filed before Learned Assistant District Judge 1st Court, Midnapore was registered as T.S No. 8 of 1982 and subsequently on transfer of the same to the Court of the Learned Assistant District Judge, 3rd Court, Midnapore for disposal, it was renumbered as T.S. No 24/ 1983.
The parties are closely related to each other. The plaintiff, namely, Sunil Baran Bhattacharjee is the son of defendant No. 2, namely, Smt. Khemankari Devi. Anil Baran Bhattacharjee is the other son Smt. Khemankari Devi. The Defendant No. 5, namely, Shri Sitaram Chakraborty is the husband of the predeceased daughter of Smt. Khemankari Devi, namely Krishna. Defendant Nos. 3 and 4, namely, Shri Tapas Kumar Chakraborty and Kumari Rinku Chakraborty respectively, are the son and daughter of the predeceased daughter of Smt. Khemankari Devi, namely, Krishna. The plaintiff filed the suit claiming his 1/4th share in respect of the suit properties. The plaintiff's claim of his 1/4th share in the suit property in schedule 'Ga' to 'Una' which he inherited through his father on his death is not disputed as admittedly, those properties belonged to the father of the plaintiff. Dispute was with regard to 'Ka' schedule and 'Kha' schedule properties. The plaintiff asserted that Amulya Ratan Bhattacharjee, the father of the plaintiff was a Pandit of a Tole run under the name & style 'Sibakali Chatuspathi'. He also used to practice Ayurvedic medicine and was also a professional priest and had immovable properties. He, thus, used to earn considerable amount from the above sources. The plaintiff claims that the property described in the schedule 'Ka', as referred to above was purchased by his father but in the name of his mother Khemankari Devi and this was done by the plaintiff's father for avoiding future complications with plaintiff's uncle so that he cannot claim any interest in the said property by treating the same as property belonging to the joint family (consisting of grand father and uncle of the plaintiff). The plaintiff thus claims that the defendant No. 2, namely, Khemankari Devi was the ostensible owner or benamder of her husband, namely, Amulya Ratan Bhattacharjee in respect of 'Ka' schedule property. It is further alleged by the plaintiff that his father paid rent & municipal taxes in respect of the said property during his life time even though the said property was mutated in the name of the defendent no. 2, Khemankari Devi. It was further alleged by the plaintiff that the defendant no. 2, Khemankari Devi, did not have any independent source of income nor she had stridhana like gold ornaments for purchasing the schedule 'Ka' property, rather she was fully dependent on her husband's income. The Plaintiff further claims that Amulya Ratan, the father of the plaintiff sold some properties at Hirasagar, Kantapukuria and Gopalpur and purchased the 'Ka' schedule property having a dilapidated structure with tin shed, kitchen etc, therein. It was further alleged by the plaintiff that apart from the said property, Amulya Ratan used to possess the 'Kha' schedule property, hostile to the title of the real owner and acquired title by adverse possession. The plaintiff further claims that the defendant No.1 or 2 never contributed to the construction of their dwelling house rather the father of the plaintiff contributed the entire fund for construction of the house on the said 'Ka' schedule property. The defendant No. 2, Khemankari Devi was affectionate to her eldest son, the defendant No. 1. Amal Bhattacharjee, the youngest son of Khemankari Devi, predeceased his father and after the death of Amal , (who died on July 10, 1974), his mother, namely Khemankari Devi, lost her mental balance and taking advantage of such helplessness, the eldest son of Khemankari Devi along with his sister, Krishna, since deceased, managed to execute a deed of gift from Khemankari Devi, in respect of the 'Ka' schedule land with a view to defraud the plaintiff as the plaintiff was absent at his residence at 'Ka' schedule land as at the relevant time he had to stay at his in‐ law's house to look after his pregnant wife. The defendant no. 1, never contributed any fund for the purpose of construction of his ancestral dwelling house. At the material time Amulya Ratan was staying at Entally, Kolkata and he was not aware of the factum of execution of any such deed of gift by Khemankari Devi in favour of Anil Baran Bhattacharjee, the defendant no. 1 & his sister Krishna. It is alleged that Khemankari Devi did not have any right to execute any deed of gift in favour of her eldest son Anil and her daughter Krishna. Amulya Ratan used to possess the entire land described in the schedule 'Ka' and 'Kha' of the plaint and after his death, interest in the disputed properties devolved upon his legal heirs. The plaintiff having undivided share in the disputed property claimed his share therein but the contesting parties refused to give him any share in the 'Ka' and 'Kha' schedule property on the plea that the defendant no. 2, Khemankari Devi executed the deed of gift in their favour and they forced the appellant to take recourse of the law for seeking redress.
The defendants no. 1 & 2, who are the Appellants No.1 & 2 herein, filed a written statement and an additional written statement to contest the Original Suit and denied the title of Amulya Ratan in respect of the properties referred to in 'Ka' and 'Kha' schedule of the plaint but admitted that the 'Ga' & 'Gha' schedule land belonged to him. They denied that Amulya Ratan had sufficient income to purchase the 'Ka' schedule land rather they claimed that 'Ka' schedule property was purchased by Khemankari Devi, who collected the consideration by selling her ornaments. It was averred in the said written statement that the paternal grandfather of Khemankari Devi was a resident of Chandannagar, Hooghly but he hailed from Pingla (Midnapore) previously. He was a rich man and he used to give huge financial assistance to Khemankari Devi for her survival at her matrimonial home. It was also averred in the said written statement that Khemankari Devi purchased the 'Ka' schedule land from her own stridhan and possessed the 'Kha' schedule land adversely by denying the title of the owner thereof and thus she acquired title in respect of 'Kha' schedule land by adverse possession as against others. In the additional written statement, defendants no. 1 & 2 also denied that Amulya Ratan had sufficient income from different sources, as averred in the body of the plaint to purchase the property.
The respondents no. 2 & 3 being the defendants no. 3 & 4 of the Original Suit filed a separate written statement, denying the material statements of the plaint and contended that the respondent no. 1 being the plaintiff of the Original Suit, did not have any locus standi to challenge the deed of gift dated 2/8/1974 in respect of 'Ka' schedule land. Thus by denying and disputing all the material averments of the plaint, the contesting defendants prayed for dismissal of the Suit.
On the strength of the rival pleadings of the parties, the Learned Trial Court framed 9 issues altogether and passed a decree in preliminary form in favour of the plaintiff/Respondent No.1 declaring his 1/4th share in the property and directed the defendants to give effect to such partition by metes and bounds within 60 days from the date of the order, failing which the plaintiff would be at liberty to apply for partition through Court by appointing a Commissioner who would give effect to such partition, keeping the existing possession intact as far as practicable. The Learned Trial Court also directed the parties to bear cost of the suit proportionately, according to their respective shares in the property.
Being aggrieved and dissatisfied by such a decree, the present appeal has been preferred.
Now, the point for consideration is whether the learned Trial Court was justified in passing a decree in favour of the plaintiff by declaring his 1/4th share in the property as referred to in the schedule of the plaint of T.S. No. 24of 1983 or not. Learned Advocate representing the appellant pointed out with reference to the schedule of the plaint that there was no dispute between the parties with regard to devolution of interest in respect of schedule 'Ga', 'Gha' & 'Una' of the plaint. Learned Advocate representing the appellant also submitted in course of his argument, with reference to the relevant averments of the written statement dated February 20, 1984, that Khemankari Devi acquired the property under schedule 'Ka' of the plaint by virtue of a sale deed dated May 31, 1949, executed by one Biku Chandra Dhal (Ext. -C) in her favour. With reference to the recital in the said deed (Page ‐3), he submitted that Khemankari Devi purchased the said 'Ka' schedule land from one Biku Chandra Dhal by virtue of the deed dated May 31, 1949, on payment of consideration collected by her from selling 'Stridhana', i.e. gold ornaments, etc. He also urged that learned Trial Court passed a decree for partition against his clients by wrongly placing the burden of proof upon them that they were under legal obligation to establish that the 'Ka' schedule property was not a 'benami' property. Relying on a decision of the Hon'ble Apex Court in Joydayal Podder vs. Mst. Bibi Hazra & Others, reported in AIR 1974 at page 171, he submitted that the burden of proving that a particular sale is benami and the apparent purchaser is not real, always rests on the person asserting it to be so. Clarifying the provision of Section 101 of the Evidence Act, 1872, he urged that the burden of proving a fact is always upon the person who asserts it. In this context, he relied on another decision of the Hon'ble Supreme Court in Rangammal vs. Kuppuswami and Another, reported in (2011) 12 SCC 220 and submitted that since the burden of proof has not been discharged by the plaintiff/respondent No.1, the transaction in favour of Khemankari Devi relating to the 'Ka' schedule property cannot be held to be a sham transaction. He contended that the defendants/appellants were under no obligation to prove that the transferee was simply a benamdar and not the real owner. His learned Counterpart, on the other hand, submitted with all fairness that the burden of proving a transaction to be a benami one is on the person who alleges the same to be benami but relying on a decision of the Hon'ble Apex Court in Smt. Rebti Devi Vs. Ram Dutt & Anr., etc reported in 1998 WBLR (SC) 17, he pointed out that the question of benami pales into insignificance when both parties adduce evidence in support of their respective cases. Criticizing the conduct of the appellant no. 1, he urged that the said witness though stated certain facts relevant to the subject matter in issue but his non appearance at the witness box may lead to certain adverse presumption about the genuineness of the deed, particularly when he was the eldest son and his mother was in his custody at the material time. In this context, he relied on a decision of the Hon'ble Supreme Court in Vidhyadhar vs. Manikrao and Anr reported in (1999) 3 SCC 573 (Para
17).
To advance his argument regarding the plea of 'benami transaction' in favour of Khemankari Devi, learned Advocate for the plaintiff confidently urged that the burden may shift to the person holding the property in dispute and opined that the case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts. The defendant no. 2, Khemankari Devi, in whose name the property was purchased, was examined as DW ‐1 on commission. She admitted that she was a Purdanashin lady and the reverse page of page 1 of the deed itself (Ext. - C) clearly reflects that the District Registrar, Midnapore, before whom the deed was registered, endorsed "Rupees Twelve hundred as consideration paid in my presence by Amulya Ratan Bhattacharjya to the executant." Such an endorsement on the deed in question speaks a volume in respect of the point in issue. The respondent no. 1/ plaintiff produced documentary evidence like Voter List of general election of Bangiya Sanskrit Siksha Parisad from Midnapore District (Ext. 9) where Amulya Ratan Bhattacharya was shown in the entry no. 21 as Pandit of 'Sibakali Chatuspathi' and the certificate (Ext. 5) being certificate no. 3294 issued by Paschim Bangha Ayurvedic Parishad showing that Amulya Ratan Bhattacharjee had been registered under the Paschim Bangha Ayurvedic System of Medicine Act, 1961 as an Ayurvedic Practitioner. These documents simply nullified the statement of the appellant that Amulya Ratan did not have sufficient income from different sources as stated in the plaint of T.S. 24 of 1983 to purchase property in the name of his wife Khemankari Devi. In view of the principle laid down by the Hon'ble Supreme Court in Iswar Dass Jain (dead) through L.R.S. vs. Sohan Lal (dead) through L.R.S., reported in (2000) 1 SCC 434 (Para 27) it can be presumed that Khemankari Devi was the ostensible owner of 'Ka' schedule property and such presumption can only be rebutted by strong evidence to the contrary which is practically nil. The fact that tax receipts were issued in the name of the wife or record of rights showed her name as the owner cannot be said to be of much importance. On the other hand, the evidence has been adduced on behalf of the plaintiff/respondent no. 1 that his father had considerable income from different sources, as pointed out earlier, and he had bank balance having considerable amount in the bank, etc. Such evidence led the learned Trial Court to infer certain facts in deciding the merit of the facts in issue. Learned Trial Court, in the impugned Judgment, categorically discussed all these points and came to the conclusion that Khemankari Devi, the defendant no. 2 was the benamdar of her husband and we do not find any reason, to differ from his views, rather it can safely be held that learned Trial Court came to a logical and legitimate conclusion to resolve this issue from the given facts and circumstances of the case and on the basis of the materials available on record.
So far as the properties referred to in schedule 'Kha' of the plaint was concerned, it was averred in the plaint of T.S. 24 of 1983 (Para 5) that Amulya Ratan, the predecessor in interest of the parties forcibly occupied the 'Kha' schedule property which was denied by the appellants/ contesting defendants. Since the 'Kha' schedule plot is adjacent to the 'Ka' schedule land, it was covered by a common compound wall and this was done by the plaintiff's father by denying the title of the real owner in order to protect the right of the plaintiff's father. We are unable to accept that such title by adverse possession in respect of the 'Kha' schedule land was acquired by Khemankari Devi who admitted herself to be a Pardanashin lady rather it was obvious that Amulya Ratan being the karta of the family, managed to do all these incidents for acquiring title in respect of the 'Ka' & 'Kha' schedule land. It is true that a suit was filed against Khemankari Devi by one Nagendra Nath Singha for recovery of possession but he could not come out successful ultimately and possession of Khemankari Devi was maintained all along but such a hostile action against the rightful owner for acquiring title by long adverse possession cannot be expected from a lady who was basically a pardanashin lady (as admitted in her oral testimony as DW‐1) without the active role of her husband. In the finding of the learned Trial Court with regard to the claim of the respondent no. 1/plaintiff, that his mother Khemankari Devi was none but the benamdar of his father, does not deserve interference and such claim is even protected by the provisions of Section 4(3) of the Benami Transactions (Prohibition) Act, 1988.
Though the title of the defendant No.2, Khemankari Devi was declared in respect of 'Kha' schedule property by way of adverse possession by the Civil Court still then we cannot be unmindful of the established principle of law that in the absence of any evidence to the contrary, it is to be presumed that a suit instituted by benamdar has been instituted by him with the full authority of the real owner, and any decision taken in the suit, is as much binding upon the owner as if the suit has been brought by the real owner himself. In this regard the reference may be made to the decision of the Hon'ble Supreme Court in the case of Ragho Prasad Gupta Versus Shri Krishna Poddar reported in AIR 1969 SC 316. Thus, if we follow the aforesaid principle of law laid down by the Hon'ble Supreme Court, we have no other alternative but to conclude that in fact, title of the real owner, namely, Amulya Ratan Bhattacharjee in 'Ka' schedule property was declared by the Court.
Another aspect which is left for consideration is that the legality of the deed of gift allegedly executed by Khemankari Devi in favour of the rest of the defendants (i.e. appellant no. 1 & the predecessor in interest of the respondents no. 2 to 4). It is curious to note that said Khemankari Devi while deposing as witness (being DW‐1 on commission) categorically admitted in her cross examination that she never consciously executed any deed of gift in favour of anybody. It is well settled that the burden of proof, that the donor, who is a pardanashin lady, executed the deed of gift voluntarily, is on the person who is benefitted by the transaction. Here the present appellant no. 1 being the defendant no. 1 of the Original Suit did not appear before the Court and the other donee (Krishna, the daughter of the so called donor) was dead at the material time. Hence, in the absence of any such evidence, the genuineness of the deed can be doubted and learned Trial Court in his judgment held that the deed of gift was a fictitious one. Finding of the learned Trial Judge as to the voidness of the deed of gift practically remains unchallenged. Though an omnibus ground is taken for challenging the said finding of the learned Trial Judge but such an issue was not seriously agitated before us in course of hearing, and Learned Advocate for the appellants on record showed a casual approach over this issue. Totality of the facts and circumstances of the case suggested that learned Trial Court discussed all the issues and came to a legitimate conclusion in deciding the merit of the suit. Now, as it was rightly pointed out by learned Advocate for the plaintiff/respondent no. 1 that the entire scenario has been changed after the death of Khemankari Devi who died on March 2, 2005 i.e. during pendency of the appeal.
Since the deed of gift allegedly executed in favour of the appellant no. 1 & his sister Krishna was held fictitious, the issue of benami transaction became redundant after the death of Khemankari Devi, the appellant no. 2 and the right, title and interest of the parties in the suit property as per Schedule 'Ka' to 'Una' of the plaint devolved upon them having equal share i.e. the appellant no. 1 having 1/3rd, the respondent no. 1 1/3rd and the respondents no. 2, 3 & 4 together acquired 1/3rd share (as heirs of Krishna, the predeceased daughter of Amulya Ratan).
Accordingly, we do not find any merit in the present appeal. However we find that in view of the demise of the mother viz., Khemankari Devi, during the pendency of the appeal, the preliminary decree passed in the said suit is required to be modified in the manner as aforesaid. We thus, modify the preliminary decree by declaring the plaintiff's share in 'Ka' to 'Una' properties to the extent of 1/3. Similarly we declare the share of the appellant to the extent of 1/3rd and the respondent Nos. 2, 3 & 4 have jointly inherited 1/3rd share in the 'Ka' to 'Una' schedule property.
Memo of appeal is sufficiently stamped.
Hence, ordered That the F.A. 115/90 stands allowed on contest against the respondent no. 1 and ex parte against the rest. The findings of the Learned Assistant District Judge, 3rd Court, Midnapore in T.S. 24/83 stands affirmed with a minor modification with regard to the shares of the parties as indicated in the concluding part of the judgment. The appellant no. 1 & the respondent no. 1 would get 1/3rd share each in the disputed properties and the rest of the respondents being respondents no. 2, 3 & 4 together would get 1/3rd share therein but the rest portion of the direction for effecting partition by metes and bounds contained in the preliminary decree remains unaltered.
The preliminary decree passed in the suit is modified accordingly. Consequently the final decree for partition, which was passed in the suit during the pendency of this appeal is unsustainable in law.
Let a copy of this Judgment along with the L.C.R. of T.S. No. 24 of 1983 be sent to Learned Trial Court immediately for finality of the partition suit by effecting such partition by metes and bounds in terms of direction of Learned Trial Court and for drawing up final decree consequently.
Urgent photostat certified copy of this judgment, if applied for, be supplied to the learned Advocates for the parties upon compliance of all formalities. (Ishan Chandra Das, J.) Jyotirmay Bhattacharya, J. :
I agree.
(Jyotirmay Bhattacharya, J.)