Patna High Court - Orders
Umesh Yadav & Ors. vs Naresh Yadav & Ors. on 30 July, 2013
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
Patna High Court SA No.359 of 2012 (5) dt.30-07-2013
1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.359 of 2012
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Umesh Yadav & Ors.
.... .... Appellant/s
Versus
Naresh Yadav & Ors.
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Abhishek
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR
SAHOO
ORAL ORDER
5 30-07-2013(1) Heard the learned senior counsel, Mr. Dhruv Narain appearing on behalf of the appellants and the learned counsel, Mr. Khatim Reza on behalf of the respondent nos.5 and 6 and the learned counsel, Mr. Syed Firoz Reza appearing on behalf of respondent nos.1 to 4 under Order XLI Rule 11 C.P.C.
(2) The defendants-respondents-appellants have filed this Second Appeal against the judgment and decree dated 02.07.2012 passed by the learned Adhoc Additional District Judge I, Nalanda at Biharsharif in Title Appeal No.37 of 2010 whereby the Lower Appellate Court allowed the appeal and reversed the judgment of the trial court dated 29.06.2010 passed by the learned Subordinate Judge I, Biharsharif in Title Suit No.29 of 2005.
(3) The plaintiff-respondent nos.1 to 4 filed the aforesaid title suit for partition to the extent of 1/4 th share in the suit property.
Patna High Court SA No.359 of 2012 (5) dt.30-07-20132
(4) The defendant nos.1 and 2 who are respondent nos.5 and 6 have filed written statement admitting the case of the plaintiff. The defendant no.3 who is the appellant filed contesting written statement alleging that the plaintiff and defendant nos.1 and 2 have collided and intentionally they have not included the joint family property at Khandak Par, Doctor's Colony, Biharsharif detailed in the Schedule of the written statement which was purchased in the name of defendant no.2, Sahodari Devi. Therefore, the plaintiff's suit for partition is bad for partial partition and the said property standing in the name of Sahodari Devi be also partitioned.
(5) The trial court after considering the material available on record, the documentary evidences as well as oral evidences came to the conclusion that the property standing in the name of Sahodari Devi is also the joint family property and the plaintiff's suit is bad for partial partition and accordingly, dismissed the plaintiff's suit.
(6) The plaintiff-respondent nos.1 to 4 filed title appeal before the Lower Appellate Court. The Lower Appellate Court recorded the finding that the claim of the defendant no.3 to the effect that the property standing in the name of Sahodari Devi, the defendant no.2 is barred under the provision of Section 4 of the Patna High Court SA No.359 of 2012 (5) dt.30-07-2013 3 Benami Transactions (Prohibition) Act, 1988. Therefore, the Lower Appellate Court further held that the plaintiff's suit is not bad for partial partition. The Lower Appellate Court categorically recorded the finding that it is the self-acquired property of defendant no.2, Sahodari Devi.
(7) The learned senior counsel, Mr. Dhruv Narain appearing on behalf of the appellants submitted that the Lower Appellate Court has wrongly held that the appellant's claim that the property is joint family property is barred under the provision of Benami Transactions (Prohibition) Act. According to the learned counsel, the defendant no.2 had no source of income and even she had not produced any Bank account and she admitted in her evidence that she had no Bank account and further the property in question was purchased by the joint family out of the sale proceeds of the three plots which was sold prior to the purchase of the property in question in the name of defendant no.2, Sahodari Devi. All these evidences were produced before the trial court and on the basis of these evidences, the trial court recorded the finding that the property purchased in the name of defendant no.2, Sahodari Devi is the joint family property purchased out of the income of the joint family but the Lower Appellate Court without appreciating these facts in their right Patna High Court SA No.359 of 2012 (5) dt.30-07-2013 4 perspective, set aside the finding of the trial court on the ground that the claim of the appellant is barred under the provision of Benami Transactions (Prohibition) Act. According to the learned counsel, in the present facts and circumstances of the case, the claim of the defendant will not be barred under the provisions of Benami Transactions (Prohibition) Act.
(8) On the other hand, the learned counsel appearing on behalf of the plaintiff submitted that in fact, the property is the self-acquired property of mother of the parties, therefore, the plaintiff did not include the property in the partition suit and during the lifetime of mother, the sons or the husband have no right or title in the property. Since it is the property acquired by the mother, Sahodari Devi, therefore, the appellants have also got no share.
(9) The learned counsel, Mr. Khatim Reza appearing on behalf of the defendant nos.1 and 2 submitted that the property is the self-acquired property of defendant no.2 which she has purchased out of her "streedhan" and, therefore, the appellant has to prove the case that it was the joint family property and moreover, according to the learned counsel, the claim of the defendant against defendant is not maintainable. According to the learned counsel, no counter-claim has also been filed. Patna High Court SA No.359 of 2012 (5) dt.30-07-2013 5
(10) For better appreciation, the plaintiff's case may be stated hereunder. One Ramlal Gope had a son Laxman Gope. Laxman Gope had three sons namely Rajendra Yadav, Suresh Yadav and Sripal Yadav. The plaintiffs and the defendants belonged to the branch of Suresh Yadav. Since there was partition between three brothers, in compromise in Title Suit No.144 of 1978, the other brothers of Suresh Yadav have no concern. The defendant no.1 is Suresh Yadav whereas defendant no.2 is his wife, Sahodari Devi. The plaintiff no.1 is the first son of Suresh Yadav. The other defendants represent the other descendants of Suresh Yadav.
(11) It is admitted fact that the property in Doctor's Colony, Biharsharif is standing in the name of Sahodari Devi, defendant no.2. She is the mother of plaintiff no.1 as well as the appellant no.1, Umesh Yadav who was defendant no.3 in the court below. From perusal of the Lower Appellate court judgment, it appears that the Lower Appellate Court considering the provision of Section 3 and 4 of the Benami Transactions (Prohibition) Act recorded the finding that the claim of the defendant no.3 is barred by the Benami Act.
(12) Section 4 of the Benami Transactions (Prohibition) Act, 1988 reads as follows:
Patna High Court SA No.359 of 2012 (5) dt.30-07-20136
"4. Prohibition of the right to recover property held benami- (1) 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 a person claiming to be 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,-
(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or
(b) 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 he stands in such capacity.
(13) In view of the above provision, according to Sub Section (3) of Section 4, this prohibition provided under Section 4 will not be applicable where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family. It is not the case of the defendant that the mother is also a coparcener. It is settled principles of law that a female member is never considered as a coparcener in an undivided Hindu family. Patna High Court SA No.359 of 2012 (5) dt.30-07-2013 7
(14) In the case of Nand Kishore Mehra v. Sushila Mehra, AIR 1995 Supreme Court 2145, the Hon'ble Supreme Court has held that if the property is standing in the name of wife, the prohibition under Section 4 will not be applicable because it is saved under Section 3. Here, it may be mentioned that the defendant no.1 who is husband is not claiming the property to be his property. On the other hand, the claim of the appellant is that the property is the joint family acquisition. In the aforesaid decision, the Hon'ble Supreme Court held that although, prohibition under Section 4 will not apply but it has to be made clear that when a suit is filed or defence is taken in respect of such benami transaction involving purchase of property by any person in the name of his wife or unmarried daughter, he cannot succeed in such suit or defence unless he proves that the property although purchased in the name of his wife or unmarried daughter, the same had not been purchased for the benefit of either the wife or the unmarried daughter, as the case may be, because of the statutory presumption contained in sub-section (2) of Section 3 that unless a contrary is proved that the purchase of property by the person in the name of his wife or his unmarried daughter, as the case may be, was for her benefit. Now, therefore, in view of the aforesaid settled principles of law even if the property is purchased by the Patna High Court SA No.359 of 2012 (5) dt.30-07-2013 8 husband in the name of the wife, the onus/burden is on the husband to prove that the property was purchased not for the benefit of the wife. From perusal of the trial court judgment, it appears that the trial court placed the onus on the mother Sahodari Devi, defendant no.2 to prove that the property has been purchased out of her "streedhan" and recorded the finding that Sahodari Devi failed to prove that it was her self-acquired property. In my opinion, in the facts and circumstances of the case, here since the defendant-appellant is claiming that the property is joint family property and admittedly, the property stands in the name of Sahodari Devi, the claim of the appellant is barred under Section 4 of the Benami Transactions (Prohibition) Act. The Lower Appellate Court has, therefore, rightly held so.
(15) Further, the question that whether the property is self-acquired property or joint family property is purely a question of fact and that cannot be agitated in second appellate jurisdiction as has been held by the Hon'ble Supreme Court in the case of Narendra Gopal Vidyarthi vs. Rajat Vidyarthi, (2009) 3 Supreme Court Cases 287.
(16) It may be mentioned here that the plaintiff has filed the suit for partition claiming 1/4th share. The plaintiff did not include the property in question which is in the name of Patna High Court SA No.359 of 2012 (5) dt.30-07-2013 9 Sahodari Devi as the subject matter of partition suit. The defendant has filed the written statement taking a plea that the property standing in the name of defendant no.2 is the joint family property but it has not been included by the plaintiff. Therefore, the claim of the defendant no.3 is directed against defendant no.2, the mother. Therefore, this is inter se dispute between defendant no.3 and defendant no.2. The plaintiff is admitting the fact that it is the self-acquired property of the mother. It may be mentioned here that in the case of Rohit Singh & Ors. vs. State of Bihar(Now State of Jharkhand) & Ors., 2007(1) PLJR 232 Supreme Court, the Hon'ble Supreme Court has held that a counter-claim though based on a different cause of action than the one put in suit by the plaintiff, could be made but it has necessarily to be directed against the plaintiff, though incidentally or alongwith it, it may also claim relief against co-defendants in the suit. But a counter-claim directed solely against the co- defendants cannot be maintained. By filing a counter-claim the litigation cannot be converted into some sort of an inter-pleader suit. In the present case, it may be reiterated that the plaintiff did not include the suit as subject matter saying that it is the self- acquired property of defendant no.2, the mother. The mother is claiming the same to be her self-acquired property. The defendant Patna High Court SA No.359 of 2012 (5) dt.30-07-2013 10 no.3 filed the written statement alleging that in fact, it is the joint family property. Therefore, this dispute is nothing but a direct claim against the defendant no.2. Even if it is termed as counter- claim although, no counter-claim has been filed, then also this claim is not maintainable by the defendant no.3 against the defendant no.2.
(17) So far the finding of the trial court to the effect that the suit is bad for partial partition is concerned also, it is not sustainable in view of the decision of the Hon'ble Supreme Court reported in AIR 1961 Supreme Court 1077 read with Article 328 of the Hindu law by Mullah 16th edition and Article 327 Hindu law by Mullah, 20th edition and moreover, it has been found that the property is the self-acquired property of Sahodari Devi, therefore, none of the points raised by the learned counsel for the appellants is substantial question of law. In my opinion, therefore, no substantial question of law is involved in this Second Appeal and accordingly, this Second Appeal is dismissed at the admission stage itself.
(Mungeshwar Sahoo, J) Saurabh/-