Kartick Chandra Dutta vs Nepal Chandra Mondal

Nikhil Nath Bhattacharjee, J.—The only question that calls for a decision in this appeal is whether the concurrent decisions of the trial Court and the lower Appellate Court that the property in suit purchased by Plaintiffs'' father in the benami of his wife stands annihilated by virtue of the prohibition to recover property held benami imposed by Section 4 of the Benami Transactions (Prohibition) Act, 1988, read with the Supreme Court decision in Mithilesh Kumar and Another Vs. Prem Behari Khare, .

On the factual aspects it appears that Plaintiff filed Title Suit ho. 288 of 1968 alleging, inter alia, that his father who was in the employment of P. & T. Department purchased the suit property in the benami of his wife Nirobala by a sale deed dated July 12, 1935, paying the consideration money and after purchase exercising acts of possession in the property by cultivating and enjoying the usufructs thereof. Subsequently, his father converted the danga land into a homestead and constructed residential house thereon at his own cost. The father died in or about 1939 leaving the Plaintiffs and Nirobala as his heirs. In 1949. Nirobala died and her limited interest devolved on the Plaintiffs. It was the Plaintiffs case that the Defendant No. 1 being his sister and facing difficulty in living in her matrimonial home was allowed to live in the house temporarily and after the death of her father-in-law the Defendant No. 1 left the disputed property. She has no interest in the disputed property. It, however, appeared that she had managed to record her name in the record-of-rights by misrepresentation. Subsequently, she executed two void and illegal kobalas in favour of the Defendants Nos. 2 and 3. By the said purchases the Defendants Nos. 2 and 3 got no interest and possession in the suit property. By filing the suit the Plaintiff prayed for declaration of his title, for further declaration that the RS record was erroneous and for permanent injunction against the Defendants Nos. 2 and 3 to restrain them from taking forceful possession of the suit property. The Defendant No. 1 as also the Defendants Nos. 2 and 3 contested the suit by filing two separate written statements. It was their common case that the maternal grand-father of the Plaintiffs and the Defendant No. 1 was a man of considerable means, that he gave money and ornaments to Nirobala at the time of her marriage and that the suit property was purchased by the Plaintiffs father with the stridhan of Nirobala, and as a result the property in dispute became Nirobala''s slridhan property. After the death of Nirobala it was the Defendant No. 1 who inherited the entire disputed property, but the Plaintiffs being in distress were allowed to possess some portion of the suit property and that the sale deeds in favour of the Defendants Nos. 2 and 3 in respect of some portion of the suit property were for valuable consideration. It was further contended that after purchase the Defendants Nos. 2 and 3 got possession in the disputed property.

The learned Munsif after taking down evidence of both sides and considering the same as also the facts and circumstances of the case came to the conclusion that the property in suit had been purchased by the Plaintiffs'' father in the benami of his wife and, accordingly, neither the Defendant No. 1 no the Defendants Nos. 2 and 3 by virtue of the sale deeds in question got any interest or possession in respect of any portion of the suit property and, accordingly, the learned Munsif decreed the suit declaring that the Plaintiffs got right, title, interest and possession in the suit property to the exclusion of the Defendants and the relevant RS record had been prepared wrongly. The Defendants'''' preferred an appeal and the learned lower Appellate Court came to an identical finding on an independent assessment of evidence on record and dismissed the appeal affirming the judgment and decree appealed against. '' -'' 4, The learned Advocate for the Appellant at the outset submitted that the findings of both the Courts below being concurrent he would not challenge the same but would like to pose the question for consideration of this Court, how far Section 4 of the Benami Transactions (Prohibition) Act. 1988, read with the Supreme Court decisions as referred to above would prohibit recovery of the disputed property admittedly held in benami by the Plaintiffs'' father. Section 4 of the Benami Transactions (Prohibition) Act, 1988, runs as follow:

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 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 act 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, for the benefit of the coparceners in the family ; or (b) whether 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.

Learned Advocate for the Appellant submitted that although the provisions of Sections 3, 5 and 8 came into force on the date of enforcement of the Act, namely, September 5, 1988, the remaining provisions of, the Act were deemed to have come into force on May 19, 1988, that there was no express provision in the statute about its retrospective operation, but the Supreme Court in the judgment referred to above laid down'' that the Act was retrospective in operation:

Section 4 clearly provided that 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 other person shall lie, by or on behalf of person claiming to be real owner of such property. This naturally related to past transactions as well. The expression any property held benami is not limited to any particular time, date or duration. Once the property is found to have been held benami, no suit, claim or action to enforce any right in respect thereof shall He. Similarly, Sub-section (2) of Section 4 nullifies the 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 in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. It means that once a properly is found to have been held benami,. the real owner is bereft of any defence against the person in whose name the property is held or any other person. In other words, in its sweep Section 4 envisages past benami transactions also within its retroactivity.

In the said decision the Supreme Court further held that an appeal being continuation of a suit, pendency of an appeal is to be taken as pendency of the suit and that the Appellate Court is entitled to take into account even facts and events which have come into existence after passing of the decree appealed against.

So Section 4 of the Benami Transactions (Prohibition) Act enforced during the pendency of the suit/appeal bars right to recover properly held benami, and the Supreme Court laid down that the bar is retroactive in operation, and in consequence the present suit for declaration that the purchase was made by the father in the benami of the mother is not maintainable as being statutorily prohibited.

On the other hand, the learned Advocate for the Plaintiffs-Respondents by referring to Sub-section (3)(b) of Section 4 of the Act argued that this case comes within the purview of the exception provided in the section and, accordingly, does not call for any interference by this Court on that score. It was submitted that the expression "or other person standing in a fiduciary capacity" appearing in the said Sub-section should be taken as contemplating the relationship of husband and wife and, accordingly, the instant purchase by the husband in the benami of his wife should be treated as covered by the exception. That the argument on the fact of it is falacious is evident from the fact that in this case it was not the husband who purchased in his own name with his wife''s money and so the question of husband standing in ''such capacity'' to the benamdar would not arise. Then again, according to Black''s Law Dictionary, the expression ''fiduciary'' means a person holding the character of a trustee or a character analogous to that of a trustee, having duly created by his undertaking to act for another''s benefit in matters connected with such undertaking. Examples of fiduciary relations are those existing between Attorney and client, guardian and ward, principal and agent, executor and heir, trustee and cestui que trust, landlord and tenant etc. Needless to point out that the instant case does not come within any of such relationships, and the argument loses force.

For the reasons aforesaid, the appeal is allowed and the decree passed in the suit by the lower Court stands dismissed.

There shall be no order as to costs.