Shibani Bhar vs Nabin Chandra Bhar and Others

Pratap Kumar Ray, J.—In this application under Article 227 of the Constitution of India, the petitioner, defendant No. 1 of Title Suit No. 450 of 1994 has challenged the order passed by the revisional Court below, namely, the Second Court of learned Additional District Judge at Alipore, being order dated 4.5.96 passed in Civil Revision Case No. 26-1 of 1995 whereby and whereunder the said civil revision as arose out of challenge of judgment and order dated to 9.4.95 passed by the learned Munsif, Second Court at Sealdah in Title Suit No. 450 of 1994, was dismissed on contest. For effective adjudication of the issue involved, the relevant facts in brief are to be stated.

The plaintiffs of the said Title Suit No. 450 of 1994 prayed for declaration of title and permanent injunction in respect of the house property on the contention that the said property was purchased by their deceased father, Debendra Nath Bhar in the benami of their mother Shibani Bhar who had no independent income. It was the positive case in the plaint that the said Debendra Nath Bhar. the father of the plaintiffs, from his retirement benefits, purchased the property in the name of their mother. The defendant mother appeared in the suit and filed an application under Order 7 Rule 11 read with Section 151 of the CPC praying, inter alia that the suit was not maintainable in terms of the statutory provision as laid down u/s 4 of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as the Benami Transactions Act).

The learned Court below, by the order dated 19.4.95. rejected that application. Against that, a revisional application was preferred u/s 115A of the CPC before the Second Court of learned Additional District Judge at Alipore and the same was registered as Civil Revision Case No. 264 of 1995. The learned revisional Court below on consideration of the relevant provision of law, namely. Section 3 qua Set non 4 of the said Benami Transactions Act. held that the impugned order of the learned trial Court was justified and accordingly dismissed the revisional application. In this application under Article 227 of the Constitution of India, a point was raised that the impugned decision was bad in law in view of a complete bar of filing any suit in terms of Section 4 of the said Benami Transactions Act. though an application under Article 227 of the Constitution of India has its own limitation. In the event, the same is in the nature of second revision, such application is normally not entertainable unless there is a strong case which is to be termed as "rarest to rare case" as has been decided by the judgment of Amulya Kumar Nandi, J. of this Court in the case of Pattu Dutta vs. Smt. Nibedita Ray reported in 1989 2 CHN 338 . Here in this case the impugned order has raised a legal question on issue of Benami Transactions Act and same in considered as rarest case to deal with. Hence, this application under Article 227 is maintainable. However, in view of the point of law as urged and having regard to Section 4 of the said Benami Transactions Act, orders of both the Courts below are required to be set aside and quashed, this Court has to consider this aspect. The point, namely, bar of maintainability of a suit in terms of Section 4 of the said Benami Transactions Act qua Section 3 of the said Act, it not at all res-integra. u/s 3 (2) (a) it is provided that no transaction in the name of wife of unmarried daughter would be considered as Benami Transaction and further it is provided that a mandatory presumption would weigh the decision of a case that the property if purchased in the name of wife and/or unmarried daughter would be deemed as a purchase for the benefit of them unless anything contrary is proved. From the provision of Section 3. accordingly it is clear that any property can be purchased in the name of wife and/or unmarried daughter and there is no embargo under the said Benami Transactions Act for such purchase. Even such purchase is not attracted by the penal consequences by stamping the same as a Benami Transactions in terms of Sub-section (3) of Section 3 of the said Act. which otherwise imposes punishment with imprisonment for a term which may extend to three years of with fine or with both in respect of Benami Transaction. Hence, taking into account the definition of Benami Transaction as appearing in Section 2(a) read with Section 3 Sub-section (2) clause (a), it is abundantly clear that the only transactions a are made in the name of wife or unmarried daughter are exempted transactions. Hence, under Sub-section (3) of Section 3, no penalty could be imposed in such transactions to a father who purchased the property in the name of an unmarried daughter or to a husband who purchased the property in the name of wife. On a simple reading of the statutory provision accordingly it appears that statute has permitted to purchase a property in the name of his wife or unmarried daughter. Hence, once statute has allowed to purchase any property in the name of wife or unmarried daughter, there cannot be any other statutory provision putting an embargo of establishment of such right in Court of law by taking resort to Section 4 of the said Benami Transactions Act, as has been submitted herein. A statutory provision, in terms of the basic fundamental rules for interpretation of statute, is required to be given a harmonious construction. Hence, taking into account Section 3 qua Section 4, it is abundantly clear that the purchase of property as are under the contour of clause (a), Sub-section (2) of Section 3 of the said Act, do not suffer any embargo so far as maintainability of the suit in terms of Section 4 of the said Benami Transactions Act. It is an absurd proposition that once a statute permitted someone to purchase a property in the name of wife and/or unmarried daughter, the same statute will put an embargo for giving effect to such purchase by way of a suit or otherwise when such a situation will arise. In that view of the matter, this Court does not finding any irregularity or illegality in the impugned order as would suffer the wrath of constitutional jurisdiction of this Court in terms of Article 227 or the Constitution of India. Learned Advocate for the opposite parties has relied upon a judgment of the Apex Court in the case of Nand Kishore Mehra Vs. Sushil Mehra, (which is a three Judge Bench), wherein the Apex Court also dealt with the matter about the interpretation of Section 3 qua Section 4 by confirming that the purchase in the name of wife and/or unmarried daughter never would be deemed as a purchase to attract the provision of Benami Transactions Act, for the purpose of penal consequence and/or other consequences in the statute. This Court strongly relies upon that judgment and since already it has been decided by the Apex Court, there is no new point involved for adjudication in this application under Article 227 of the Constitution of India. Hence, this revisional application stands dismissed, but there will be no order as to costs.