Ratan Kumar Sharma vs Smt. Premwati Sharma
2016 Latest Caselaw 6078 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 19   						Reserved.
 
                                                                              A.F.R.
 
Case :- SECOND APPEAL No. - 797 of 2014
 
Appellant :- Ratan Kumar Sharma
 
Respondent :- Smt. Premwati Sharma
 
Counsel for Appellant :- Anoop Trivedi
 
Counsel for Respondent :- Pramod Jain
 

 
Hon'ble Vinod Kumar Misra,J.

This second appeal has been filed by Ratan Kumar Sharma against Smt. Premwati Sharma against the judgment and decree dated 9.5.2014 passed by Additional District Judge, Court no. 9, Meerut in Civil Appeal No. 75 of 2008 by which the learned first appellate court has set aside the judgment and decree dated 12.5.2008 passed in Original Suit No. 243 of 2002 and directed the defendant/appellant to vacate the suit property within one month.

The appellant made a prayer that the judgment and decree dated 9.5.2014 passed by Additional District Judge Court No. 9 in Civil Appeal No. 75 of 2008 be set aside.

This appeal was admitted on 31.7.2014 on the substantial question of law as framed by the appellant namely A, B and C, which are as under:

	(A)       Whether the findings recorded by and all the conclusions arrived at by the learned first appellate court are wholly baseless and perverse?
 
	(B)     Whether without upsetting the finding recorded by the trial court, the learned first appellate court could have set aside the judgment and decree of the learned trial court?
 
	(C)     Whether the direction issued by the learned first appellate court to vacate the suit property within one month is wholly misconceived is without jurisdiction and illegal?
 
 	I have heard learned counsel for the appellant and learned counsel for the respondent at length and have perused the record of learned trial court and have also perused the judgment of learned trial court as well as learned first appellate court and have also gone through the material available on record. 
 

Original Suit No. 243 of 2002 was filed by Premwati Sharma, plaintiff against Sri Ratan Kumar Sharma, defendant for delivery of possession through mandatory injunction. Learned trial court vide judgment dated 12.5.2008 dismissed the plaintiff's suit. Plaintiff assailed the judgment of the learned trial court by preferring appeal no. 75 of 2008 before District Judge, Meerut. The appeal was transferred to the Additional District Judge, Court No. 9, Meerut. Learned first appellate court vide judgment dated 9.5.2014 allowed the appeal and set aside the judgment of trial court and partly decreed the original suit no. 243 of 2002 and directed the defendant to hand over the vacant possession to the plaintiff of house nos. 54 and 58 situated at Ganjbazar, Meerut Cantt.

Since substantial questions of law mentioned above as A,B and C are inter-connected, so I am taking all the above framed substantial questions of law together for deciding this second appeal.

Learned counsel for the appellant submitted that learned first appellate court has set aside the judgment of the learned trial court by holding that plaintiff was owner of the disputed house on the basis of sale deed dated 14.5.1980 and 21.5.1986, which is paper nos. 7 Ka and 22 Ka. Learned trial court found that these sale deeds i.e. paper nos. 7 Ka and 22 Ka have not been proved by plaintiff by calling the scribe or its marginal witnesses in evidence and trial court did not accept the plaintiff as owner of house nos. 54 and 58, which were purchased through sale deeds dated 14.5.1980 and 21.5.1986. Learned first appellate court did not agree with the reasons of the trial court in holding that these sale deeds i.e. paper nos. 7 Ka and 22 Ka are not proved and held that since execution of these sale deeds have not been denied by the defendant but it has been alleged by the defendant that these sale deeds were purchased in the name of plaintiff by the father of the defendant, Ram Narayan Sharma as benami and sale consideration was given by the father of defendant, Ram Narayan. In the trial court issue no 9 was frame like as follows:

Issue no. 9: Whether the statement of para 36 of the written statement regarding banami transaction is barred by Section 4?

Learned trial court did not decide this issue on merit but decided it on the basis of not pressing the issue by the plaintiff's counsel.

Learned first appellate court has held that pertaining to the Section 4 of the Benami Transaction (Prohibition) Act, 1988 (herein after referred to as the Act) was legal issue. It was duty of the trial court to decide it on merit even if, it was not pressed by the counsel for the parties. Learned first appellate court has found that defendant has failed to prove the transaction as benami and plaintiff is owner of the disputed house on the basis of sale deeds executed in her favour. Regarding Section 4 and Section 3 of the Act case laws of AIR 1995 Supreme Court 2145 (Nand Kishore Mehra Vs. Shushila Mehra) and (1997) 11 Supreme Court Cases 714 (Rebti Devi (Smt.) Vs. Ram Dutt and another) have been cited before me. In the first case law of Nand Kishore it has been held by the Hon'ble Supreme Court that neither the filing of suit nor taking of a defence in respect of either the present or past benami transaction involving the purchase of property by a person in the name of his wife or unmarried daughter as prohibited under subsection 1 and subsection 2 of Section 4 of the Act.

Section 3 of the Act is reproduced as under:

Section-3 "3. Prohibition of benami transactions.--

(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-5

"5. Property held benami liable to acquisition.--(1) All properties held benami shall be subject to acquisition by such authority, in such manner and after following such procedure, as may be prescribed. (2) For the removal of doubts, it is hereby declared that no amount shall be payable for the acquisition of any property under sub-section."

In the first case law of Nand Kishre it has also been held by the Hon'ble Supreme Court in paragraph 6 that:

Sub-section (1) of Section 3 , as seen, prohibits a person from entering into any benami transaction. Sub- section (3) of Section 3 , as seen, makes a person who enters into a benami transaction liable for punishment. Section 5 makes properties held benami liable for acquisition without payment of any amount. But, when sub-section (2) of Section 3 permits a person to enter into a benami transaction of purchase of property in the name of his wife or unmarried daughter by declaring that the prohibition contained against a person in entering into a benami transaction in sub- section (1) of Section 3, does not apply to him, question of punishing the person concerned in the transaction under sub- section (3) thereof or the question of acquiring the property concerned in the transaction under Section 5, can never arise, as otherwise the exemption granted under Section 3 (2) would become redundant. What we have said of the person and the property concerned in sub-section (2) of Section 3 in relation to non-applicability of the provisions of Section 3 (3) and Section 5 shall equally hold good for non applicability of the provisions of sub-sections (1) and (2) of Section 4 in the matter of filing of the suit or taking up the defence for the self same reason. Further, we find it difficult to hold that a person permitted to purchase a property in the name of his wife or unmarried daughter under sub-section (2) of Section 3 notwithstanding the prohibition to enter into a benami transaction contained in sub-section (1) of Section 3 cannot enforce his rights arising therefrom, for to hold so would amount to holding that the Statute which allows creation of rights by a benami transaction also prohibits the enforcement of such rights, a contradiction which can never be attributed to a Statute. If that be so, there can be no valid reason to deny to a person, enforcement of his rights validly acquired even in the past by purchase of property in the name of his wife or unmarried daughter, by making applicable the prohibition contained in respect of filing of suits or taking up of defences imposed in respect of benami transactions in general by sub-sections (1) and (2) of Section 4 of the Act. 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.

In the second case law of Rebti Devi the arguments was advanced that law laid down by a three-Judge Bench of Supreme Court in Rajagopal Reddy case, prohibiting raising of defence of benami in such circumstances, had been doubted by another three-judge Bench of Supreme Court in Nand Kishore Mehra case. It has been held by the Hon'ble Apex Court that the decision in Rajagopal Reddy case is not in any manner shaken by anything said in Nand Kishore Mehra case and that both the cases deal with different aspects of the Act and each of the cases continues to govern different provisions of the Act.

In the present case the arguments of the learned counsel for the appellant emphasized that learned first appellate court gave the finding only on the basis of Section 4 of the Act and did not take into consideration Section 3 (2). In which it has specifically been mentioned that 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.

According to the appellant in the present case, plaintiff was living with defendant's father in the house no. 53 and she helped defendant's father in up-bringing the children of defendant's father, Ram Narayan Sharma with his wife Shakuntala Sharma and also looking after Shakuntala Sharma, who was bed ridden. Ultimately, Premwati made physical relations with defendant's father and was in dominating position to control him. Disciplinary proceedings were also drawn against defendant's father on the complaint of Premwati's ex-husband from whom she obtained divorce regarding the illicit relationship of Premwati with defendant's father. Ultimately, those disciplinary proceedings were ended in favour of defendant's father but Premwati used to coerce defendant's father that if he dis-obeyed the command of Premwati, she would again complain in his department regarding illicit relationship with her. So, in these circumstances defendant's father purchased the disputed house in name of Premwati and Premwati was not in a position to purchase the house nos. 54 and 58 independently from her meager income of teaching.

But since transaction was benami and Section 4 prohibits filing of suit or defence, learned first appellate court on the basis of Section 4 found ownership in the disputed house with plaintiff, Premwati. No doubt in Section 3 (2) presumption is in favour of plaintiff that house was purchased for her benefit being wife of Ram Narayan Sharma but Ram Narayan Sharma was entitled to rebut this presumption if we give wider interpretation to word 'wife' in Section 3 (2) of the Act.

There is no evidence by defendant to rebut the presumption of Section 3 (2) of the Act as Premwati rendered her services in defendant's family and his father treated her as wife and got executed sale deeds for her benefit. From another angle if we confine to the provisions of Section 3(2) of the Act to legally wedded wife only, then the defence of the defendant regarding the benami transaction will be hit by Section 4 (2) of the Act. So in both the eventualities scale is tilting in favour of plaintiff /respondent, as sale deeds are in her favour and the defence of benami transaction is hit by Section 4 (2) of the Act as held by learned first appellate court, is correct conclusion in the facts of the present case. So far as the status of the defendant in the disputed house as owner is concerned defendant has taken two pleas regarding ownership one by inheritance being son of Ram Narayan Sharma and other by adverse possession. So far as first plea of inheritance of house being son of Ram Narayan Sharma is concerned since Ram Narayan Sharma has not been found owner of the disputed house and so far as plea of adverse possession is concerned necessary ingredients of adverse possession has not neither been pleaded and nor been proved in accordance with law. Earlier entry of defendant in the house is being permissive with defendant's consent, so question of adverse possession does not arise, as defendant was inducted and permitted to live in house after his marriage with the consent of plaintiff being the son of Ram Narayan Sharma with whom plaintiff was living as a keep or so called wife.

So first appellate court's finding regarding treating the defendant as occupant in the house as licencee is according to law. So far as the contention of the learned counsel for the appellant that learned first appellate court has not reversed the reasons of the trial court is concerned, it is observed that learned first appellate court has given cogent reason in his judgment regarding reversing the findings of the learned trail court on issues framed in the suit.

In the above facts and circumstances, the findings recorded by the first appellate court are according to law and learned first appellate court has given the finding in the appeal upon the points involved in the case and upset the finding of the learned trial court. Learned first appellate court was competent and had jurisdiction to direct the appellant/defendant to vacate the disputed house and hand over its possession to plaintiff within one month since the date of passing of the judgment.

So in these circumstances, all the above substantial questions of law, namely, A, B and C are answered in favour of respondent and against the appellant. Thus, the appeal is liable to be dismissed.

The appeal is, accordingly, dismissed.

Copy of the judgment and record of the courts below be also transmitted to the courts below concerned.

Order Date :- 22 .9.2016

A. Pt. Singh