Bombay High Court
Ramdas Shripat Chaudhary vs Sunil Raghunath Chaudhary Lrs ... on 7 December, 2021
Bench: V. V. Kankanwadi
sa-196-2017 with 2 ca.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.196 OF 2017
WITH CA/8155/2021 IN SA/SA/196/2017
WITH CA/3345/2017 IN SA/196/2017
RAMDAS S/O SHRIPAT CHAUDHARY
VERSUS
SUNIL RAGHUNATH CHAUDHARY (DECEASED) THR. LRS. SMT.
KALPANA SUNIL CHAUDHARY AND OTHERS
...
Mr. P. V. Mandlik, Senior Counsel i/b Mr. K. C. Sant, Advocate for
appellant.
Mr. M. S. Kulkarni, Advocate for respondent Nos.1 to 3.
...
CORAM : SMT. VIBHA KANKANWADI, J.
Reserved on : 21.09.2021
Pronounced on : 07.12.2021
ORDER :-
. Present appeal has been filed by the original defendant
challenging the concurrent judgment and decree passed by the Courts
below.
2. Present respondent No.1 was the original plaintiff, who had filed
Special Civil Suit No.46 of 2011 before the learned II nd Joint Civil Judge
Senior Division, Dhule for partition, possession and perpetual injunction.
The said suit came to be decreed on 13.12.2012. The said decree was
challenged by original defendant by filing Civil Appeal No.9 of 2013.
The said appeal was dismissed by learned Adhoc District Judge-1, Dhule
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on 02.02.2017. Hence, this second appeal. Both the civil applications
have been filed for stay to the impugned decrees. In fact, when Civil
Application No.3345 of 2017 was filed, it appears that the matter was
not taken up for even circulation by the appellant, but then during the
pendency of the appeal and the application, final decree proceedings
were taken up before the Executing Court and, therefore, Civil
Application No.8155 of 2021 has been filed.
3. Heard learned Senior Counsel Mr. P. V. Mandlik for the appellant
and learned Advocate Mr. Mukul S. Kulkarni for respondent Nos.1 to 3.
4. The learned Senior Counsel appearing for the appellant - original
defendant vehemently submitted that both the Courts below have not
considered the evidence properly. The plaintiff had come with the case
that the suit property was the ancestral property of the plaintiff and
defendant. Plaintiff and defendant are nephew and uncle. Plaintiff's
father and defendant were real brothers. They had no sister. Suit
property was purchased in the name of grandmother of the plaintiff by
grandfather, however, since plaintiff's father was serving in Police
Department at different place and the parents of the plaintiff are no
more; this situation was encashed by the defendant and in collusion
with revenue authority, he got the heirship certificate contending that he
is the sole heir of Kasturabai - grandmother. Defendant himself was
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working in Collector office. With this story, the plaintiff had prayed for
partition and separate possession. However, the defendant had come
with the defence that he is the exclusive owner of the suit property. He
denied that it was purchased by his father in the name of his mother. He
contended that the income of his father was not so that he could
purchase a property. In fact, defendant himself was serving in revenue
department and was residing adjacent to the suit property in the rented
premises. His father-in-law extended financial aid in the year 1982 to
purchase the open space of the suit property and then defendant
purchased the suit property from one Hanumantrao in the name of his
mother, as she was elder in the family. His father had not given a single
pai since he had died prior to the transaction itself. Thereafter, the
defendant has made construction out of his own funds. Plaintiff cannot
get any share in the suit property.
5. The learned Senior Counsel appearing for the appellant submitted
that both the Courts have held that the suit property is ancestral
property. The evidence adduced by the defendant has been unnecessarily
discarded. Defendant had produced on record the application for loan,
promissory note, receipt of loan, loan bond, consent of Kasturbai, etc. It
has come on record that father of the appellant expired in the year 1967
and the property was, in fact, purchased in the year 1982. No
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documentary evidence was produced by the plaintiff to show that
Kasturabai was having sufficient funds to purchase the said property in
the year 1982. Both the Courts have not considered that the defendant,
who was already in revenue department, could have raised amount. So
also, he has stated that he had borrowed some amount from his father-
in-law in the year 1982. He had also raised loan from Credit Cooperative
Society for construction of the plot. When it has not been proved by the
plaintiff that Kasturabai had purchased the said property out of her own
income, the evidence that has been led by the defendant ought to have
been appreciated by both the Courts and, therefore, the substantial
question of law is arising in this case, as to what was the nature of the
property.
6. It will not be out of place to mention here that when specific
query was made that as to what was the reason for the defendant to
purchase the property in the name of mother and not in his own name
and why it cannot be considered that the defence raised by the
defendant that though the property stood in the name of mother, it was
purchased out of his own income; should not be taken as barred under
Section 4 of the Benami Transactions (Prohibition) Act, 1988.
Thereupon, the learned Senior Counsel relied on the decision in Sri.
Marcel Martins Vs. M. Printer & Ors., [AIR 2012 SC 1987], wherein it
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has been held "when the relationship between the parties is fiduciary
relationship, then such transaction is completely saved from the mischief
of Section 4 of the Benami Transactions (Prohibition) Act, 1988 by
reason of the same falling under Sub-section 3(b) of Section 4. Further,
reliance has been placed on the decision in Sankara Hali and Sankara
Institute of Philosophy and Culture Vs. Kishori Lal Goenka, [1996 (7)
SCC 55], which was the three Judge Bench decision of the Hon'ble
Supreme Court, wherein it has been held :-
"5. The Act prohibits entering into benami transactions
and says that no person shall enter into any benami
transaction and further provides that whoever enters into
such a transaction, shall be punishable with
imprisonment for a term which may extend to three years
or with fine or with both. Section 4 bars a suit, claim or
action to enforce any right in respect of any property held
benami against the person in whose name the property is
so held or against any other person by or on behalf of a
person claiming to be the real owner of such property.
Similarly, 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. Section 5 deals with the question of
property held benami being liable to acquisition and
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Section 6 lays down that nothing in the Act shall affect
the provisions of Section 53 of the Transfer of Property
Act or any law relating to transactions for an illegal
purpose. A reading of Section 4 of the Act shows that the
real owner is precluded from claiming title to the
property against the person holding the same benami
either by way of assertion of defence. Under the Act any
transaction entered into prior to the coming into force of
the Act, between the ostensible owner and the real owner
is not voided by any provision, whatsoever."
7. Further, reliance has been placed on the decision in Nand Kishore
Mehra Vs. Sushila Mehra, [AIR 1995 SC 2145], wherein it has been held
that "Bar of plea of Benami is not applicable to purchase of property by a
person in the name of his wife or unmarried daughter, provided it is
proved that the property was not purchased for the benefit of his wife or
unmarried daughter, because of statutory presumption contained in Sub-
Section (I) of Section III that unless a contrary is proved that purchase
of property by the person in the name of his wife or unmarried daughter
was for benefit." Further, reliance has been placed on the decision in R.
Rajagopal Reddy (Dead) by LRs. and others Vs. Padmini
Chandrasekharan (Dead) by LRs., [(1995) 2 SCC 630] , wherein it has
been held that "Section 4(1) of Benami Transactions (Prohibition) Act,
1988 is not retrospective in operation. It does not apply to pending suits
already filed and entertained prior to coming into force of Section 4. It
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provides only from the date of its coming into operation, no suit, claim
or action preferred by the real owner, to enforce any right in respect of
any property held benami would lie in any Court. Further, as regards
the defendant it is held, even if suit, claim or action filed by ostensible
owner on the basis of sale deed or title deed in his name prior to coming
into force of Sub-section (2), defendant - real owner cannot be allowed
to raise defence based on any right in respect of property held benami."
8. Learned Advocate appearing for respondent Nos.1 to 3 submitted
that both the Courts below have considered the entire evidence that was
adduced before the Trial Court and have come to the conclusion that
defendant had failed to prove that the amount of consideration was paid
by the present appellant. The property was belonging to Kasturabai -
grandmother of plaintiff and mother of defendant and, therefore, after
her demise, both are entitled to inherit the same. He relied on the
decision in Mangathai Ammal (Died) Through LRs and others Vs.
Rajeswari and others, [2019 SCC Online SC 717], wherein it has been
held, "while considering a particular transaction as benami, intention of
the person who attributed the purchase money is determinative of the
nature of transaction. Intention of the person, who contributed the
purchase money, has to be decided on the basis of the surrounding
circumstances; the relationship of the parties; the motives governing
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their action in bringing about the transaction and their subsequent
conduct etc."
9. At the outset, it is to be noted that as regards the point as to
whether the transaction in question was a Benami and whether the
defence of the defendant that in fact he is the exclusive owner and not
his mother, though the property was standing in her name, could have
been allowed to be raised in view of Section 4 of Benami Transactions
(Prohibition) Act, 1988, was not considered by both the Courts below.
But, definitely, that point which is the law point, which can be framed
here, will have to be gone into because if the defendant could not have
been allowed to raise that defence, then his entire defence fails. The
transaction that is purchased was of the year 1982 i.e. prior to the
coming into force of the Benami Transactions (Prohibition) Act, 1988,
but the suit was filed on 08.03.2011. Under such circumstance, it will
have to be decided whether on the date of the suit such defence can be
allowed to be raised. As aforesaid, in R. Rajagopal Reddy (Supra) it has
been held that it is not retrospective in operation, however, the point as
to whether even if transaction had taken place earlier but that
transaction is questioned or is in dispute after coming into force of the
Act has been dealt with. Here, we are concerned with whether
defendant can take such defence and to that extent, the observations in
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paragraph No.13 would be required to be considered. However, since
the categories have been made, we will have to consider its
interpretation. Further, the real intention whether was brought on
record is also a question. Another fact to be appreciated on the basis of
the same is, if the property was in the name of mother, then whether
defendant could have raised any loan from any institution/bank/
Patsanstha is also required to be considered. On this point, in fact, the
Courts below have considered that the said construction would have
been made by the defendant as per his choice and will. It does not
deprive the plaintiff of his right. The documents on record were
considered by both the Courts below and it was observed that those
documents appear to be fabricated. The defendant was the Secretary of
the Patpedhi, from whom it was shown that he had raised loan.
Therefore, as regards factual aspect is concerned, it is not giving any rise
to a substantial question of law, however, the nature of the property and
whether the defendant could have raised defence of exclusive
ownership, though the property stood in the name of his mother,
deserve to be resolved/adjudicated in this case. Hence, the second
appeal stands admitted. Following are the substantial questions of law :-
I) What was the nature of the suit property i.e. as to whether
ancestral or of exclusive ownership of defendant No.1?
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II) Whether the defendant could have been allowed to take
defence that though the suit property was purchased in the name
of his mother but he was in fact the real owner (Benami
Transactions) in view of Bar under Section 4 of the Benami
Transactions (Prohibition) Act, 1988?
10. Issue notice to the respondents. Mr. M. S. Kulkarni waives notice
for respondent Nos.1 to 3.
11. In view of the point that is limited to be decided in this case, the
appeal stands expedited.
12. Call record and proceedings. Printing of paperbook is dispensed
with.
13. Liberty is granted to the respondents to file an application for
early hearing of the second appeal.
14. Therefore, till the hearing and final disposal of the second appeal,
there shall be stay in terms of prayer clause 'A' of Civil Application
No.3345 of 2017 and prayer clause 'B' of Civil Application No.8155 of
2021. Accordingly, Civil Application Nos.3345 of 2017 and 8155 of 2021
stand disposed of.
[SMT. VIBHA KANKANWADI, J.]
scm
