Smt. Rama Dutta & Anr vs Chanchal Kumar Dutta
2022 Latest Caselaw 2272 Cal

21.04.2022
  SL No.5
 Court No.8
    (gc)
                             FAT 86 of 2018
                                  With
                             CAN 1 of 2019
                       (Old No: CAN 1066 of 2019)

                         Smt. Rama Dutta & Anr.
                                   Vs.
                          Chanchal Kumar Dutta

                                    Mr. Moloy Bhattacharyya,
                                    Mr. Subhrojyoti Ghosh,
                                                ...for the Appellants.
                                    Ms. Shebatee Datta,
                                               ...for the Respondent.

The appeal is directed against a preliminary decree

in a suit for partition by which the counter-claim of Sri

Sanat Kumar Dutta was rejected.

We have heard the learned Counsel for the parties.

The counter-claim is based on an assertion that the

appellants had in the year 2003 purchased the property

in the name of Chanchal Kumar Dutta and wives of two

brothers of Chanchal Kumar Dutta. It was alleged that

he had paid consideration money for purchasing the

suit property and entire suit property was purchased by

two separate sale deeds. However, during evidence,

Sanat Kumar Dutta had failed to establish that the said

property was acquired with the money of the plaintiff,

and the plaintiff and the wives of two brothers of the

plaintiff are benamdars in respect of the suit property.

On the contrary, the evidence of D.W.-1 would show

that Chanchal Kumar Dutta had paid to the D.W-1 a

sum of Rs.5,00,000/- by a cheque and there was no

claim ever made by Sanat Kumar Dutta that D.W.-1 is

not the owner of the property but is a benamdar.

Learned Counsel for the appellants has relied upon

Section 3 sub-section (2) as it stood prior to 1st

November, 2016 and unamended Section 4(3) of the

Prohibition of Benami Property Transactions Act, 1988

to contend that once it is established that the property

is purchased in the name of the wife of the plaintiff that

the said property was held as a trustee for the benefit of

his brother and the two wives, the Trial Court is

required to consider the said property as an exclusive

property of Sanat Kumar Dutta. There cannot be any

dispute that when the suit was filed, the unamended

provisions were applicable to the plaintiff. However, the

plaintiff has to establish that he has purchased the

property in the name of wife or that he is holding the

said property as a trustee for the benefit of his elder

brother and the wives of the two brothers.

The learned Counsel for the appellants has also

referred to the judgment of the Hon'ble Supreme Court

in Binapani Paul Vs. Pratima Ghosh & Ors. reported

at (2007) 6 SCC 100, Paragraph 47 to argue that the

Trial Court has failed to take into consideration the

circumstances mentioned in the said paragraph to

determine the nature of the transaction.

Moreover, six guidelines mentioned in Paragraph 47

of Binapani Paul (supra) could not be established by

the plaintiff. The circumstances are:

(1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase;

(3) motive, if any, for giving the transaction a benami colour;

(4) the position of the parties and the relationship, if any, between the claimant and the alleged benamdar;

(5) the custody of the title deeds after the sale; and (6) the conduct of the parties concerned in dealing with the property after the sale.

The onus is on the appellants to prove the

transaction benami.

We have not been shown any evidence which would

prove that the said property was purchased out of the

fund of the appellants or the conduct of the parties are

such which would create an impression that the

property was purchased for the benefit of Chanchal

Kumar Dutta and wives of the two brothers. On the

contrary, D.W.-1 has categorically admitted that

Chanchal Kumar Dutta is the co-sharer in respect of

the property over which Sanat Kumar Dutta is claiming

absolute ownership. D.W.-1 is the wife of Sanat Kumar

Dutta. Moreover, as noticed earlier D.W.-1 has

admitted to have received fund from Chanchal Kumar

Dutta to raise certain constructions in the house which

would demolish the case of exclusivity of Sanat Kumar

Dutta in relation to the property in question.

We have carefully examined the evidence. We do

not find from evidence that the appellants have able to

satisfy the aforesaid two conditions in claiming as the

true owner of the suit property. On such lack of

evidence and establishing his right over the property as

owner thereof or that such consideration money was

paid by him alone, we do not find any reason to

interfere with the order passed by the learned Civil

Judge (Senior Division), 1st Court, Alipore, South 24-

Parganas in Title Suit No.45 of 2013.

With the aforesaid observation, the appeal being

FAT 86 of 2018 and the application being CAN 1 of

2019 (Old No: CAN 1066 of 2019) stands dismissed.

However, there shall be no order as to costs.

Urgent Photostat certified copy of this order, if

applied for, be given to the parties on usual undertaking.

(Ajoy Kumar Mukherjee, J.) (Soumen Sen, J.)