Calcutta High Court (Appellete Side)
Nirmal Kumar Jana & Ors vs Ashis Kumar Sahoo & Ors on 10 October, 2023
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
BEFORE:
The Hon'ble Justice Soumen Sen
And
The Hon'ble Justice Uday Kumar
FA 237 of 2008
Smt. Kalyani Jana (Sahoo) since deceased represented by
Nirmal Kumar Jana & Ors.
Vs.
Ashis Kumar Sahoo & Ors.
With
FA 238 of 2008
Smt. Kalyani Jana (Sahoo)
Vs.
Ashis Kumar Sahoo & Ors.
For the Appellants in person : Mr. Nirmal Kumar Jana, in person.
For the Respondents : Mr. Arijit Bardhan, Adv.,
Mr. Rishabh Dutta Gupta, Adv.
Hearing concluded on : 1st September, 2023
Judgment dated : 10th October, 2023
Soumen Sen, J: The appeal is arising out of a judgment and decree
dated 20th June, 2007 passed by the learned Civil Judge (Sr. Div.) 4th Court
at Alipore in connection with two suits namely, T.S No. 87 of 2005 heard
analogously with T.S.No. 61 of 2007.
2. Kalyani Jana (Sahoo) was the original plaintiff. She filed the suit
being T.S. No. 164 of 1985 since renumbered as T.S. No. 87 of 1995 on 18th
September, 1995 before the learned 7th Court of Subordinate Judge at
Alipore. Subsequently, Ashis Kumar Sahoo and Debashis Kumar Sahoo
filed a suit being T.S. No. 149 of 2003 since renumbered as T.S. No. 61 of
2007 in the Court of learned Civil Judge (Jr. Div.) 5th Court, Alipore. Both
the suits were heard analogously and disposed of a common judgment and
decree dated 20th June, 2007.
3. This judgment and decree is under challenged.
4. During the pendency of the suit Kalyani died and she was
substituted by her legal heirs. Presently her husband and children are
contesting the appeal as the legal heirs of Kalyani.
5. The centre of dispute is premises no. 528/5, Bacharam Chatterjee
Lane (Riffle Ground), P.S. Behala, Calcutta -700 034 (hereinafter referred to
as 'the suit property').
6. Amulya Ratan Sahoo had two sons and two daughters. Kalyani is
the eldest daughter. Ashis and Debashis are the sons Banani is the
youngest daughter. Amulya alleged to have purchased the suit property
under deed no. 499 dated 8th February, 1980 in the name of his two sons.
7. Kalyani claimed that she was not aware of the execution of the
said deed at the relevant time and after her father promised to sell the
eastern and northern portion of the suit premises and accepted part
consideration it transpired that the suit property was purchased in the
name of his brothers. The original defendant no.3 had denied to execute the
deed in favour of Kalyani.
8. The suit was filed on 18th September, 1985. It was amended twice.
The last amendment was made after the suit filed by her brothers in
the year 2003 being T.S. 149 of 2003 in which the brothers have claimed
recovery of possession after evicting Kalyani and her husband.
9. Kalyani, the original plaintiff in the plaint has stated that she was
married on 7th May, 1975 in presence of the defendant no. 3, her father as
one of the witnesses. At the time of marriage her father assured the plaintiff
and her husband that he would arrange a house for them at Kolkata but the
construction of the house was to be supervised by the husband of the
plaintiff.
10. Since the husband of the plaintiff had no accommodation at
Kolkata of his own at that time the defendant no. 3 allowed separate
accommodation in his house at P-105 Unique Park, Behala, Kolkata-34
where the plaintiff live with her husband in order to enable the husband of
the plaintiff to supervise the house.
11. The defendant no.3 assured the plaintiff that he had purchased
the suit property in the name of the plaintiff and her sister, the defendant
no.4 out of love and affection and it was further represented that the plaintiff
would be required to construct the building in the ½ share of the plot of land
on the northern side of the suit property of her own and with her own money
keeping the other ½ portion vacant for the defendant no.4 on the eastern
side. These two plots of land have been described as the suit property.
12. On the basis of the aforesaid representation the plaintiff sold her
ornaments and major share of her husband's landed property at Midnapore
and also encashed all the Fixed Deposit of her husband and her mother in
law proceeds whereof amounting of Rs.51,000/- were invested for
constructing the house of the northern side of the suit property consisting of
two bed rooms, one garage, unfinished staircase of the rooms, grills, safety
tanks etc. The said construction was started in 1982 and while the said
construction was continuing they were prevented for continuing the said
construction. In or about 9th March, 1984 the defendant no.3 informed the
plaintiff to purchase the other ½ share of the eastern side of the suit
property reserved for the defendant no.4 at a consideration of Rs.25,000/-.
The plaintiff arranged the said amount and paid the said sum in cash on
14th August, 1984 in presence of the defendant no1 and other relations. The
defendant no.3 accepted the said money and assured the plaintiff the he
would execute and register a deed of conveyance within January, 1985 for
both the plots in favour of the plaintiff but had subsequently refused to
execute any such document and a deed of declaration relinquishing his right
in the suit property. The defendant no. 3 with the help of some antisocial
elements forced to sign the deed of declaration and threatened her with dire
consequences in any event of any refusal to comply with his commands. In
view of the complaint made by her against her father and Behala SDO she
was not allowed to construct on the suit property.
13. The first suit was filed on the basis of the aforesaid pleadings with
the following prayers:
i) For a decree, declaring that plaintiff is the owner of both
Southern and Northern portion of the premises no. 528/5,
Becharam Chatterjee Road (Riffle Ground), P.S. Behala, Calcutta
-34.
ii) For a decree declaring the defendants no. 1, 2 and 5 has no
right, title and interest in the suit property.
iii) For a decree declaring that the deed no. 499 dated 08.02.1980
registered in book no. 1, Volume No. 46, pages 153 to 157 for
the year 1980 in the sub-registry at Alipore is void and sham
deed.
iv) For a decree declaring that the right, title and interest of the
plaintiff in the said property is free from all encumbrances.
v) Permanent injunction.
vi) Costs of the suit.
vii) Any other relief/reliefs the plaintiff is entitled to get in law or in
equity.
14. On 16th December, 1996 Kalyani filed an application for
amendment of the plaint. It was alleged that in view of subsequent
disclosure by her father defendant no. 3 in paragraph 9 of his written
statement that suit property was purchased in the name of his two sons
which is contrary to the earlier representation that was referred to in
paragraph 5 of the original plaint, it has now become necessary to amend
the plaint for effective, adjudication of the disputes between the parties by
incorporating the following paragraphs:
"i) That on the own admission of the defendant No. 3 in Paragraph 9 of
the written statement the defendant No.3 is the real owner of the suit
property although title deed dated 8.2.1980 stand in the name a of
defendants 1 and 2 who are nothing but the name lenders and/or
benamaders of defendant No.3 being their father inasmuch as defendants 1
and 2 at the relevant time of purchase had no independent income and
means to purchase the said property with their own money and as such the
said transaction of sale is not hit by the Benami Transactions (Prohibition)
Act, 1988 in view of the Hon'ble Supreme Court's decision reported in AIR
1996 SC 238 holding subsections (1) and (2) of Section 4 of the said Act as
not retrospective but prospective in operation overruling earlier decision
reported in AIR 1989 SC 1247.
ii) That on 23.3.1996 the defendant No.5 Purnendu Sahoo assisted by
the defendants and their associate committed house trespass and forcibly
destroyed plaintiffs newly built staircase along with staircase room built at a
cost of Rs. 50,000/- (Rupees Fifty Thousand) only and the defendants,
breaking open the lock at the grilled gate forcibly entered the house and by
breaking the lock of the almirah took away valuable ornaments valued at
about Rs. 30,000/- and cash of Rs. 20,000/-. The defendants also took
away the file where important documents and records relating to the suit
were kept, and assaulted the plaintiff along with the her family's members,
and on 7.6.1996 they also dugout plaintiff's tubewell on the southern
portion of the suit property causing loss thereby to the extent of Rs.
15,000/- (fifteen thousand) that on 4.8.1996, 4.9.1996 and 5.9.96 they also
trespassed and made forcible entry into the suit land by breaking open the
padlock of the grill gates of the plaintiff and forcibly cut down four big fruit
bearing mango trees, one big neem tree and other trees and flower plants
with the help of several wood cutters engaged by defendants Nos, 1, 3 and 5
thus causing loss to the extent of Rs. 60,000/- ( Rupees sixty Thousand)
That on 10.3.1996 they again trespassed and forcibly entered into the suit
land by breaking open the padlock of the plaintiff's grill gate and destroyed a
bathroom, privy and a small room 15' x 12' feet on the southern portion of
the suit land built at a cost of Rs. 50,000/- (Rupees fifty thousand). Apart
from the loss to the tune of about Rs. 27,000/- (Rupees Twenty seven
thousand) since the defendants by application of force took away about
10,000/- bricks stone cheeps measuring 200 cubic feet, one truck of gravels
and one truck of sands measuring about 250 cubic feet which kept by the
plaintiff for her constructional work. The defendants together with their
associates forcibly took away those materials and utilised in construction in
the said suit plot by use of physical force and threat. That by the aforesaid
unlawful act and vandalism of the defendants, their men, agents and
associations plaintiff sustained financial loss and as such claims damage
and compensation against the said defendants to the extent of Rs.
3,52,000/- (Rupees Two locks, fifty two Thousand) only and hence this
amendment of the plaint praying degree for the said amount of Rs.
2,52,000/- towards damage and compensation for the loss sustained by the
plaintiff.
iii) That the plaintiff values the said suit for damage and compensation
tentatively at Rs. 100/- (one hundred) and additional court fees will be paid
on the said enhanced value over and above the value stated in the original
plaint and the plaintiff undertakes to pay further additional and deficit court
fees for the amount of damage and compensation which will be ultimately
assessed and decreed by the learned court.
iv) That as the defendant No. 5 purchased the southern portion of the
suit property on 16.11.1985 from the defendant 1 and 2 who were mere
benamdars of their father defendant No.3 being the real owner did not
acquire any valid right title interest and physical possession of the suit
property and took forcible possession on 4.9.96 from the plaintiff and
defendant No. 5 having started construction forcibly from 10.9.96 after
having notice of the pendency of Title suit No. 164 of 1985 through service of
notice of the application under order 1 Rule 10 read with section 151 of the
code of Civil procedure through registered post which was duly received by
him on 15.7.1996 and as such the entire construction having been made
unlawfully and wrongfully after the notice of the said Title suit the said
defendant No. 5 is liable to remove and dismantle the said wrongful
construction from the southern pro- portion of the suit land for giving the
vacant peaceful possession of the said portion to the plaintiff and for which
the plaintiff prays for mandatory injunction and/or order for removing the
unlawful structure at his own cost upon the defendants no.5."
15. In the event of such amendments being allowed Kalyani had
prayed for inclusion of the following additional reliefs:
"i) For a declaration that defendant no. 3 suit is the real owner of the
property including the southern half portion the of which was sold by
the defendant no. 1 and 2 on 16.11.1985 to defendant no. 5 who did
not acquire any valid right, title and interest by such purchase from
the defendants 1 and 2 who were mere name lenders or benamdars of
defendant no.3
ii) For a decree for damages and compensation from the defendants to
the extent of Rs.2,52,000/- (Rupees two lakhs fifty two thousand) only
for the loss sustained by the plaintiff as stated above.
iii) For a decree granting mandatory injunction and/or necessary
order U/s. 37 of the Specific Relief Act, 1963 read with Section 151 of
the Civil Procedure Code upon the defendants No.5 directing him by
mandatory order to remove the unauthorized and wrongful
construction from the southern half portion of the suit property and
deliver vacant peaceful possession thereof to the plaintiff within
specified time fixed by the Court."
16. The aforesaid amendment was allowed on contest.
17. During the pendency of the suit the brothers have filed a suit for
eviction as stated above in the year 2003. After the suit was filed Kalyani
filed a second application for amendment on 4th May, 2007. It is stated in
the said petition that in view of fraudulent representation made by the
defendant no. 3 to the plaintiff that the suit property was purchased by the
said defendant in the name of the plaintiffs and defendant no. 4 and
subsequent disclosure by the defendant no. 3 in his letter dated 10th August,
1984 in which it was admitted that the property was purchased the name of
the defendant no. 1 and 2 it has now become necessary to amend the plaint
to bring true pictures for effective adjudication by incorporating the following
paragraphs in the plaint.
"i) That on the own admission of the defendant no. 3 in his letter dated
10.08.1984 the defendant no. 3 is the real owner of the suit property
although title deed dated 08.02.1980 stand in the names of
defendants 1 and 2 who are nothing but the namelenders and/or
benamdars of defendant no. 3 being their father in as much as
defendants 1 and 2 at the relevant time of purchase had no
independent income and means to purchase the said property with
their own money, and as such the said transaction of sale is not hit by
the Benami Transactions (Prohibition) Act, 1988 in view of the Hon'ble
Supreme Court's decision reported in AIR 1996 SC 238 holding
subsections (1) and (2) of Section 4 of the said Act as not retrospective
but prospective in operation overruling earlier decision reported in AIR
1989 SC 1247.
ii) That as the defendant no. 5 purchased the southern portion of the
suit property on 16.11.1985 from the defendants 1 and 2 who were
mere benamdars of their father defendant no. 3 being the real owner
did not acquire any valid right, title and interest."
18. In aid of the aforesaid amendment the plaintiff proposed
incorporation of the following additional prayers:
"i) For a decree declaring that the deed no. 15325 registered in book
no. I, Vol no. 268, pages 457 to 466 in the year 1985 in sub Registry
Behala/Alipore is a void and sham deed and inoperative documents.
ii) For a decree, the defendant no. 3 should be commended by a decree
to execute and register a sale deed in respect of the southern portion
of the suit property and deed of gift in respect of the northern portion
with specific time and without any default."
19. The said amendment was allowed on contest.
20. The defendant no. 1 and 2 in the written statement has
categorically denied the title of the plaintiff and has asserted that they
became the owners of the suit property in the year 1980 by virtue of a deed
of sale executed in their favour by the vendor. The defendant also denied in
the written statement that any assurance being given to the plaintiff or the
defendant no. 4 ever that defendant no. 3 would sell the suit property in
their favour or that the suit property was purchased in the name of
defendant no. 1 and 2 by the defendant no. 3 and the real owner is the
defendant no.3.
21. The defendant no. 3, the father filed a written statement in the
year 1987. In the said written statement the defendant no. 3 has stated that
at the time of the marriage of Kalyani defendant no. 3 at the request of
Kalyani and her husband allowed them to live in a portion for a short
duration so that they might in the meantime find out an alternative
accommodation. The defendant no. 3 denied that the suit property was
purchased by him in the name of defendant no. 1 and 2 or any assurance
was given to the plaintiffs that the said property would be given to the
plaintiff in order to enable her to make construction. The father had denied
that the plaintiff had no legal right in respect of the suit property. The
construction of the suit property at the relevant time was made by the
defendant no. 1 and 2 with their own money. He denied of having any
discussion with regard to the sale of the suit property or any deed being
produced before him for signature.
22. The defendant no. 3, however, did not file any written statement
after the amended plaints have been served upon him. He did not file any
affidavit of evidence nor he depose in the suit.
23. The brothers of Kalyani in their written statement and also
during their evidence have stated that Kalyani married Nirmal on her own
choice while she was a student. Kalyani used to reside in a tenanted room
at Behala nearer to the residential house of the defendant no.1 and 2.
Nirmal was a school teacher of a primary school. Due to misconduct he was
suspended from his job in the month of April, 1976. Nirmal expressed his
difficulties to live in the tenanted house with Kalyani. Kalyani was preparing
for her examination. All on a sudden four months after the marriage Kalyani
along with her husband arrived at the matrimonial home on a plea that they
have been evicted from the tenanted premises and out of sympathy Amulya
allowed them to stay with him and requested them to find out an alternative
accommodation elsewhere or to return to her matrimonial home at
Midnapore. The brother out of sympathy agreed to grant them leave and
licence for some time and allow them to stay for a short time within which
they were expected to find out an alternative arrangement.
24. However on September 18, 1985 Kalyani instead of vacating the
house filed a declaratory suit motivatedly.
25. Mr. Nirmal Jana, husband of Kalyani appear in person and has
submitted that there is a concluded contract between Kalyani and her father
in relation to the suit property by which her father had expressed his
desire to sell the suit property to Kalyani for a valuable construction. His
father in law has clearly represented to Kalyani that the property was
purchased in the name of Kalyani and her younger sister which would be in
due course of time handed over to them. However, he did not disclose the
true facts. The property appears to have been purchased in the name of two
sons and thereby depriving his two daughters. Mr. Jana has referred to the
evidence of the parties and submits that Exbts. 7 and 8 should establish the
contract entered into between Kalyani and her father in relation to the sale
of the suit property. It is submitted that the Kalyani was put to possession
in the suit premises on the basis of the said agreement for sale and Kalyani
had spent and invested substantial amount in raising construction in order
to make the suit property habitable and due to threat of dispossession
Kalyani filed applications for amendment of the original plaint. The
amendments were also necessary due to subsequent event and disclosure
made in the written statement by the contesting defendants concerning the
suit property.
26. Mr. Abhijit Bardhan, learned Counsel appearing on behalf of the
respondents have submitted that the prayers made in the original plaint
could not have been granted without there being a prayer for specific
performance. The prayer for specific performance was made only in the year
2007 which is clearly barred by limitation. Kalyani could not have prayed
for a declaration of ownership without a prayer being made for specific
performance of the agreement alleged to have been entered into between
Kalyani and her father. There is no prayer for cancellation of the deed dated
February, 1980 on the basis of which the brothers of Kalyani became the
owner. In fact, in her cross examination the plaintiff admitted that the sale
deed dated 8th February, 1980 and 16th November, 1985 are not illegal. It is
submitted that the reliefs claimed are mutually destructive as on the one
hand the plaintiff has prayed for a decree of ownership of the suit property
and on the other she has prayed that the defendant no. 3 is the owner of the
suit property. This is clearly impermissible in law and reiterated in various
judicial pronouncements including the recent decision of the Hon'ble
Supreme Court in Kesar Bai v. Genda Lal & Anr., reported in 2022(10)
SCC 217. The relief for a decree of execution of the sale deed in respect of
the eastern portion of the suit property and a deed of gift of the northern
portion of the suit property were introduced by an amendment in 2007. The
cause of action if any, in respect of both the reliefs had arisen in 1985 and
hence the said reliefs are clearly barred by limitation. Even if, it is
submitted that the defendant no. 3 continued to remain as owner of the suit
property, decree for execution of a deed of gift in respect of northern portion
of the suit property cannot be granted by way of specific performance. The
defendant no. 3 could not have been compelled or directed to execute the
deed of gift since the execution of the deed of gift is an outcome of volition of
the doner. It is submitted that much reliance has been placed on Exbt. 7
however, the description of the exhibit in the list of exhibits would show that
it refers to the certified copy of the order passed in OS no 4 of 1987 before
the learned 6th Addl. District & Sessions Judge, Alipore whereas the
document filed and relied upon as Exhibit 7 was the certified copy of the
letter dated 1st March, 1984 and Exbt. 8 is the certified copy of the
application dated 4th November, 1984 filed in OS. 4 of 1987. It is submitted
that the plaintiff in her deposition had claimed that there is an agreement
dated 4th November, 1984, however, the suit was not filed on the strength of
the said agreement.
27. Mr. Bardhan has referred to cross examination of PW1 resumed
on 24th May, 1987 and has drawn our attention to the following extract of
the said cross examination:
"There is an agreement dated 4th November, 1984. I have filed the
said agreement. I have not filed any suit on the strength of the said
agreement. This is the only suit which I have filed.
Not a fact that the agreement dated 4th November, 1984 does not bear
the signature of my father or brothers.
It is fact that no agreement for sale was executed by my father or
defendants no. 1 and 2 to me and my husband".
28. In view thereof, it is submitted that the appellants cannot rely on
the said document in support of the claim for execution of the deed of
conveyance in respect of the southern portion of the suit property.
Moreover, even it is assumed that the letter marked as Exbt. 7 is the
agreement it is inadequately stamped and inadmissible in evidence and
cannot be looked into in view of the decision of the Hon'ble Supreme court in
V.E. Venkatachola Gounder v. Arulmigu Viswasdraswami & V.P.
Temple reported in 2003(8) SCC 752 paragraph 20.
29. Mr. Bardhan has submitted that the plea of benami was clearly
time barred. In the original plaint no declaration was claimed that her
brothers are not the original owners. After the coming into force of the
Benami Transaction (Prohibition) Act, 1988 she could not make any claim
that her brothers are mere namelender. The application for amendment to
introduce such pleading and consequential relief was made on 16th
December, 1996. In view of the judgment in R. Rajagopal Reddy (death) by
L.Rs and Ors. v. Padmini Chandrasekharan (dead) by LRs, reported in
AIR 1996 SC 238; 1995 (2) SCC 630 Section 4 of the Benami Act is held to
only prospective and accordingly the said claim is clearly barred by law.
30. Mr. Bardhan submits that in the event the deed of 1980 is
declared void then plaintiff does not share the suit property. The plaintiff
was unable to discharge her burden of proof to show that the property was
purchased by the father in the name of his sons. The burden of proof
showing it was a benami transaction is on the plaintiff. The plaintiff has to
prove that the purchase even if it is assumed to be made by the father in
favour of his sons, was not for their benefit. The plaintiff has failed to
establish the said fact. It is submitted that in her cross examination the
plaintiff has admitted that there was no agreement for sale between the
father and the plaintiff or her husband.
31. Mr. Bardhan has submitted that the plaintiff in the alternative
and in argument has tried to make out the case of irrevocability of the
licence granted by the defendant no. 3 or the defendant no. 1 and 2, on the
ground that the plaintiff raised certain construction on the basis of the
permission given by her father to stay at the suit property. Mr. Bardhan
submits that a licence become irrevocable under Section 60(b) of the
Easements Act, 1882 provide the following three conditions are satisfied as
stated in Panchugopa Barka & Ors. v. Umesh Chandra Goswami &
Ors., reported in 1997(4) SCC 713 paragraph 10:
i) That the occupier must be a licensee
ii) That he should have acted upon the licence,
iii) And executed a work of a permanent character and incurred
expenses for the execution of the work.
32. Mr. Bardhan has submitted that Kalyani in paragraph 10 of the
plaint has been clearly stated that the defendant no. 3 did not allow the
plaintiff to construct on the suit property. Any expenditure alleged to have
been incurred without any prior permission cannot make a licence
irrevocable.
33. In the suit filed by the brothers against their sister and her
husband they have clearly claimed the ownership of the suit property by
virtue of the deed of sale dated 8th February, 1980 and they have reiterated
that the sister was occupying the suit premises purely on a temporary
measure as licencee.
34. In the aforesaid backdrop the judgment of the trial court is
required to be considered.
35. The present appellants have an insurmountable difficulty to
overcome. Kalyani is tried to establish her title in the suit property on the
basis of an agreement dated 4th November, 1984. Kalyani although has
stated in her evidence that he has filed the said agreement but we could not
find form the list of exhibits that any such agreement, in fact, has been filed
and marked as exhibits. Kalyani has stated that she came to the present
address in the year 1984 although in the plaint it is stated as 1982. She
has stated that she started making construction in 1982 without having any
plan sanctioned by the corporation. The title deed of 8th February, 1980 and
16th November, 1985 according to Kalyani are not illegal. In a way she
accepted the validity of the said agreement. She has stated in her deposition
that at the time of purchase of the property on 8th December, 1980 her
brothers were minors and she became aware of the fact on 1st March, 1985
that her father had purchased the suit property in the name of her two
brothers on 8th February, 1980, after making search regarding the suit
property. Curiously, she did not challenge the said deed on the ground that
although the suit property was purchased in the name of her brothers the
real owner is her father, meaning thereby that the brothers are mere
Benamders and namelenders. She filed an application for amendment of the
plaint to challenge the said deed in 1996 which she could not have
challenged by reason of coming into force of Benami Transaction
(prohibition) Act, 1988. The said Act is held to be prospective in R.
Rajagopal Reddy (supra) and followed in subsequent decisions namely
Vijay Kumar v. Dharam Pal, reported in 2009 (3) SCC 319 and Samitri
Devi v. Sampuram Singh, reported in 2011 (3) SCC 556 the basis of the
challenge in the suit with regard to the validity of the deed of 1980 was that
the father although had represented and assured that the suit property
would be purchased in the name of Kalyani and her younger sister, it
transpired later that they were purchased in the name of his two sons. Even
if we assume that in 1984 or 1985 Kalyani became aware of the existence of
the said deed and she has specifically stated in her cross examination on
23rd May, 2007 that she came to know all the aforesaid fact on 1st March,
1985 the time to challenge the suit had expired by the time the amendment
applications were filed. The said deed could not have been challenged by way
of an amendment in 1996, since the plea of Benami in view of the aforesaid
decisions was no more available to Kalyani in 1996. A fresh suit for
cancellation of the deed on the ground of Benami transactions in view of
Section 4 of the Benami Transactions Act, 1988 would have been barred in
1996.
36. Moreover, the prayer for specific performance of the contract was
made in 2007 which has also clearly barred by law of limitation. Kalyani
has failed to prove readiness and willingness to perform her contract. The
refusal to perform the contract according to the plaint had arisen in 1984,
however, she did not seek for specific performance of the contract in the
original plaint. The said prayer was introduced by way of an amendment in
2007 after she was faced with a suit for eviction from her brother in 2003.
Kalyani also could not describe salient features of the agreement for sale
that was presumed to have been entered into between herself and her father.
Kalyani relied upon the agreement of 4th November, 1984 but in her
deposition she has stated that she has not filed any suit on the strength of
the said agreement. The question arises on the basis of which agreement
the suit was filed. It was more in the nature of discussion between the
plaintiff and her father since deceased where presumably some assurance
were given to her of a plot of land which were to be divided between Kalyani
and her younger sister. In fact, as Mr. Bardhan has rightly pointed out, she
cannot compel her father to execute the deed of gift in favour of her younger
daughter. The defendant/respondent no.4 did not file any suit or any
written statement in the suit supporting the plaintiff. A challenge to the sale
deed with proper pleadings in time could have saved the plaintiff and
restored her ¼ share in the suit property even if the suit for specific
performance failed as we are convinced that her brothers did not have
wherewithal to buy the suit property as the amount was quite substantial at
the relevant point of time and subsequent correspondence by and between
daughter and her father would show that the father was, in fact, asserting
his right in respect of the suit property as owner which was only possible
provided he remained as a true owner and his two sons were the ostensible
owners.
37. Notwithstanding unsatisfactory evidence of her brothers in the
suits for eviction to the extent of their tall claim of financial means to buy
the property in question with their own funds and on the basis of such
purchase assert their right of ownership and claim eviction of their sister on
the ground of revocation of licence the fact remains that challenge to the
transactions culminating to the ownership of the suit property by her
brothers became barred by law by reason of Section 4 of the Benami
Transaction (Prohibition) Act, 1988 by the time the amendment application
was filed.
38. However, brothers in their suit for eviction did not claim to be an
ostensible owner although they had the opportunity to plead and possibly
they could have succeeded in proving acquisition of title as benamdars as on
the basis of Exhibit 7 it is difficult for them to contend that they were the
real owners of the suit property at the material time. It is trite law that one
who asserts must prove his case. The burden of proof to show that they
purchased the suit property out of their own fund remains with them which
they have miserably failed to establish in the suit for eviction where their
title was disputed. The ownership is based on title claimed to have been
acquired by them with their own fund.
39. In view of the aforesaid facts it is a pyrrhic victory for the parties
as the only relief available to the parties is a partition by metes and bounds.
Kalyani, her brothers and younger sister shall have 1/4th share in the suit
property. However, we do not want to disturb the sale in favour of the
respondent no.5 as valuable right has accrued in his favour in the meantime
and he is a bona fide transferee for value without notice. The defendant no.5
had paid the money in good faith. In any event the said transfer was not
originally challenged on the ground of nemo dat quod non habet. Moreover,
the said deed should be held to be a transfer by the defendant no.3 in favour
of defendant no.5.
40. In the facts and circumstances of the case we mould the reliefs.
The decree passed in both the suits are set aside. It is hereby declared that
Kalyani and now her legal heirs shall have 1/4th share in the suit property
excluding the property sold in favour of the defendant no.5. In the event no
amicable partition takes place within a period of two months the parties
shall apply in T.S. No. 87 of 1995 for appointment of an advocate
commissioner to effectuate partition in accordance with the shares declared
that is, 1/4th each. However, as clarified the legal heirs of the original
defendant no.3 shall have no claim in respect of the property already sold to
the defendant no.5 and that property shall stand excluded from partition.
41. In the event of a commissioner is appointed considering the
nature and extent of the property, the nature of occupation of the parties we
feel that the shares of the appellant may be valued and adjusted by way of
payment of owelty money. However, the matter is left to the discretion of the
commissioner to take an appropriate decision upon consideration of all the
relevant factors. The entire process should be completed within four months
from the date of appointment of commissioner by the learned trial court.
42. Both the appeals are allowed in part. The judgment and decree
of the learned Trial Court is set aside.
43. The department is directed to draw up the decree as
expeditiously as possible and send down the LCR immediately thereafter.
43. The department is directed to draw up the decree as
expeditiously as possible.
I agree (Soumen Sen, J.)
(Uday Kumar, J.)
