Jyoshnamayee Bahinipati And ... vs Sri Lingaraj Bahinipati
2021 Latest Caselaw 3188 Ori

               HIGH COURT OF ORISSA: CUTTACK.

                          RSA. No.226 of 2017

From the judgment and decree dated 17.03.2017 and 31.03.2017
respectively passed by the learned 3rd Additional District Judge, Berhampur
in RFA No.47 of 2016 confirming the judgment and decree dated
04.05.2016 and 13.05.2016 respectively passed by the learned Civil Judge
(Senior Division), Berhampur in C.S. No.149 of 2012.


Jyoshnamayee Bahinipati and others          ...... Appellants
                                - Versus-

Sri Lingaraj Bahinipati                      ...... Respondent
            For Appellants :                M/s. Budhadev Routray, Sr.
                                            Advocate, S. Das, R.P. Dalaei,
                                            S.Jena, K. Mohanty, S.K.
                                            Samal, S.D. Routray & S.P.
                                            Nath, advocates


            For Respondent :                None
                               ---------

PRESENT:

THE HONOURABLE SHRI JUSTICE D.DASH

Date of hearing-24.02.2021: Date of judgment- 04.03.2021

The Appellants by filing this appeal under section 100 of the Code of Civil Procedure, have assailed the judgment and decree dated 17.03.2017 and 31.03.2017 respectively passed by the learned 3rd Additional District Judge, Berhampur in RFA No. 47 of 2016 confirming the judgment and decree dated 04.05.2016 and 13.05.2016 respectively passed by the learned Civil Judge (Senior Division), Berhampur in C.S. No. 149 of 2012.

The courts below by the above judgments and decrees have non-

suited the Plaintiffs (Appellants). The suit filed by the Appellants as the Plaintiffs thus has been dismissed by the courts below.

2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court.

3. Plaintiffs' case is that their predecessor-in-interest namely Padma Charan Bahinipati and one Lingaraj Bahinipati i.e. the Defendant are two brothers being son of Raghunath Bahinipati. Padma Charan Bahinipati is elder to Lingaraj Bahinipati. Upon the death of their father when the Defendant was 9 years old boy, Padma Charan is said to have taken all his care in every front. In the year 1965, the Defendant having obtained MBBS degree ultimately went to United Kingdom for higher study.

It is the further case of the Plaintiffs that in the year 1971, Padma Charan purchased the suit property on his own by spending his earning without the help from any quarter and constructed a house over there for his living with family. The reason for the same as given is that since Padma Charan was then a Govt. employee in the Forest Department by spending his own funds instead of purchasing the property in his name standing as the vendee under said transaction; he preferred to purchase the property in the name of his brother i.e. the Defendant. After purchase, Padma Charan Bahinipati possessed the property as its owner and on his death, the Plaintiffs as the legal heirs and successors are in possession of the same. Having got some information that the Defendant is attempting to alienate the suit property, the Plaintiffs with the apprehension of losing their

property have filed the suit for declaration of title, possession and injunction.

The Defendant having entered appearance in the suit had filed the written statement. Finding some objectionable averments to have been placed there in the written statement, the trial court had directed for deletion of the said portion. That being not carried out, the written statement has been struck out.

4. In the backdrop of the case projected by the Plaintiffs' the both oral and documentary evidence, as have been tendered by them being appreciated, the trial court has answered the most crucial issue as to the ownership of the property against the Plaintiffs. It has been categorically held that the provision of sub-section (1) of section 4 of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to 'the Act') stands on the way of entertaining the suit for enforcement of any right as real owners over the suit property said to be held benami against the defendant. In saying so, the trial court has thus negated the contention raised by the Plaintiffs that the transaction in hand under Ext.1 falls within the exception as provided in section 4(3) (b) of the Act as has been proved, further deriving support from the totality of the facts and circumstances as emerge out.

5. Mr. B. Routray, learned Senior Counsel for the Appellants (Plaintiffs) submitted that in the facts and circumstances as have been placed by the Plaintiffs in their evidence in consonance with the pleadings; the courts below have completely erred both on fact and law in rendering the concurrent finding that the transaction of purchase of the suit land under

Ext. 1- the sale deed standing in the name of the Defendant is not covered by the exception as provided in clause (b) of sub-section-(3) of section 4 of the Act.

According to him, the relationship between Padma Charan and his brother (Defendant) on the other is clearly based on trust and confidence and that having been established in evidence, the courts below have misdirected themselves in ignoring the factual context in which the question arises and erred in law by holding that the Defendant did not stand in a fiduciary capacity vis-à-vis Padma Charan Bahinipati. He therefore submitted that this appeal be admitted on the following substantial question of law:-

"Whether the finding of the learned courts below that the benami transaction in respect of the suit property does not come under the exception as provided in clause (b) of sub-section (3) of section 4 of the Act is in consonance with the facts and circumstances as those emerge in the evidence let in upon the base of the pleadings?"

6. The case of the Plaintiffs is that Padma Charan being the elder brother had purchased the suit property in the name of his younger brother i.e. Defendant in the year 1971. At that time Padma Charan was a Govt. servant under the Department of Forest of the State of Odisha. It is their specific case that since Padma Charan Bahinipati was a Govt. servant, he did not wish to purchase the property in his own name and instead obtained the purchase in the name of his brother who was then residing in United Kingdom. Save and except the reason as above assigned nothing more is treated. The facts those are deducible from the above pleadings are that

Padma Charan had paid the consideration money from his own pocket without any contribution from the side of the Defendant and he was the real owner, whereas the Defendant was the owner apparent. In other words, it is said that Padma Charan who had purchased the property in the name of the Defendant without intending to benefit him in any way but to benefit himself and his family members. P.Ws. in their evidence have stated that said Padma Charan Bahinipati had full faith and confidence upon the Defendant that in future he would execute the required document for change of the name of the purchaser in respect of the suit property i.e. from his name to the name of Padma Charan.

7. The Benami Transactions (Prohibition) Act, 1988 has come into force with effect from 05.09.1988. After amendment with effect from 01.11.2016, said Act stands as the "Prohibition of Benami Property Transactions Act, 1988".

Section 4 of the Act as it stood prior to the coming into force of Amendment Act 43 of 2016 runs as under:-

"4. Prohibition of the right to recover property held benami.-

(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be real owner of such property. (2) 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.

(3) Nothing in this Section shall apply,--

(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or

(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity."

It may be stated here that by the Amendment Act 43 of 2016 with effect from 01.11.2016, above sub-section (3) with the clauses (a) and (b) to section 4 has been omitted.

The position has been well settled by the decisions of the Hon'ble Apex Court that the provision contained in section 4 of the Act as to the right to recover property held benami would not be attracted so as to bulldoze the claim in that regard made by the suitor in the suit filed prior to the coming into force of the Act i.e. prior to 05.09.1988 which would find utterance for adjudication and decision on merit but it would so stand as the bar for such suits filed on 5.9.1988 and thereafter. Similarly the defence on that score asserting the right as such if has been tendered after 05.09.1988 would not be allowed but those tendered before would stand for adjudication on merit.

8. The terms "fiduciary" and "fiduciary relationship" have been explained in great detail by the Apex Court in case of "CBSE vs. Aditya Bandopadhyay"; (2011) 8 SCC 497 at para-39, page 524-25. It has been said:-

"39. The term 'fiduciary' refers to a person having a duty to act for the benefit of another, showing good faith and candour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term 'fiduciary relationship' is used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction

(s). The term also refers to a person who holds a thing in trust for another (beneficiary). The fiduciary is expected to act in confidence and for the benefit and advantage of the beneficiary, and use good faith and fairness in dealing with the beneficiary or the things belonging to the beneficiary. If the beneficiary has entrusted anything to the fiduciary, to hold the thing in trust or to execute certain acts in regard to or with reference to the entrusted thing, the fiduciary has to act in confidence and is expected not to disclose the thing or information to any third party.

It is manifest that while the expression "fiduciary capacity" may not be capable of a precise definition, it implies a relationship that is analogous to the relationship between a trustee and the beneficiaries of the trust. The expression is in fact wider in its import for it extends to all such situations as place the parties in positions that are founded on confidence and trust on the one part and good faith on the other."

It is thus clear from the above that even without giving any precise definition of the expression "fiduciary capacity", it springs out of the relationship which is analogous to the relationship between a trustee and beneficiaries of the trust founded on confidence and trust on the one part and good faith on the other.

9. Adverting to the case in hand, it is seen that it has been pleaded that Padma Charan being a Govt. servant in his anxiety was desirous of avoiding to purchase the property in suit in his name and so he, wished to purchase the property in the name of the brother i.e. Defendant and he did so.

Save and except the above, nothing more has been pleaded in support of the projected the case that the defendant then was very much standing in a fiduciary capacity and that the suit property was not for his benefit but for the benefit of Padma Charan. Mere mention of the relationship that the Defendant is the brother of Padma Charan would however not suffice the purpose and basing upon that it is not permissible to record the finding that the transaction in question would not come within the prohibition contained in section 4 (1) of the Act being so excepted under clause (b) of sub-section 3 of the Act as it stood on the date of institution of the suit. The legislative intent behind the insertion of that clause (b) to sub-section 3 of the Act which was there till 31.10.2016 is clear that normal relationship through blood or akin relationship as such have no play therein and the party in order to have his case within that saving fold has to plead all those facts and circumstances including their inter se dealings stretching over a period and also prove those by leading clear, cogent and acceptable evidence of such nature that the court would record the finding that the person in whose name the property is held stood in a fiduciary capacity.

In the absence of any foundation in the pleadings as to all such facts and circumstances and their proof by clear, cogent and acceptable evidence so as to bring the transaction within the fold of the exception as it was there in clause (b) of sub-section 3 of section 4 of the Act; the courts below in my considered view found to have committed no error in recording the concurrent finding that the Plaintiffs have failed to establish their case so as to be entitled to the reliefs claimed in the suit. Moreover, the very case of the Plaintiffs that the suit property had then been purchased by Padma Charan in the name of the Defendant is in order to show that he had nothing

to do with said purchase sine it is said to be for the reason of avoidance of any such problem in his service career. This even taken as such and accepted; the case that the property held in the name of the Defendant standing in fiduciary capacity and that the property was held not for the benefit of Defendant but for that of Padma Charan towards whom the Defendant stands in such capacity falls flat.

10. For the aforesaid, this Court is not in a position to accept the submission of the learned Senior Counsel for the Appellants (Plaintiffs) that the case involves the substantial question of law as aforesaid in sub- para-2 of para-5.

11. The appeal thus does not merit admission and is accordingly dismissed.

No order as to cost.

................

D.Dash, J.

Orissa High Court, Cuttack, Dated the 4th day of March, 2021Aks