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2008(4) Supreme 294
SUPREME COURT OF INDIA
(From Calcutta High Court)
S.B. Sinha & Lokeshwar Singh Panta, JJ.
Sitaram Agarwal & Anr. — Petitioners
versus
Subarata Chandra & Damkrishna Dhara & Ors. — Respondents
Appeal (civil) 3319 of 2008
Decided on : 06-05-2008
(b) Transfer of Property Act, 1882 – The power of alienation, in terms of the provisions of the Transfer of Property Act need not even be conferred; it is inherent – While executing a deed of sale what is essential is transfer of the interest of the vendor in favour of the vendee – How the vendee shall deal with the property is not the concern of the vendor. (Para 11)
(c) Code of Civil Procedure, 1908 – Sections 96 and 100 – When the first appellate court returned a finding that the property in question was debotter property, there is no reason to opine otherwise in second appeal. (Paras 11 and 19)
1873 (XX) Weekly Reporter 95; (1973) 2 SCC 312; (1999) 5 SCC 50 1999(5) Supreme 405 – Relied upon.
(d) Indian Evidence Act, 1872 – Section 103 – Appellants positively pleading that name of Sri Sri Durgamata Thakurani was written in the deed of sale by mistake – Therefore the onus was on them to prove the same – Again, if the appellant raised a contention that the transaction was ‘Benami’ in character, it was for them to prove the same. (Para 17)
(e) Code of Civil Procedure, 1908 – Section 100 – The questions raised before Supreme Court not raised before the High Court – Appeal liable to be rejected. (Para 18)
(f) Code of Civil Procedure, 1908 – Section 100 – No substantial question of law had been formulated in the Memo of Appeal – Even no substantial question of law in precise terms has been taken in the Special Leave Petition – Appeal liable to be rejected. (Para 18)
Facts of the case :
1. The property in question belonged to Badal Das and Balaram Das. They, by reason of a registered deed of sale dated 3.5.1954 transferred their right, title and interest in favour of one Amar Chandra Dhara. He purchased the said property as a sebait of a deity Sri Sri Durgamata Thakurani.
2. Amar Chandra Dhara in turn sold 2.31 acres of land in favour of the appellant No.2 and the remaining 22 cents of land in favour of the appellant No.1 by two deeds of sale 14.5.1963.
3. Second Appellant instituted a suit against Amar Chandra Dhara for a declaration that the suit property was not a debottar one. It was decreed ex parte in his favour.
4. Respondents herein, however, who were sons and daughters of the Amar Chandra Dhara, filed a suit contending that the property in question being a Debottar property, Amar Chandra Dhara could not have executed the said deeds of sale dated 14.5.1963. The suit was dismissed.
5. Respondents herein preferred an appeal thereagainst which was allowed.
6. The High Court, by reason of the impugned judgment dismissed the second appeal.
Findings of the Court :
In view of the categorical finding of the first appellate court, the property in question is debotter property.
Result : Appeal dismissed.
JUDGMENT
S.B. Sinha, J. —
1. Leave granted.
2. This petition is directed against a judgment and order dated 16.2.2005 passed by a Division Bench of the Calcutta High Court whereby and whereunder the second appeal filed by the appellant herein from a judgment and order dated 30.7.2004 passed by the Additional District Judge, 3rd Court, Suri, Birbhum was dismissed.
3. Whether the property in question is a debuttor property is the issue involved herein.
4. Indisputably, it belonged to Badal Das and Balaram Das. They, by reason of a registered deed of sale dated 3.5.1954 transferred their right, title and interest in favour of one Amar Chandra Dhara. He purchased the said property as a sebait of a deity Sri Sri Durgamata Thakurani. The said Amar Chandra Dhara in turn sold 2.31 acres of land in favour of the appellant No.2 and the remaining 22 cents of land in favour of the appellant No.1 by two deeds of sale 14.5.1963.
5. Second Appellant instituted a suit being Title Suit No.130 of 1964 in the court of Munsif, Dubrajpur against the said Amar Chandra Dhara for a declaration that the suit property was not a debottar one. It was decreed ex parte in his favour. Amar Chandra Dhara did not contest the suit. Respondents herein, however, who were sons and daughters of the said Amar Chandra Dhara, filed a suit contending that the property in question being a Debottar property, Amar Chandra Dhara could not have executed the said deeds of sale dated 14.5.1963. The suit was dismissed by the Civil Judge (Junior Division), Dubrajpur holding that the property was purchased by Amar Chandra Dhara from his own funds and that plaintiffs have no locus standi to institute the suit as Amar Chandra Dhara was alive. It was opined that there exists a distinction between a deed of dedication and a deed of sale.
6. Respondents herein preferred an appeal thereagainst. By reason of a judgment and order dated 30.7.2003, the Additional District Judge, Suri, Birbhum allowed the said appeal opining that the said deed of sale dated 3.5.1954 was executed in favour of the deity and Amar Chandra Dhara was merely a sebait. The deity Sri Sri Durgamata Thakurani was in existence and in that view of the matter, the property was purchased in its name.
7. The High Court, by reason of the impugned judgment dated 16.2.205, as noticed hereinbefore, dismissed the second appeal.
8. Mr. Majumdar, learned counsel, in support of the appeal, would submit that the High Court committed a serious error in passing the impugned judgment insofar as it failed to take into consideration that the learned District Judge wrongly opined that the said deed of sale dated 3.5.1954 was in effect and substance a Benami transaction although the Benami Transactions Prohibition Act had no application in relation thereto. It was urged that from a perusal of the deed of sale dated 3.5.1954, it would appear that the dedication was not complete and, thus, it was open to the said Amar Chandra Dhara to alienate the property, particularly when it was alienable in terms of the deed of sale itself.
9. Mr. Abhijit Sengupta, learned counsel appearing on behalf of the respondent, on the other hand, would support the impugned judgment.
10. The deed of sale was executed in favour of Sri Sri Durgamata Thakurani through its sebait. There is nothing in the said deed of sale to show that Amar Chandra Dhara intended to purchase the said property for his own benefit. The very fact that the deed of sale was executed not only in the name of deity but in the presence of other villagers clearly goes to show the intention of the said purchaser.
11. Submission of the learned counsel that by reason of the said deed of sale, the vendee acquired the right to transfer the same which would indicate that the property was not a debottar property, in our opinion, is wholly misconceived. Such a power of alienation, in terms of the provisions of the Transfer of Property Act need not even be conferred; it is inherent. While executing
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