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High Court Of Calcutta
PADMA KHASTGIR
RAJ BALLAV DAS - Appellant
Versus
HARIPADA DAS - Respondent
P. And A. Suit 845 Of 1980
Decided On : 07/18/1983
BENAMI TRANSACTION - LIMITATION - PARTITION - BURDEN OF PROOF - ORAL EVIDENCE - ADMISSIBILITY - ELEMENTS OF BENAMI TRANSACTION - INTENTION OF PARTIES - SURROUNDING CIRCUMSTANCES - SOURCE OF PURCHASE MONEY - POSSESSION OF PROPERTY - MOTIVE FOR BENAMI TRANSACTION - RELATIONSHIP OF PARTIES - CUSTODY OF TITLE DEEDS - CONDUCT OF PARTIES.
Fact of the Case:
The plaintiffs filed a suit for a declaration that each of them has l/5th share in the premises No. 14 Buddhu Ostagar Lane, Calcutta and the allotment in severalty of their respective shares, also for a declaration that the plaintiffs 1 and 2 and the defendant No. 1 Byomkesh Chandra Das the predecessor of the defendant 2 acted as a benamdar of plaintiff 3 and one Sajan Bala Dassi in respect of their respective shares in acquiring the premises No. 14, Buddhu Ostagar Lane, Calcutta and for other consequential reliefs.
Finding of the Court:
1. The plaintiff No. 3's claim for a declaration of share as also for partition of the properties is not barred by the Law of Limitation. 2. The plaintiff failed to prove the case of benami beyond reasonable doubt.
Issues: 1. Are the plaintiffs 1 and 2 and the defendants jointly entitled to the leasehold property situate at premises No. 14, Buddhu Ostagar Lane, Calcutta, as alleged in the written statement? 2. Is the Card-Board business carried on under the name and style of S. S. Card Board Box Company at the said premises a joint family business as alleged in the written statement? 3 (a) Has Krishna Mohan Das, the plaintiff 3, any right, title or interest in the premises No. 14, Buddhu Ostagar Lane, Calcutta as alleged in the plaint? 3 (b) Is Krishna Mohan Das, the plaintiff 3, interested in the Card Board Business under the name and style of S. S. Card Board Box Company carried on at premises No. 14, Buddhu Ostagar Lane, Calcutta? 4. To what relief, if any, are the parties entitled?
Ratio Decidendi: 1. The right to sue for a declaration of title and partition accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. 2. The burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. 3. The true character of the transaction is governed by the intention of the person who has contributed the purchase money and the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motive governing their action in bringing about the transaction and their subsequent conduct etc.
Final Decision: Decree in terms of prayers (1) and (2) and appoints Miss Aruna Mukherjee, Advocate as a Commissioner of Partition to effect partition in metes and bounds into five equal shares. The remuneration of the Commissioner is fixed at 60 G. Ms. to be shared by the parties equally. Each party to pay and bear its own costs. Stay granted for a fortnight from date.
( 1 ) THE plaintiffs Raj Ballav Das, Nani Gopal Das and Krishna Mohan Das all residing at No. 14 Buddhu Ostagar Lane, Calcutta filed this suit against Haripada Das, Smt. Renubala Das, Dilip Kumar Das, Sabita Rani Das, Pratima Rani Das, Chhabi Rani Das, Arati Das and Sulkkha Das for a declaration that each of the plaintiffs has l/5th share in the premises No. 14, Buddhu Ostagar Lane, Calcutta and the allotment in severalty of their respective shares, also for a declaration that the plaintiffs 1 and 2 and the defendant No. 1 Byomkesh Chandra Das the predecessor of the defendant 2 acted as a benamdar of plaintiff 3 and one Sajan Bala Dassi in respect of their respective shares in acquiring the premises No. 14, Buddhu Ostagar Lane, Calcutta and for other consequential reliefs.
( 2 ) ACCORDING to the plaintiffs the plaintiffs and the defendants are the joint owners in possession as permanent lessees of the premises. One Rebati Mohan Das had two sons Radha Ballav Das and Pran Ballav Das. Radha Ballav died in the year 1940 and Pran Ballav died in the year 1948 leaving his widow Sajan Bala Dassi as his own heir and legal representative. Radha Ballav left behind his widow Suresh Nandini Das who died in the year 1960 and Raj Ballav, Byomkesh, Nani Gopal, Krishna Mohan and Haripada Das as his sons and Labonya Prova Das as his daughter. Byomkesh died in the year 1977 leaving behind his widow Renu Bala Das, Dilip Kumar as his son and Sabita, Protima, Chhabi, Arati and Sulekha as his daughters. The parties were residents of Dacca in Bangladesh prior to partition of India. The plaintiffs, the defendants No. 1 and their uncle Pran Ballav Das were joint owners and in possession of a house and building numbered as No. 61, Kulutola in Dacca before the partition. After the partition the plaintiffs decided to come to Calcutta by exchanging their property at Dacca with this property belonging to a muslim gentleman. As a result on 7th Aug. 1950 by an agreement in writing between Sajan Bala Dassi, the widow of Pran Ballav Das the plaintiffs in one part and one Samsul Haque Chowdhury on the other part agreed that premises No. 61, Kulutola of Dacca would be exchanged with premises No. 14, Buddhu Ostagar Lane, Calcutta belonging to the said Samsul Haque Chawdhury. Apart from the exchange of the two properties the plaintiffs as also the other co-owners would pay a sum of Rs. 5,500/- to the said samsul Haque Chowdhury. The price of the premises No. 14, Buddhu Ostagar Lane, was assessed
verbally at Rs. 20,000/- and the premises No. 61, Kulutola Dacca was assessed at Rs. 14,500/- Under the circumstances the difference in value was paid in cash. The plaintiff No. 1 paid a further sum of Rs. 634/- as and by way of advance to the said Samsul Haque Chowdhury. According to the plaintiffs although the said cheque was granted by the plaintiff 1 it was given for and on behalf of all the owners. Permanent deeds of lease were executed in respect of 14, Buddhu Ostagar Lane, Calcutta in favour of the plaintiffs. Similarly a registered deed of lease was executed in respect of premises No. 61, Kulutola Dacca. After the execution of the lease plaintiffs Nos. 1 and 2 and the defendant 1 Haripada Das and the said Byomkesh Ch. Das came to Calcutta with their families leaving plaintiff No. 3. Krishan Mohan Das and the widow of Pran Ballav Das, Sajan Bala Dassi at Dacca, according to the plaintiff for the purpose of giving possession of the Dacca Property to Samsul Haque Chowdhury and also to look after the common interests of the plaintiffs and the defendant. It was agreed according to the plaintiff that the lease in respect of 14, Buddhu Ostagar Lane, Calcutta would be executed by the parties present in Calcutta for themselves and also as the benamdars of plaintiff 3 and the said Sajan Bala Dassi. Execution and registration of the lease was effected by the other parties and not by the plaintiff 3 and the said Sajan Bala Dassi. It was the plaintiff's case
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