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High Court Of Calcutta
BHAGAWATI PRASAD BANERJEE, AMAL KANTI BHATTACHARJI
MOUMITA MITRA - Appellant
Versus
RABINDRA NATH BASU - Respondent
CIV. REVI. JURI. 1438 Of 1990
Decided On : 04/10/1992
PARTITION SUIT - BENAMI TRANSACTION - PROPERTY PURCHASED FROM JOINT FAMILY FUNDS - APPLICABILITY OF BENAMI TRANSACTIONS (PROHIBITION) ACT, 1988 - COPARCENERS - TRUSTEES - FIDUCIARY CAPACITY - VOID AND VOIDABLE TRANSACTIONS - CANCELLATION OF DOCUMENTS - SHAM AND COLOURABLE TRANSACTIONS.
Fact of the Case:
A partition suit was filed for partition of the undivided properties. The first Appellate Court and High Court decreed the suit in part and allowed partition in respect of 5/12th share in the 'ka', 'a', and 'ja' schedule properties and half share in respect of 'kha', 'ga', 'gha', 'uma' and 'catha' schedule properties. The plaintiff's claim for partition in respect of 'cha' schedule properties was disallowed. The plaintiff got a decree for partition in respect of 5/12th share in the 'ka', 'a', and 'ja' schedule properties and half share in respect of 'kha', 'ga', 'gha', 'uma' and 'catha' schedule properties. The plaintiff's claim for partition in respect of 'cha' schedule properties was disallowed. The plaintiff and defendant No. 1 died in the meantime. Their mother Sarojini also died and all of them were substituted by their legal heirs. The defendants No. 1 (e) and 2 filed a petition praying that in view of the provisions of the Benami Transactions (Prohibition) Act, 1988, the plaintiffs can not recover some of the properties which were purchased in the benami of Sarojini. The Learned Assistant District Judge accepted thee contention of the petitioners and accordingly passed an order deleting the 'kha', 'ga', 'gha' and 'uma' schedule properties from the plaint and the preliminary decree.
Finding of the Court:
The court held that the properties purchased in the name of Sarojini were actually purchased out of the joint family funds and that as such the same could not be treated as a benami transaction. The court further held that the principle of res judicata applied in this case on the principle enunciated in AIR 1988 SC 1531 (A. R. Antulay v. R. S. Nayak and Anr. ). Thus according to Mir. Dutta the extent of properties to be partitioned having been conclusively determined (the parties having not chosen to challenge the High Court's judgement by an appeal before the Supreme Court) the same can not be reopened at the time of passing the anal decree. The court also held that the provisions of the Benami Transactions (Prohibition) Act, 1988 were not applicable in this case as the transaction was not a benami transaction as defined in the Act. The court further held that the documents executed by Sarojini in favour of the defendants Nos. 2 and 3 were sham and fictitious transactions and that the same could not be called in question in view of the bar imposed by section 4 of the Act.
Issues: 1. Whether the properties purchased in the name of Sarojini were actually purchased out of the joint family funds and that as such the same could not be treated as a benami transaction. 2. Whether the principle of res judicata applied in this case on the principle enunciated in AIR 1988 SC 1531 (A. R. Antulay v. R. S. Nayak and Anr. ). 3. Whether the provisions of the Benami Transactions (Prohibition) Act, 1988 were applicable in this case. 4. Whether the documents executed by Sarojini in favour of the defendants Nos. 2 and 3 were sham and fictitious transactions and that the same could not be called in question in view of the bar imposed by section 4 of the Act.
Ratio Decidendi: 1. The court held that the properties purchased in the name of Sarojini were actually purchased out of the joint family funds and that as such the same could not be treated as a benami transaction. 2. The court held that the principle of res judicata applied in this case on the principle enunciated in AIR 1988 SC 1531 (A. R. Antulay v. R. S. Nayak and Anr. ). 3. The court held that the provisions of the Benami Transactions (Prohibition) Act, 1988 were not applicable in this case as the transaction was not a benami transaction as defined in the Act. 4. The court held that the documents executed by Sarojini in favour of the defendants Nos. 2 and 3 were sham and fictitious transactions and that the same could not be called in question in view of the bar imposed by section 4 of the Act.
Final Decision: The revisional application was allowed and the order dated 14. 3. 90 of the Trial Court deleting the 'kha', 'ga', 'gha', and 'uma' schedule properties from the plaint and the preliminary decree was set aside. The Trial Court was directed to proceed to effect a final decree after ascertaining the shares of the heirs of Paresh and Naresh who inherited their mother's share of the property.
( 1 ) THIS revisional application is directed against an order of the Assistant District Judge, fifth court, Alipore by which he ordered the striking out of certain properties from the schedule to the plaint of a partition suit. The facts of the case may be succinctly stated as follows.
( 2 ) THE original plaintiff one Paresh Nath Basu instituted a partition suit against his brother Naresh Chandra Basu, Naresh's son and wife Ramendra Nath Basu and Amala Basu and the plaintiff's mother Sarojini Basu for partition of their undivided properties mentioned in the different schedules to the plaint. The suit was decreed in part by the lower court in the preliminary form. On appeal the first Appellate Court allowed the appear in part and decreed the suit in a preliminary form. The plaintiff got a decree For partition in respect of 5/12th share in the 'ka', a. nd 'ja' schedule properties and half share in respect of 'kha', 'ga', 'gha', 'uma' and 'catha' schedule properties. The plaintiff's claim for partition in respect of 'cha' schedule properties was disallowed. On a second appeal being preferred before the High Court, the said court dismissed the appeal and endorsed the decree of the first Appellate Court.
( 3 ) THE main contention in regard to the share in the properties was, however, in respect of 'kha', 'ga', and 'gha' schedule properties. These properties were purchased in the name of Sarojini, the mother of the plaintiff and the defendant No. 1 Naresh. The plaintiff's case is that the parties descended from a common ancestor, namely, late Kshetra Mahon Basu who died leaving two sons, Manmatha and Haren. Manmatha married but became insane and died in 1932 leaving his wife Sarojini and two sons Naresh and Paresh. It is stated that certain properties were purchased in the name of Sarojini out of the nucleus of the joint family fund contributed by Haren and Paresh (Naresh having no income at the relevant time ). The said properties were purchased in the name of Sarojini between the period from the 9th April, 1937 and the 12th September, 1946. It is the case of the plaintiff that after the death of Manmatha, Haren became the Karta of the joint family and out of compassion towards Sarojini whose husband died an insane, he purchased the properties in her name out of the joint family funds. It has been further alleged that the defendant No. 1 Naresh with a view to grabbing the properties obtained two deeds - one fictitious sale deed in favour of his wife Amala and another fictitious deed of gift in favour of his minor son Ramendra, executed by his mother Sarojini. The plaintiff claims that the properties in question were purchased in the benami of Sarojini out of the joint family funds and that the same belong to the joint family in which the plaintiff and his brother had equal shares. The first Appellate Court accepted the plaintiff's case of purchasing the property in the benami of Sarojini and decreed the suit accordingly. As regards the sale deed and the deed of gift executed by Sarojini in favour of defendant Nos. 2 and 3 the first Appellate Court held that those deeds were sham and colourable ones. The said Court, therefore, decreed the suit in respect of the properties held in the benami of Sarojini taking the same as belonging to the joint family and being inherited by Naresh and Paresh. In the High Court the finding of the lower Appellate Court regarding the benami nature of the properties purchased in the name of Sarojini was confirmed. As regards the subsequent documents created by Sarojini in favour of defendants Nos. 2 and 3, the High Court endorsed the views expressed by the first Appellate Court that they were sham and colourable transactions. The suit was accordingly decreed in the preliminary form in confirmation of the decree of the first Appellate Court.
( 4 ) THE aforesaid decree which was upheld in the second appeal was then required to be made final. But in the meantime the Benami, Trans
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