Back
1997 Supreme(Cal) 362
High Court Of Calcutta
DEBI PRASAD SARKAR
SAMARESH MOHAN GHOSH - Appellant
Versus
MUKTESH MOHAN GHOSH - Respondent
C. O. 426 Of 1997
Decided On : 12/9/1997
A.P.Roy Choudhury, ARCHANA MANNA, PRIYABRATA MUKHERJI, S.S.Haque, Sumit Roy
The Benami Transaction (Prohibition) Act of 1988 has no retrospective effect and cannot be applied to suits, claims, or actions to enforce any right in a property held benami against a person in whose name such property is held or any other person, if such proceeding is initiated by or on behalf of a person claiming to be the real owner thereof, prior to the coming into force of section 4(1) of the Act.
Headnote:
CIVIL PROCEDURE CODE, 1908 - ORDER 1 RULE 10 - ADDITION OF PARTIES - BENAMI TRANSACTION - TRUST - DISTINCTION - REPEAL OF SECTIONS 81, 82, 94 OF THE INDIAN TRUST ACT, 1982 BY SECTION 7 OF THE BENAMI TRANSACTION (PROHIBITION) ACT, 1988 - EFFECT.
Fact of the Case:
The petitioner, Muktesh Mohan Ghosh, filed an application under Order 1 Rule 10 of the CPC to add himself and his four sisters as parties to a partition suit. The petitioner claimed that the suit property was the property of their father, Tripura Binode Ghosh, who purchased the property in the name of his two sons, Samaresh and Nikhilesh, for the benefit of himself, his daughters, and the petitioner. The trial court rejected the application, but the Additional District Judge allowed it.
Finding of the Court:
The High Court allowed the petition under Article 227 of the Constitution and set aside the order of the Additional District Judge. The court held that the impugned order was passed without jurisdiction and that the petitioner and his sisters should not be added as parties to the partition suit.
Issues: 1. Whether the plea of benami transaction can be accepted by the court after the passing of the Benami Transaction (Prohibition) Act of 1988? 2. Whether the disputed property was held by Samaresh and Nikhilesh as trustees for their father, Tripura Binode Ghosh, and other family members? 3. Whether the revisional court below acted within its jurisdiction by allowing the application for addition of parties?
Ratio Decidendi: 1. The court held that the Benami Transaction (Prohibition) Act of 1988 has no retrospective effect and cannot be applied to suits, claims, or actions to enforce any right in a property held benami against a person in whose name such property is held or any other person, if such proceeding is initiated by or on behalf of a person claiming to be the real owner thereof, prior to the coming into force of section 4(1) of the Act. 2. The court held that the evidence did not support the claim that the disputed property was held by Samaresh and Nikhilesh as trustees for their father and other family members. The court noted that the property was purchased in 1972, and that neither the father nor any of the other family members had raised the plea that the property was held in trust for them until more than 21 years later. 3. The court held that the revisional court below acted without jurisdiction in allowing the application for addition of parties. The court held that the petitioner and his sisters had no interest in the suit property and that their addition as parties would only serve to complicate the suit and cause unnecessary delay.
Final Decision: The High Court allowed the petition under Article 227 of the Constitution and set aside the order of the Additional District Judge. The court held that the impugned order was passed without jurisdiction and that the petitioner and his sisters should not be added as parties to the partition suit.
( 1 ) THIS is an application under Article 227 of the Constitution of India directed against an order dated 15. 1. 94 passed in Title Suit No.-23/1994 by the learned Additional District Judge, 8th Court, Alipore.
( 2 ) THE facts leading to this revisional application are, in short, as follows :-"the dispute arises out of Partition Suits. The subject matter of the suit i. e. the suit property stands in the name of Samaresh Mohan Ghosh and Nikhilesh Mohan Ghosh in equal share as per the Deed of Purchase. Now, Samaresh filed Title Suit No. 23/1994 against Nikhilesh for partition of his half share. On the other hand, Nikhilesh as plaintiff filed another Suit No. 53/1994 for partition against Samaresh through the constituted Attorney namely Muktesh Mohan Ghosh-the elder brother against Samaresh and this Muktesh also as constituted Attorney filed written statement in Title Suit No. 23/1994 filed by Samaresh as plaintiff. Now, this Muktesh and other filed an application under order 1 Rule 10 of the CPC for his addition and the addition of his four sisters to the Suit as parties on the ground that the suit property was the property of their father-Late Tripura Binode Ghosh who purchased the property in the name of his two sons-Samaresh and Nikhilesh for the benefit of himself, the daughters, remaining son i. e. the present petitioner and the mother i. e. the wife of Late Tripura Binode Ghosh. The learned Trial Court was pleased to reject that application and against that order of rejection a revisional application under section 115 A of the CPC. was filed before the learned District Judge, Alipore and the matter was disposed of by the learned Additional District Judge, Alipore who was pleased to set aside the order of the Learned trial court and allowed the prayer for addition of parties i. e. the present petitioner and his four sisters, mother being dead. "
( 3 ) ON being aggrieved by such order, the present application under Article 227 of the Constitution has been filed by the petitioner on the ground that the learned Additional District Judge acted without jurisdiction and as such impugned order should be set aside.
( 4 ) LEARNED Advocate for the petitioner has also taken up the plea that after passing of the Benami Transaction (Prohibition) Act of 1988 such plea of benami transaction cannot be accepted by the court.
( 5 ) BUT it is contended by the O. P. s that section 4 (1) of the Benami Transaction (Prohibition) Act has got no retrospective effect in terms of the Judgment of the apex court reported in AIR-1996-SC-238. The disputed purchase took place on 17. 1. 1972 i. e. long before the enforcement of the Benami Transaction (Prohibition) Act, 1988.
( 6 ) ON the other hand, the learned Advocate for the petitioner points out that the apex court in its Judgment reported in AIR-1996-SC-238 as referred to by the O. P. s creates a bar undoubtedly against application of the provision of that section to suit, claim or action to enforce any right in a property held benami against a person in whose name such property is held or any other person, if such proceeding is initiated by or on behalf of a person claiming to be the real owner thereof, prior to the coming into force of section 4 (1) of the Act. In this context, it is further submitted by the learnedadvocate for the petitioner that the said Act was enforced on 19th May, 1988. But the instant Suits were instituted in 1994 i. e. long after the date of enforcement of the Act. Therefore, in such suits the plea of benami transaction cannot be pleaded.
( 7 ) THE learned Advocate appearing for the O. P. s, on the other hand, has tried to assail the revisional application on three points : firstly, on the plea that it was not a benami transaction but it was a Trust under the Indian Trust Act and as such it comes under the provision contained in section 4 (3) (b) of the Benami Transaction (Prohibition) Act, 1988. The said enactment lays down that where the person i
