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High Court Of Calcutta
SAMARESH BANERJEE, Gorachand De
PRATIMA GHOSH - Appellant
Versus
BINAPANI PAUL - Respondent
FIRST APPEAL 128 Of 1981
Decided On : 07/29/2003
PARTITION SUIT - BENAMI TRANSACTION - PURCHASE OF PROPERTY IN THE NAME OF WIFE - INTENTION TO BENEFIT WIFE - EVIDENCE - PRESUMPTION - ADVANCEMENT - RESULTING TRUST - MUTATION OF NAMES - TITLE - MUNICIPAL RECORDS - POSSESSION - MANAGEMENT OF PROPERTY - CONSTRUCTION OF BUILDING - LAW PREVAILING AT THE RELEVANT TIME - ISSUES - DECREE - COSTS.
Fact of the Case:
Plaintiffs instituted a suit for partition and accounts alleging that Dr. Asutosh Ghosh purchased premises No. 24, Convent Road, Calcutta (suit property) in the name of his wife, Smt. Supravabala Ghosh, without keeping any beneficial interest in himself. Dr. Ghosh died in 1940 leaving behind the plaintiffs and defendants as his legal heirs. Supravabala Ghosh died in 1942 leaving behind the plaintiffs and defendants and a married daughter, Ira Ghosh. The defendant No. 1 contested the suit denying the material allegations made in the plaint. He claimed that Dr. Asutosh Ghosh purchased the suit land and an old building with his own money in the benami of his wife Supravabala Ghosh and constructed the present three storeyed building after spending his own money to the extent of Rs. 60,000/-.
Finding of the Court:
The court found that the suit property was purchased by Dr. Ghosh for the benefit of his wife for which it became her stridhan property and after her death, it would be heritable by six daughters and one son. Accordingly, the Trial Court decreed the suit after declaring that the three plaintiffs had their title to the extent of 3/7th share in the suit property.
Issues: 1) Is the suit maintainable? 2) Are the plaintiffs entitled to get a decree for partition of the suit property? 3) To what other reliefs, if any, are the plaintiffs entitled?
Ratio Decidendi: 1. The purchase of property in the name of wife or child very often can be made without slitest intention of vesting in the donee any beneficial interest in the property purchased. 2. Once it is proved that the consideration has been provided by the husband, it remains his property, there being no presumption of advancement. 3. The onus is upon the plaintiff to show that the property in suit was purchased by the husband for the benefit of his wife and in the absence of any evidence of any intention to give the property to her as a provision for her or otherwise beyond the bare fact of registration in her name the purchase is to be regarded as 'benami Transaction' and the beneficial interest remains in the husband. 4. The entries in the Corporation record do not create any title in favour of the daughters of Dr. Asutosh Ghosh.
Final Decision: The court allowed the appeal, set aside the judgment and decree of the Trial Court, and dismissed the suit on contest without cost.
( 1 ) THIS appeal by the defendants is directed against the judgment and decree dated 28. 2. 1981 passed by Mr. A. K. Sen, Subordinate judge, Ninth Court, Alipore, 24-Pgs. (S) in Title Suit No. 86 of 1973.
( 2 ) THE three plaintiffs instituted this suit for partition and accounts on 19th september, 1973 alleging that Dr. Asutosh Ghosh, who generally practised at rangoon and was governed by the Dayabhaga School of Hindu Law, in order to benefit of his wife, Smt. Supravabala Ghosh purchased premises No. 24, Convent Road, Calcutta (hereinafter referred to as 'the suit property' for brevity) without keeping any beneficial interest in himself. Dr. Ghosh died on 29th July, 1940 leaving behind the three plaintiffs and the defendant Nos. 2 to 4 being the daughters and Amal Kumar Ghosh (the original defendant No. 1) being the only son as his legal heirs. Dr. Asutosh Ghosh never claimed the suit premises to be his own property and at his instance, mutation of the said premises was done in the name of his said wife Supravabala Ghosh who exercised all acts of ownership and possession during and after the lifetime of Dr. Asutosh Ghosh. The said Supravabala Ghosh died in 1942 leaving behind the said plaintiffs and the defendants and a married daughter, Ira Ghosh. The said plaintiffs and defendants accordingly acquired one-seventh share each in the suit property as the married daughter Ira Ghosh being already married when the succession reopened could not inherit any property. The suit property was all along used as residential dwelling house of the parties, but due to the ill-treatment of the wife of the defendant No. 1 the defendant Nos. 2 to 4 left the suit property in 1958. The plaintiff Nos. 1, 2 and 3 were married in the year 1944, 1946 and 1951 respectively and the defendant No. 4 was married in the year 1970. The defendant No. 1 started residing in the second floor of the suit property, and the ground floor and the first floor were let out to two tenants. The defendant No. 1, on behalf of the plaintiffs, used to realize rent from the tenants, paid taxes and made necessary repairs of the suit property, but never rendered any account to the plaintiffs. He also turned down the plaintiffs' request for partition of the suit property. Accordingly the instant suit has been filed for partition and accounts.
( 3 ) DURING the pendency of the suit, the defendant No. 1 died on 2nd December, 1975 and his widow and the only daughter were made defendant Nos. 1a and ib respectively in the suit.
( 4 ) THE defendant No. 1 alone contested the suit after filing a written statement on 9th September, 1974 denying the material allegations made in the plaint. His specific defence is that Dr. Asutosh Ghosh purchased the suit land and an old building on the suit property with his own money in the benami of his wife supravabala Ghosh at a price of Rs. 25,000/- as early as on 16th November, 1935 and thereafter, he constructed the present three storeyed building after spending his own money to the extent of Rs. 60,000/ -. The wife Supravabala ghosh had no personal income or stridhan for the purchase and development of the suit property. After the death of Dr. Asutosh Ghosh on 29th July, 1940, the wife Supravabala and the only son, Amal Kumar Ghosh (defendant No. 1)inherited the suit property as the only legal heirs. Supravabala died on 26th may, 1942 long before the enactment of the Hindu Succession Act and after her death, her right developed upon the defendant No. 1 who actually enjoyed the property as his own. Supravabala never exercised her right and possession in the suit property and thus, the daughters of Dr. Asutosh Ghosh did not acquire any right, title and interest in the suit property. However, the defendant No. 1 after the death of Dr. Ghosh maintained and brought up the plaintiffs and the other defendants, and incurred all expenses of the marriage of four sisters. The defendant No. 1 also inducted tenants in the year 1953 in the
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