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High Court Of Calcutta
Before: Arun Kumar Mitra And Kishore Kumar Prasad, JJ.
ASHALATA DUTTA - Appellant
Versus
GITA DUTTA, AVIK KUMAR DUTTA - Respondent
F. M. A. 2329 Of 2005
Decided On : 08/11/2006
BENAMI TRANSACTION (PROHIBITION) ACT, 1988 - SECTION 3(2) - TEMPORARY INJUNCTION - SUIT FOR DECLARATION OF TITLE AND INJUNCTION - WIFE'S RIGHT TO PURCHASE PROPERTY IN HER NAME - BURDEN OF PROOF - BALANCE OF CONVENIENCE - IRREPARABLE INJURY - GRANT OF TEMPORARY INJUNCTION.
Fact of the Case:
The plaintiffs, daughter-in-law and grandson of the appellant, filed a suit for declaration of title and injunction, seeking a declaration that the suit property was the real, sole, and absolute property of their deceased father-in-law, Pashupati Dutta, who had acquired it in the benami of his wife, the appellant. They also sought a declaration that they had a one-fourth undivided share in the suit property after Pashupati Dutta's death, a declaration that the plaintiff was entitled to reside in the suit premises, and a declaration that the judgment and order passed by the learned Chief Judge, Small Causes Court, Calcutta, in respect of their title and status were bad, illegal, and not binding upon them.
Finding of the Court:
The court held that the plaintiffs had a prima facie fair and debatable case for trial, which could only be determined upon extensive trial on evidence. The court also held that the balance of convenience weighed in favor of the plaintiffs, as they were in possession of the flat in question and would be greatly inconvenienced if they were dispossessed during the pendency of the suit. The court further held that the plaintiffs would suffer irreparable loss and injury if they were dispossessed through the machinery of the Court pursuant to an order of the Small Causes Court before the adjudication of the suit.
Issues: 1. Whether the suit was barred by the prohibition in subsections (1) and (2) of section 4 of the Benami Transaction (Prohibition) Act, 1988. 2. Whether the plaintiffs had a prima facie fair and debatable case for trial. 3. Whether the balance of convenience weighed in favor of the plaintiffs. 4. Whether the plaintiffs would suffer irreparable loss and injury if they were dispossessed during the pendency of the suit.
Ratio Decidendi: 1. The court held that the suit was not barred by the prohibition in subsections (1) and (2) of section 4 of the Benami Transaction (Prohibition) Act, 1988, as the plaintiffs were entitled to enforce their rights in the property concerned if they could show that the property had not been purchased by their deceased father-in-law in the name of his wife for her benefit. 2. The court held that the plaintiffs had a prima facie fair and debatable case for trial, as the averments in the plaint indicated that there was no intention on the part of their deceased father-in-law to purchase the suit property for the benefit of his wife or by way of advancement. 3. The court held that the balance of convenience weighed in favor of the plaintiffs, as they were in possession of the flat in question and would be greatly inconvenienced if they were dispossessed during the pendency of the suit. 4. The court held that the plaintiffs would suffer irreparable loss and injury if they were dispossessed through the machinery of the Court pursuant to an order of the Small Causes Court before the adjudication of the suit.
Final Decision: The court dismissed the appeal and affirmed the order of the learned lower court, directing the parties to maintain status quo in respect of the residential portion of the plaintiffs out of the suit premises till disposal of the suit.
( 1 ) IN this appeal, the order No. 9 dated 20. 06. 2005 passed by Shri N. Chatterjee, learned Judge, 11th Bench, City Civil court, Calcutta in Title Suit No. 451 of 2005 is assailed by the appellant smt. Ashalata Dutta. The respondent Nos. 1and 2 viz. Smt. Gita Dutta and shri Avik Kumar Dutta as daughter-in-law and grandson of the appellant herein had filed the aforesaid Title Suit for declaration and permanent injunction and in that suit an application under Order 39 Rules 1 and 2 read with section 151 of the Code of Civil Procedure for grant of temporary injunction restraining the appellant from evicting them from the suit flat by execution of the Judgment and order passed by the learned Chief Judge, Small Causes Court, Calcutta in S. C. C. Suit No. 201 of 2001. The learned Trial Judge after hearing the parties and on consideration of the materials on record, disposed of the said application for temporary injunction in a slip shot manner directing the parties to maintain status-quo in respect of the residential portion of the plaintiffs (respondent Nos. 1 and 2 herein) out of the suit premises till disposal of the suit.
( 2 ) THE plaintiffs' case, bereft of unnecessary details and relevant for the points raised in this appeal in as follows:
( 3 ) THE plaintiffs brought the aforesaid suit for declaration that pashupati Dutta, since deceased, was the real, sole and absolute owner of the suit property which he acquired in the benam of his wife, the appellant herein; for declaration that they have one-forth undevided share in the suit property after the death of Pashupati Dutta; for declaration that plaintiff No. 1 being a widowed daughter-in-law has the right of maintenance including the right to reside in the suit premises no. 240-A, Acharya Prafulla Chandra Roy Road, Calcutta - 700 004 and for further declaration that the Judgment and order dated 30. 07. 2004 passed by the learned Chief Judge, Small Causes Court, Calcutta in respect of their title and status is bad, illegal and not binding upon them.
( 4 ) AFTER entering appearance in the suit, the present appellant who is the wife of Pashupati Dutta filed Affidavit-in-Opposition contending, inter-alia, that the allegations of the plaintiffs were not only false and frivolous but also motivated. The appellant categorically denied all the material allegations of the respondent Nos. 1 and 2 herein. According to the appellant, the application for temporary injunction as also the suit was liable to be dismissed in view of the fact that the suit appears from the averments made in the plaint to be barred by section 4 (1) of the benami Transaction (Prohibition) Act, 1988. The appellant had categorically stated that she had purchased the suit property out of her own "stridhana"; that there was no contribution whatsoever by her deceased husband, Pashupati Dutta; that after purchase of the suit property, she as an absolute owner started residing therein along with her husband, sons and daughters; that her husband did never have any sort of right, title and interest over the suit property; that her sons and daughters including Ajit Kumar Dutta, the predecessor-in-interest of the plaintiffs had ever denied her absolute ownership over the suit property; that after the death of Ajit Kumar Dutta, she allowed the plaintiffs to reside and stay in the flat-in-question purely on permissive basis or as a licensee and the plaintiffs to avoid eviction pursuant to order of S. C. C. Suit No, 201 of 2001 have filed the aforesaid suit with an ulterior motive only to harass her and to cast cloud upon her exclusive right over the suit property. In fine, the appellant had prayed for dismissal of the application for temporary injunction.
( 5 ) THE respondent Nos. 1 and 2 herein filed Affidavit-in-Reply to the purported Affidavit-in-Opposition filed on behalf of the appellant against the application for temporary injunction denying all the material allegations as made in the Affidavit-
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