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2016 Supreme(Cal) 327
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
Indrajit Chatterjee, J.
Anangadev Barman - Appellant
Versus
Jagadish Chandra Maity & Anr. - Respondents
S.A. No. 635 of 2008
Decided On : 27-07-2016
For the Appellants : Mr. Gopal Chandra Ghosh, Mr. R.N. Mahato.
For the Respondents: Mr. Puspendu Bikash Sahu, Mr. Prasanta Bishal.
The court held that the onus of proof lies on the person claiming the property to be a benami transaction, but when the parties adduced oral and documentary evidence, the question of burden of proof pales into insignificance.
Headnote:
BENAMI TRANSACTION - SUIT FOR DECLARATION - SUBSTANTIAL QUESTION OF LAW - INTERPRETATION OF DEED - POSSESSION OF PROPERTY - ONUS OF PROOF.
Fact of the Case:
Plaintiff filed a suit for declaration that the property was purchased by him in the names of defendant Nos.1 and 2 as benami transaction. The defendant No.1 claimed that he purchased the property from the vendor and the name of defendant No.2 was included as per the instruction of his father.
Finding of the Court:
The court held that the deed in question was a benami transaction and the defendant No.1 was a benamidar of the plaintiff. The court also held that the plaintiff remained in possession of the suit property.
Issues: 1. Whether the courts below committed substantial error of law in passing a decree in favour of the plaintiff on the ground that appellant practiced fraud upon the plaintiff by interpolating his name in the deed which is in consistent with the case made out by the plaintiff in paragraph 7 of the plaint wherein plaintiff made no such case and the definite case of the plaintiff was that defendant Nos.1and 2 being his friends he decided to purchase the property in the benam of the defendant Nos. 1 and 2 to avoid preemption at the instance of his co-sharer.2. Whether the learned courts below committed substantial error of law in holding that the appellant did not mutate his name after purchase from Manorama by totally overlooking the existence of Exhibits “B”, “E”, ‘H’, “H1”, “I” and “J” which show that the defendant No.1 mutated his name and had been paying rent pursuant to such mutation.
Ratio Decidendi: 1. The court relied on the evidence on record, including the deed in question, the testimony of the witnesses, and the conduct of the parties, to conclude that the deed was a benami transaction and that the defendant No.1 was a benamidar of the plaintiff.2. The court also relied on the fact that the plaintiff was in possession of the deed and that the defendant No.1 had not taken any steps to rectify the deed or to obtain a deed of disclaimer from the defendant No.2.
Final Decision: The court dismissed the second appeal and confirmed the judgment and decree of the First Appellate Court.
Indrajit Chatterjee, J.
1. This second appeal has been preferred by the defendant/appellant assailing the judgment and decree passed by the First Appellate Court in connection with Title Appeal No.59 of 2007 disposed of by the learned Fourth Additional District Judge, Paschim Medinipur on 29th May, 2008 wherein the Court was pleased to confirm the judgment and decree passed by the Learned Trial Court being the First Court of Civil Judge, Junior Division, Paschim Medinipur dated 16th April, 2007 in connection with Title Suit No. 57A of 1984.
2. The parties fought the legal battle with the following pleadings. The case of the plaintiff was thus, Bhabataran Bar @ Barman, the original appellant No.1 was the defendant no.1 and defendant no.2 was Haripada Jana. Jagadish Chandra Jana, the plaintiff and Bhabataran Bar were bosom friends. Haripada Jana was the adopted son of the aunt of Jagadish. They belonged to the same village Bishnupur, district Midnapur. They decided to purchase some sub-plots from Monarama Chowdhury. The plaintiff was a Teacher of Bishnupur High School and was also the private tutor of the son of defendant No.1, Defendant No.1 used to work as Lower Division Clerk in Midnapur collectorate who use to reside in a mess at Mirbazar in Midnapur town along with Jitendranath Bar. The plaintiff decided to purchase plot no.24 and defendant No.1 decided to purchase plot no.28 and Jitendranath Bar decided to purchase sub-plot 27. Earnest money of Rs.150/- was paid for each of the sub-plots to Manarama Chowdhury respectively be the vendees. Balance amount in respect of the plaintiff’s proposed subplot was fixed Rs.482/-. The plaintiff agreed to pay the balance amount to Manorama Chowdhury on the date of registration before the Registrar.
3. The plaintiff made out his mind to purchase that sub-plot no.24 in the name of any beneficial person in benami as he was apprehending that if the properly was purchased in his name then that might have been made a subject matter of Partition Suit being Title Suit No. 53 of 1959 pending before the First Court of Sub- Judge, Medinipur between the co-sharer of the plaintiff.
4. The defendant no.2 was chosen by the plaintiff as the person to be the benamdar and she agreed to register one ‘Nadabi Patra’. A deed was prepared in accordance with consent of the defendant no.2. Monorama Chowdhury was not in a position to go to the Sub- Registrar to register the deed. The deed was to be presented for registration. The deed was drafted in the name of the defendant NO.2 as the vendee but defendant No.2 could not attend the venue where the deed was drafted. Then the scribe gave a proposal to insert the name of defendant No.1 along the defendant No.2 and the later agreed and as such before the name of the defendant no.2 the name of defendant no.1 was written on the deed in question and the other portion of the body remained intact as if it was written in one’s name.
5. It was the claim of the plaintiff before the Trial Court that thereafter the balance amount of Rs.482/- was paid to Monorama Chowdhury by him and as such the deed was executed. It was agreed by the defendant no.1 also, that he will execute one ‘Nadabi patra’ in favour of the plaintiff in respect of the suit property. He did not keep his words even after the disposal of that title suit and repeated demands made by the plaintiff lastly on 11.012.1983. The defendant No.1 declined to register any deed of disclaimer or ‘Nadabi Partra” and as such the title suit was registered before the trial court.
6. The defendant no.1 died during pendency of the appeal and his son Anangadev Barman in whose favour Probate was granted by the Court substituted himself as the appellant.
7. The case of the defendant no.1 before the Trial Court was that all the allegations made by the plaintiffs are false and the specific case of the defendant no.1 before the trial Court was that he purchased the suit property being sub plot no.24 from Monorama Chowdhury in his
