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IN THE HIGH COURT AT CALCUTTA
Rajasekhar Mantha, Supratim Bhattacharya, JJ.
Dilip Kumar Sarkar – Petitioner
Versus
Kalpana Neogi (since deceased) represented by Pradeep Neogi @ Khokan Neogi & Ors. – Respondents
FA 109 of 2003 with IA NO: CAN 4 of 2023
Decided On : 07-08-2023
BENAMI TRANSACTION - SUIT FOR DECLARATION OF TITLE AND RECOVERY OF POSSESSION - ADVERSE POSSESSION - LIMITATION ACT, 1963 - SECTION 33 OF THE REGISTRATION ACT - SECTION 78(6) OF THE INDIAN EVIDENCE ACT - SECTION 4 OF THE BENAMI TRANSACTIONS (PROHIBITION) ACT, 1988 - HINDU MARRIAGE ACT, 1955 - HINDU SUCCESSION ACT, 1956 - UNCODIFIED HINDU LAW - DAYABHAGA SCHOOL - BURDEN OF PROOF - ADVERSE TITLE - POWER OF ATTORNEY - EXECUTION - ATTESTATION - INDIAN EVIDENCE ACT, 1872 - SECTION 77 - SECTION 78 - PUBLIC DOCUMENTS - PROOF - REGISTRATION ACT, 1908 - SECTION 58 - PRESUMPTION OF CORRECTNESS - CODE OF CIVIL PROCEDURE, 1908 - ORDER 41 RULE 33 - DECLARATION - MUTATION OF PROPERTY - URGENT PHOTOSTAT CERTIFIED COPIES OF JUDGMENT - COSTS OF SPECIAL MESSENGER.
Fact of the Case:
Plaintiff no. 1, daughter of Sobharani Hore, and her siblings, filed a suit for declaration of title and recovery of khas possession of RS Plot No. 1044 correspondent to C.S. Plot 830 of RS Khatian No. 699 corresponding to C.S. Khatian No. 699 of J.L. No. 150 of Mouza Raiganj, District Uttar Dinajpur, West Bengal (suit property).
Finding of the Court:
The Court found that the suit property was purchased by Shobharani Hore, a citizen of East Pakistan, now Bangladesh, in 1960 from Pora Mohammad. Shobharani Hore remained a citizen of East Pakistan until her death on 27.5.1972. The Court further found that the purchase of the suit property was actually funded by Shobharani’s husband Ramesh Chandra Hore, brother-in-law of the defendant no. 1, with the funds from the sale of the Tangail properties in Bangladesh, of the Defendant no. 1, and hence the suit property was for the benefit of the defendant no. 1. Shobharani Hore did not have any income of her own and no real interest in the suit property. The Court also found that the defendant no. 1 had been in continuous possession of the suit property since 1960, for over 40 years. He has also claimed a title by adverse possession of the property against Sova Rani Hore and any of her legal heirs.
Issues: 1) Is the suit maintainable in its present form? 2) Is the suit barred by the law of limitation, waiver and acquiescence? 3) Is the suit properly valued and stamped? 4) Has the plaintiff No. 1 any locus standi to file the instant suit for and on behalf of the other plaintiffs? 5) Can the general Power of Attorney dt. 21.5.90 as alleged to have been executed by plaintiff No. 2 to 8 in favour of the plaintiff No. 1 be recognised as valid document empowering the plaintiff No. 1 to institute the instant suit? 6) Is the sale deed dated 16.6.60 executed by Pora Md. In favour of Shova rani Hore w/o. Ramesh Ch. Hore, in respect of the suit land a deed of benami transaction? 7) Is the suit property a Benami property? 8) Has the deed of relinquishment dt. 22.8.78 in respect of the suit land as alleged to have been executed by Ramesh Ch. Hore defendant No. 2 in favour of Shri Dilip Kr. Sarkar, conferred any right, title and interest to the defendant No. 1 in respect of the suit land? 9) Is the suit bad for defect of parties? 10) Can all the plaintiffs claim to have acquired right, title and interest over the suit land by inheritance after death of Shova Rani Hore? 11) Has the title of the Plaintiffs been ceased to exist on the suit land for their continuous absence of physical possession on the suit land for a period of more than 12 years. 12) Has the defendant No. 1 acquired any right, title and interest over the suit land by adverse possession? 13) Are the plaintiffs entitled to get a decree as prayed for? 14) To what other relief or reliefs are the plaintiffs entitled to”?
Ratio Decidendi: 1. The Court held that the suit was not maintainable in its present form as the Power of Attorney executed by PWs 3 to 7 in favour of PW 1 was not attested before the Indian High Commission in Bangladesh and hence was not valid in the eye of law in India. 2. The Court further held that the Hindu Marriage Act, 1955 and Hindu Succession Act, 1956 would have no manner of application to the legal heirs of Sobharani Hore as they are all foreign nationals. 3. The Court also held that the defendant no. 1 had been able to set up an adverse title to the plaintiff no. 1 by adverse possession.
Final Decision: The Court set aside the impugned judgment and decree and allowed FA 109 of 2003. The Court also dismissed the suit and upheld the right, title and interest of the appellant/defendant no. 1 in respect of the suit property inter alia based on the deed of relinquishment.
JUDGMENT :
Rajasekhar Mantha, J.
1. The instant appeal arises out of a judgment and decree dated 22nd September 1993, passed by the Learned Assistant District Judge, Uttar Dinajpur at Raiganj in TS no. 5 of 1990.
2. The suit was filed by Kalpana Neogi, predecessor of the respondents, and her siblings, for declaration of title and recovery of khas possession of RS Plot No. 1044 correspondent to C.S. Plot 830 of RS Khatian No. 699 corresponding to C.S. Khatian No. 699 of J.L. No. 150 of Mouza Raiganj, District Uttar Dinajpur, West Bengal (suit property).
3. By the impugned decree such declaration and Khas possession of the property was granted in favour of the original plaintiffs Kalpana Neogi, Bharati Lala, Minati Das, Sunity Hore, Jayanti Hore, Tapati Bhowmick, Subhash Ch. Hore, and Sanjit Kr. Hore.
FACTS OF THE CASE
4. The brief facts of the case are that one Shobharani Hore, through her husband, Ramesh Chandra Hore of Halpara, Thakurgaon District, East Pakistan, now Bangladesh, purchased the suit property by registered deed of conveyance dated 16.06.1960 from one Pora Mohammad.
5. Shobharani Hore was a citizen of East Pakistan and subsequently, after 1971, became a citizen of Bangladesh. She remained as such until her death on 27.5.1972. It was stated by plaintiff no. 1, daughter of Sobharani Hore that her mother purchased the property with the intention of settling in India.
6. At the time of death, Sobharani left behind six daughters, i.e plaintiff no. 1 to 6, and two sons, the plaintiff no. 7 and 8, and her husband/Defendant no. 2, namely Ramesh Chandra Hore, as her legal heirs.
7. The appellant/original Defendant no. 1, namely, Dilip Kumar Sarkar is the brother of Sobharani Hore. Sobharani and her maternal family owned several properties in Tangail in Mymensingh District of Bangladesh which was then East Pakistan. Defendant no. 1 was about 3 years old when the suit property was purchased. Substantial properties of Sobharani’s maternal family, at Tangail in Mymensingh District in Bangladesh, devolved upon the Defendant no. 1 and he admittedly had shares in them. Tangail is presently an independent district carved from the Mymensingh district, in Bangladesh.
8. Shobharani came to India from time to time and finally returned to Bangladesh in 1971 after the country was liberated from West Pakistan. She had not renounced East Pakistani or Bangladeshi citizenship ever. Before leaving India she had entrusted the title deed of the suit property to Defendant no. 1.
9. The Plaintiff no. 1/Kalpana Neogi, daughter of Sobharani Hore, stated that one Naresh Datta, a neighbour to the suit property, was entrusted with the responsibility of looking after the property. She is the only resident and citizen of India from the family of Shobharani Hore, apart from the Defendant no. 1. Kalpana has resided in Jalpaiguri, District in West Bengal since after her marriage. The suit property is at a distance of about 400 kms from Jalpaiguri.
10. There is a boundary wall constructed in the suit property in 1988. There is a dispute between the plaintiff no. 1 and the defendant no. 1 as to who exactly constructed it. The defendant no. 1/appellant stated that he constructed it out of his own funds, while the original plaintiff no. 1 claims that she paid a sum of Rs. 2500/-for the construction of the boundary wall. In January 1989, the Defendant no. 1 constructed a Chapra or Tin shed on the suit land.
11. Admittedly, the Defendant no. 1 is the maternal uncle of the original plaintiff no. 1 i.e. Kalpana Neogi. The Defendant no. 1 filed a written statement in the suit, inter alia, contending that the suit property was purchased out of the funds from the sale of the properties in Tangail Bangladesh, for his benefit, by his brother-in-law, Ramesh Chandra Hore, husband of Shobharani Hore. The latter was a mere benamidar of the suit property.
12. The purchase of the suit property was actually funded by Shobharani’s husband Ramesh Chandra Hore, brother-in-law of the defenda
A foreign national, who is not governed by the Hindu Marriage Act, 1955 or the Hindu Succession Act, 1956, cannot acquire property in India by inheritance from a Hindu who is a foreign national.
The burden of proving a benami transaction rests on the party asserting the plea, and the defendants failed to discharge this burden.
A suit based on a Benami transaction instituted after the commencement of the Benami Transactions (Prohibition) Act, 1988, is barred by law, regardless of when the transaction occurred. Courts must l....
A benami transaction to a married daughter does not qualify for exemption under Section 3(2)(a) of the Old Act, rendering the plaintiffs' suit barred under Section 4 of the Benami Transactions Act.
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