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BOMBAY HIGH COURT
R.K. Deshpande, J.
Ashok —Appellant
versus
Arun and Ors. —Respondents
Second Appeal No.409 of 2003
Decided on 26.9.2016
Counsel for the Parties:
For the Appellant:R.R. Shrivastava, Advocate
For the Respondent Nos.1 to 3:S.S. Ghate, Advocate
IMPORTANT POINT
Partition suit cannot be allowed where joint purchase of property could not be proved by plaintiff.
Headnote:Benami Transactions (Prohibition) Act, 1988—Section 4—Partition suit—Lower Appellate Court has recorded finding that title of suit for partition would be merely a misnomer and suit is for title and possession over ?rd share of plaintiff in suit plot—Once theory of title to ?rd portion of property on the basis of joint purchase cannot be entertained in view of prohibition contained in sub-section (1) of Section 4, question of accepting deed of partition would not arise—If partition was effected on 26-12-1983, then there was no question of sale of ?rd portion of property by defendant on 9-5-1988 in favour of his another brother for total consideration of Rs. 20,000/-—Mother and father of plaintiff have deposed against claim of plaintiff—Mother and father of plaintiff and defendant have deposed that defendant purchased suit plot with his own funds and both of them have not provided any financial aid to defendant—Said fact has also not been established—Courts below committed an error in passing decree for possession in favour of plaintiff—Judgment and decree passed by Trial Court and confirmed by lower Appellate Court set aside and suit dismissed. (Paras 13 to 15)
Result: Appeal allowed.
R.K. Deshpande, J.—In Regular Civil Suit No. 836 of 1990, styled as one for partition, possession and mesne profits, the Trial Court passed a decree for possession on 17-2-1994 holding that the respondent-plaintiff shall be entitled to possession of the suit property consisting of southern side of three rooms totally admeasuring 32' x 10' out of Municipal House No. 1446 on Plot No. 9, situated at Subhash Nagar, Nagpur, from the appellant-defendant. The defendant was directed to deliver the possession of the suit property to the plaintiff and the enquiry was also ordered into the mesne profits. In Regular Civil Appeal No. 212 of 1994, decided on 17-7-2003, the decree passed by the Trial Court has been maintained by dismissing the appeal. Hence, the original defendant is before this Court.
2. The dispute in the suit is between the two real brothers, and the plaintiff claims that the suit plot No. 9, situated at Subhash Nagar, Nagpur, was purchased jointly in the name of the defendant on 19-3-1981 for a total consideration of Rs. 12,000/-, and the three brothers have contributed Rs. 4,000/- each. The plaintiff also claims that in the year 1983, the defendant himself proposed to effect the partition of the suit house in three equal parts, to which the plaintiff and his another brother Vinayak agreed, and accordingly the house was divided into three portions. In order to avoid any future dispute, the partition was reduced in writing by way of memorandum of partition dated 26-12-1983 and the southern portion of the house consisting of three rooms, admeasuring 32' x 10', came to be allotted to the share of the plaintiff. The defendant denied the claim of the plaintiff for ownership of ?rd portion of the plot along with construction standing thereon. A plea was raised that the document dated 26-12-1983 was a nominal one executed for the purpose of taxation and it was never intended to be acted upon.
3. The Trial Court recorded the finding that the plaintiff has established his title over ?rd share in the suit property. The Trial Court relied upon the oral evidence led by the plaintiff, and the document at Exhibit 53, which was a sale-deed dated 9-5-1988, said to have been executed by the defendant in favour of another brother Vinayak in respect of ?rd portion of the suit property, and the contents of the document of partition dated 26-12-1983 at Exhibit 26. The Trial Court holds that the contents of both these documents at Exhibits 53 and 26 clearly support the case of the plaintiff that each of the three brothers must have contributed Rs. 4,000/- each for the purchase of the suit property. On the aspect of construction of nine rooms, the Trial Court rejected the oral evidence of the mother and father of the plaintiff and defendant, who stated that they have not contributed for construction over the suit plot. The Court holds that the preponderance of probabilities is in favour of the plaintiff to hold that the suit plot was purchased and the construction was made jointly by all the three brothers.
4. The lower Appellate Court concurs with the findings of the Trial Court and holds that there was no propriety in mentioning in Exhibit 53, the sale-deed, and the memorandum of partition at Exhibit 26, that the suit plot was purchased from the joint family property. The lower Appellate Court further holds that the defendant was doing a tailoring business at the time of purchase of the plot, and looking to the income of the defendant, it does not appear that he could have spent an amount of Rs. 82,000/- within a span of one year from the date of purchasing the plot for making construction thereon. The lower Appellate Court also holds that mere title of the suit for partition would be a misnomer, and on reading the pleadings as a whole, it can be said that the suit is not for partition, but for possession of the plaintiff’s ?rd share in the suit house.
5. None of the Courts below have addressed the issue of benami transaction, nor
