Allowed

On the Death of Padmadhar Kalita , His Legal Heirs- Sri Purnima Kalita and Ors. v. Bilin Kalita

Gauhati HC7 May 2019RSA/91/2007

Case brief

AI extract

What is this about?

Appeal against dismissal of a title suit for right, title and interest over land and house. The single judge acquitted the benami plea. First appellate court allowed appeal finding land joint family property despite Section 4(2) bar on defence. High Court held Section 4(2) bars benami defence if suit filed after enactment, setting aside first appeal and restoring trial decree.

What did the court decide?

Appeal allowed; judgment of first appellate court set aside; decree of trial court restored in favour of appellant.

On the Death of Padmadhar Kalita , His Legal Heirs- Sri… — Property and Title | Gauhati HC (2019)

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GAHC010174002007

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THE GAUHATI HIGH COURT

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(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : RSA 91/2007

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1:ON THE DEATH OF PADMADHAR KALITA , HIS LEGAL HEIRS- SRI PURNIMA KALITA and ORS

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S/O LT. DULESWAR KALITA, R/O RAJAMOIDAM, NEW COLONY, PS. JORHAT, DIST. JORHAT, ASSAM.

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2: B SRI KUMAR NAYAN BARUAH CSRI JOMI NAYAN BARUAH DSRI JIMI NAYAN BARUAH ESMT. JITALI BARUAH BHUYA

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VERSUS

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1:BILIN KALITA

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S/O LT. DULESWAR KALITA, R/O BARUABARI GAON, CHARIGAON MOUZA, PS. JORHAT, DIST. JORHAT, ASSAM.

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Advocate for the Petitioner : MR.K R SURANA

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Advocate for the Respondent : MR.D C MAHANTA

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BEFORE

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HONOURABLE MR JUSTICE PRASANTA KUMAR DEKA

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JUDGMENT AND ORDER(ORAL)

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Date : 07-05-2019

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Heard Mr. P.Khataniar, learned counsel for the appellant and Mr. P. S. Deka, learned counsel for the respondent.

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The appellant during the pendency of this appeal died and on his death his legal heirs

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were substituted vide order dated 13.2.2017. However the term plaintiff appellant shall

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connote the sole appellant, Padmadhar Kalita . Title suit No. 95/2000 was filed by the present appellant for declaration and confirmation of right, title and interest over the land and suit house for khas possession evicting the defendant respondent from the suit house standing on the land. The claim over the suit land and house is on the basis of a registered sale deed No. 1272 dated 29.3.1965. On the suit land construction was carried out and the plaintiff appellant used to run a restaurant thereon. Since 1.1.1991 the defendant respondent was allowed to manage the said restaurant with his own capital. In the year 1994 the defendant respondent took an amount of Rs. 20,000/- from a party as security money to let out the house but it was resisted by the plaintiff appellant. Further in the year, 1998 the defendant respondent changed the name of the restaurant and even on persistent demand the defendant appellant changed the name of the restaurant thereby expressing the intention that he would not give up the possession of the suit room over the suit land. Accordingly pleading bonafide requirement of the house and the land for his sons, the plaintiff appellant was compelled to file the suit for the reliefs hereinabove.

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The defendant respondent filed his written statement taking the plea that purchase of the said land in the name of the plaintiff appellant was a benami purchase and real purchaser was his father Debeswar Kalita. His father constructed the house in the year 1960 over the suit land and Municipal holding No. 76 stands in the name of his father and both he alongwith his father carried on the business of repairing of motor vehicles. Denying the fact of construction of the house on the suit land by the plaintiff appellant, it is the defence that in the year 1965 the plaintiff appellant was a student and the land was purchased by their father. Their father died in the year 1983 and handed over the possession of the said part of the house to the defendant respondent in the year 1990 and since then he has been running

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hotel business. The plaintiff appellant separated from the parents in the year 1978 and had no cordial relation with his mother, brothers and sisters. Accordingly, reiterating the stand that the entire land with the house thereon belonged jointly to all the heirs of late Debeswar Kalita and the plaintiff cannot seek any separate right, title, interest and possession in respect of the said joint property he sought for dismissal of the suit.

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The trial court framed the following issues:

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Whether the suit is bad for non-joinder of necessary parties ?

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Whether defendant No.2 and 6 died long before the institution of the suit?

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Whether the suit is properly valued and proper court fee has been paid?

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Whether the plaintiff has right, title and interest over the house and the suit land?

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Whether the plaintiff is entitled to get khas possession by evicting the defendant therefrom?

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Whether description of the subject matter of the suit are not sufficient to identify the same?

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Whether the plaintiff is entitled to get compensation as claimed in the plaint ?

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What any other relief the parties are entitled ?

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The trial court took up issue No. 4 and came to the finding that the defence plea of

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the defendant respondent that the father of the plaintiff appellant purchased the suit land with his own money in the name of the plaintiff appellant and said purchase of suit land was benami transaction as consideration money was paid by the father of the plaintiff and defendant. In view of the bar under Section 4 Sub-Section (2) of the Benami Transaction (Prohibition) Act, 1988(in short the Act) it was held by the trial court that the defendant respondent cannot take such defence. It further held that the plaintiff appellant is the owner of the suit land as the sale deed was executed in respect of the suit land in favour of the plaintiff appellant himself. Regarding the house over the suit land though the plaintiff appellant has stated that he constructed the suit house, the defendant respondent in his

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evidence stated that father of the plaintiff / defendant purchased the suit land and further deposed that the house over the suit land was constructed in the year, 1959. The trial court disbelieved the said version of the defendant respondent on the ground that the suit land was purchased in the year 1965 and as such construction over the house in the year, 1959 was not at all believable. Considering the Municipal taxpaying receipts in the name of the father of the plaintiff appellant, the trial court came to the finding that the said documents produced by the defendant respondent supported the possession of the father of the plaintiff and as the defendant respondent failed to prove that the house was constructed by his father so the trial court decided the issue No.4 in favour of the plaintiff appellant both in respect of the right, title and interest of the land and house.

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Regarding maintainability of the suit the trial court came to the finding that the suit is not bad for non-joinder of necessary party and held that the other legal heirs of Debeswar Kalita(father) of the plaintiff appellant are not at all necessary party for the suit. The issue No. 5 was also decided in favour of the plaintiff appellant in view of the decision of issue No. 4. Accordingly trial court granted the relief of recovery of the possession of the suit land. In the result the suit was decreed.

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Title Appeal No. 53/2006 was filed by the defendant respondent against the judgment and decree of the trial court before the learned court of District Judge, Jorhat. The said appeal was allowed vide judgment and decree dated 9.4.2007. The learned first appellate court held that the defendant respondent is precluded from resorting to the defence relating to the right over the suit land arising out of the alleged benami purchase by their father in the name of the plaintiff being his eldest son. However it held that at the time of purchase of the land in the year 1965 the prohibition of the Benami Act was not in existence and as such

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there was no bar in Benami purchase of property by a person in the name of anybody besides his wife and unmarried daughter. It was further held that as the land was purchased in the year 1965 the said transaction was beyond the purview of the Act which came into force in the year 1988. Although the defence taken by the defendant in the suit regarding right, title and interest claiming the land as benami purchase land by his father but it was to be seen whether the land was actually purchased by the their father Debeswar Kalita in the name of the plaintiff out of the money of the father. Holding the same in the affirmative, the first appellate court allowed the appeal only on the ground that the suit is bad for nonjoinder of necessary parties inasmuch as the first appellate court held that the legal heirs of late Debeswar Kalita were the necessary parties to the suit and dismissed the suit.

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Being aggrieved by the said judgment and decree of the first appellate court the plaintiff appellant filed second appeal which was admitted on the following substantial questions of law on 24.8.2007:

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“1. Whether the learned First Appellate Court below erred in law in relying on mutation in respect of Municipal Holding, which is contrary to the settled law that mutation alone cannot confer title and cannot have any evidentiary value on the question of title?

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Whether the learned first appellate court below erred in law in shifting the burden of proof upon the plaintiff despite the settled position of law that it is the burden of the party pleading to prove that the land is the joint family property? “

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Another substantial question of law was formulated later on 20.02.2018 as follows:

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“3. Whether the judgment of the first appellate court is sustainable in view of Section

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4(2) of the Prohibition of Benami Property Transactions Act, 1988 ?”

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Mr. Khataniar submits that the first appellate court exceeded its jurisdiction inasmuch as on one hand the court below held that the defence taken by the defendant respondent

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of benami transaction is itself a bar and on the other hand, the first appellate court going one step ahead knowing fully well that the transaction is benami erred by holding that in the year, 1965 as the Act was not in force the court below has the authority to examine the source of money on the basis of which, as claimed by the plaintiff, the land was purchased by him. In support of his submission that once the defence is barred u/s 4(2) of the Act the court cannot further consider the necessity of the purchase . Making a dig on the finding of the first appellate court in respect of the finding that the suit is bad for non-joinder of legal heirs of Debeswar Kalita, Mr Khataniar submits that under no circumstances the plea of non-joinder will come into effect inasmuch as the plaintiff appellant is claiming his title over the suit land on the basis of the sale deed against the defendant respondent who is interested to deny the title of the plaintiff. Accordingly Mr. Khatiniar sought for interference of the findings of the court below.

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Mr. Deka on the other hand tried to project the case as if the suit land is a joint property of the legal heirs of Debeswar Kalita inasmuch the definition of the benami transaction as stipulated u/s 2 Sub-Section 9 and more specifically the defence of the defendant respondent falls within the exception 3 of Section 2 Sub-Section 9 A (amended). However, he admits that the pleading made in the written statement in respect of the benami transaction is a defence taken by the defendant respondent which is hit u/s 4 Sub-Section 2 of the Act. Mr. Deka tried to project the suit property as a joint family property on the basis of the Municipal holding which is still standing in the name of late father of the parties to the suit and the finding given by the first appellate court finds support from the learned counsel Mr. Deka on the said projection that the suit land is a joint property.

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I have given due consideration to the submissions of the learned counsel. Admittedly

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the defence of the defendant respondent is hit u/s 4 sub-Section 2 of the Act. Both the courts below rightly came to the finding to that effect. But once both the court below came to the finding concurring the bar u/s 4 sub-Section 2 of the defence , in my opinion the first appellate court ought not further scrutinize and make an examination in order to decide the source of money. This is because of the fact that it is not the plea of the defendant appellant that though the suit property was purchased in the name of the plaintiff appellant but in fact after the death of the father the parties enjoyed the same as a joint property nor there is any counter claim to that effect. On the face of the defence taken, I have no other alternative but to accept the submission of Mr. Khataniar that the judgment passed by the first appellate court is not tenable under the law in view of the defence taken by the defendant respondent. Once the defence is found to be untenable under the law, the court below is bound to declare the right, title and interest in favour of the plaintiff appellant.

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The question of non joinder of necessary parties to the suit does not come into picture inasmuch as the suit is on the basis of a sale deed wherein the allegation and cause of action has accrued against the defendant respondent. The plaintiff appellant sought for his declaration of right, title and interest and consequential relief for recovery of possession of the suit land which he pleaded to possess illegally by the defendant respondent. There is no allegation against any of the family members or legal heirs of Debeswa Kalita showing accrual of the cause of action against them in the plaint. The relief sought for by the plaintiff appellant can very well be passed in absence of other legal heirs of Debeswar Kalita if the cause of action as pleaded in the plaint are taken into consideration. Though the house is standing over the suit land, there is no definite proof that the plaintiff appellant constructed the same coupled with Municipal tax-paying receipts standing in the name of Debeswar Kalita

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but as the same is attached to the suit land, it is well within the definition of immovable property under Transfer of Property Act . Accordingly, once the declaration of right, title and interest is declared in favour of the plaintiff appellant, in my opinion there is no requirement of further giving a declaration with regard to suit house in favour of the plaintiff appellant . The Municipal tax-paying receipts are issued by the municipal authorities only on receipt of the tax based on the assessed value of the property. It has nothing to do with the title of any property. True, on record the assessment is in the name of Debeswar Kalita but that does not and cannot overcome the title derived by the plaintiff appellant on the strength of the purchase by way of a valid sale deed.

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The defence of joint property is raised by the defendant respondent on the face of the plaintiff appellant’s stand of derivation of title of the suit land on the basis of the sale. The burden will quite obviously, be on the defendant respondent to show and prove the fact of jointness of the property. Normally a property purchased by the father is always annexed with the presumption that on his death the property devolved on his legal heirs on the basis of inheritance and the same stands as a joint property of all the legal heirs of the father until the presumption is disproved by cogent evidence. But in the present factual matrix it is a specific case of the plaintiff appellant that he purchased the land and in order to rebut such claim the onus lies on the defendant respondent. But the defence raised by the defendant respondent is specific of benami purchase and the father of defendant respondent delivered the part of the house to him under the possession. The said fact must be established, but without taking the plea of benami purchase as the defence . Herein it would be proper to take note of the Section 4 of the Act of 1988:-

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“ 4. Prohibition of the right to recover property held benami -(1) No suit,

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claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.

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2 . No defence based on any right in respect of any property held benami whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.”

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A Division Bench of the Hon’ble Supreme Court in Mithilesh Kumari Vs. Prem Behari Khare reported in AIR 1989 SC 1247 held Section 4 of the Act of 1988 as retroactive i.e. it would cover all cases pending wherein the real owner in a benami transaction sought to reclaim back the property from the person holding the property ostensibly (benamdar). Thereafter in R. Rajagopal Reddy (dead) by LRS.. Vs. Padmini Chandrasekharan, reported in AIR 1996 SC 238, a three Judge Bench was faced with the issue wherein Section 4(1) of the Act, 1988 can be applied to suit, claimed to enforce any right in property held benami against person in whose name such property is held or any other person, if such proceeding is initiated by or on behalf of a person claiming to be real owner thereof, prior to the coming into force of Section 4(1) of the Act. It was held that Section 4(1) of the Act, 1988 cannot be applied to suit, claim or action to enforce any right in property held benami against person in whose name such property is held, if such proceeding is initiated by or on behalf of a person claiming to be real owner prior to coming to effect of Section 4(1) of the Act. Section 4(2) provides that if a suit is filed by a plaintiff claiming ownership of property under the document(sale deed) in his favour and holds the property in his name and once Section 4(2) applies no defence will be permitted or allowed in any such suit, claim by or on behalf of a person claiming to be the real owner. The disallowing of such a defence which was earlier available a new restriction or liability is imposed by Section 4(2) on a pre-existing right and such a provision cannot be said to be retrospective or retroactive by necessary implication

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and will be implied by retrospective effect so as to cover all the pending litigations in connection with enforcement of such rights or real owners who are parties to benami transaction entered prior to the coming into operation of the Act and specifically Section 4 thereof. This results in overruling of the decision of the Division Bench reported in AIR 1989 (Supra). So applying the aforesaid ratio in the present suit which was filed admittedly during the existence of the Act of 1988 debars of the defence of benami transaction by Section 4(2) of the Act. So leaving aside the defence of benami transaction it will be the onus to accept and prove the plea of joint property by the defendant respondent but not by the plaintiff appellant.

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Considering the same the substantial questions of law urged by Mr. Khataniar are decided in favour of the plaintiff appellant allowing this appeal thereby setting aside the judgment and decree passed by the first appellate court and upholding the judgment and decree of the trial court. Prepare a decree.

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No cost. Send back the LCR.

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JUDGE

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Comparing Assistant

On the Death of Padmadhar Kalita , His Legal Heirs- Sri Purnima Kalita and Ors. v. Bilin Kalita

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On the Death of Padmadhar Kalita , His Legal Heirs- Sri Purnima Kalita and Ors. v. Bilin Kalita

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