No.(1) framed by this Court as to the maintainability of the suit in
view of Section 4 of the Benami Transactions (Prohibition) Act, 1988,
the undisputed factual position is that the plaintiff claimed 1/3rd share
in the suit property on the ground that he has contributed an amount
2692016:
of Rs.4,000/ in the total consideration of Rs.12,000/ for which the
property was purchased in the name of the defendant. The registered
saledeed dated 1931981 is in the name of the appellantdefendant.
The Benami Transactions (Prohibition) Act was brought into force
with effect from 1951988. The preamble to the Act shows that it is
to prohibit benami transactions and the right to recover property held
benami and for matters connected therewith or incidental thereto.
11. Section 4 of the said Act being relevant, is reproduced
below :
“4. Prohibition of the right to recover property held
benami.
(1) No suit, 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.
(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.
(3) Nothing in this section shall apply,
(a) where the person in whose name the property is held is a
coparcener in a Hindu undivided family and the property is
held for the benefit of the coparceners in the family; or
(b) where the person in whose name the property is held is a
trustee or other person standing in a fiduciary capacity, and
the property is held for the benefit of another person for
whom he is a trustee or towards whom he stands in such
capacity.”
In terms of subsection (1) of Section 4 of the said Act, no suit, 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.
12. The suit in question was filed on 1141990, i.e. after coming
into force of the said Act on 19-5-1988. It is not the case of the
plaintiff that the property was covered by any of the exceptions under
clause (a) or (b) of subsection (3) of Section 4. The suit was,
therefore, clearly covered by the prohibition contained in
subsection (1) of Section 4, reproduced above. The suit was,
therefore, not maintainable. No doubt, this question was not raised
before the Trial Court, but it was raised before the lower Appellate
Court, which has not considered it. The question of maintainability of
the suit on the basis of subsection (1) of Section 4 of the said Act is
purely a question of law, which can be decided by this Court in the
second appeal. It is, therefore, held that the suit, as framed, was not
maintainable in view of subsection (1) of Section 4 of the said Act.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.409 of 2003
Shri Ashok s/o Wasudeorao Marchettiwar,
V
Arun s/o Wasudeorao Marchettiwar,
Coram : R.K. Deshpande, J.
Dated : 15th & 26thSeptember, 2016
Citation: 2016(6) ALLMR541,2017(1) MHLJ 414
1. 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 1721994 holding that the respondentplaintiff
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 appellantdefendant. 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 1772003, 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
1592016:
the plaintiff claims that the suit plot No.9, situated at Subhash Nagar,
Nagpur, was purchased jointly in the name of the defendant on
1931981 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 26121983 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 1/3rd portion of the plot along with
construction standing thereon. A plea was raised that the document
dated 26121983 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 1/3rd 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 saledeed dated 951988, said to
have been executed by the defendant in favour of another brother
Vinayak in respect of 1/3rd portion of the suit property, and the
contents of the document of partition dated 26121983 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 saledeed, 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 1/3rd share in the suit house.
5. None of the Courts below have addressed the issue of benami
transaction, nor it was raised in the pleadings of the parties. The
Courts below have addressed the question of admissibility of
Exhibit 26, the memorandum of partition dated 26121983, to hold
that it is not the deed of partition, which would attract the provisions
of Sections 17 and 49 of the Registration Act, 1908 so as to make it
inadmissible in evidence on account of its nonregistration.
6. The second appeal was admitted on 1792003 on the
substantial questions of law at serial Nos.1 and 2 in the memorandum
of appeal, which are reproduced below :
“1) It is not that the plaint filed by the respondent is not
maintainable in view of Section 4 of the Benami Transactions
(Prohibition) act, 1988, particularly when the case of the
respondent is not covered by any exception to the said section
and particularly when there are no pleadings and/or evidence
which can cover the case of the respondent under any
exceptions to the said section and its effects thereto?
2) Is it not that the suit is not maintainable in absence of
registration of a document i.e. Deed of partition at ext. 26 and
that the same cannot be looked into for any purpose and is
inadmissible under section 49 of the said act and as such no
relief can be granted on the basis of the document at Ext. 26?”
7. Shri Shrivastava, the learned counsel appearing for the
appellant, has invited my attention to the pleadings in the plaint and
also to the notice dated 831990 issued by the plaintiff to the
defendant to point out the inconsistent stand. He submits that in the
notice, it was not the claim made that the suit plot was jointly
purchased by the plaintiff and his two brothers, viz. the defendant
Ashok, and Vinayak, in the name of the defendant, and that all the
three brothers have equally contributed for purchase of the suit plot.
He further submits that reading of the notice shows that the claim was
that it was a joint family property and, therefore, 1/3rd share was
claimed by the plaintiff. He submits that in the plaint, the claim is
based on title over 1/3rd portion of the plot on the ground that the
plaintiff has contributed Rs.4,000/ each of the total consideration of
Rs.12,000/ paid for the purchase of the suit plot. The plaint alleges
that the construction was made with the contribution of Rs.25,000/
by the mother of the plaintiff and the defendant, and the claim for
1/3rd share is also based upon the memorandum of partition.
8. The lower Appellate Court records the finding that the title of
the suit for partition would be merely a misnomer and the suit is for
title over 1/3rd share of the plaintiff in the suit plot. The Court,
therefore, holds that the suit was maintainable for a decree for
possession of 1/3rd share of the plaintiff based on his title. The
inconsistency between the stand in the notice and the pleadings in the
plaint has been taken into consideration and adjudicated. This Court
has not framed any substantial question of law on this aspect of the
matter, and I do not find any reason to reopen the findings recorded
by the Courts below on this aspect of the matter. The suit has,
therefore, to be treated as per possession based upon the claim of the
plaintiff for title in respect of 1/3rd share.
9. The undisputed factual position is that the property was
owned by one Society, from which the registered saledeed
dated 1931981 is in the name of the defendant. It was purchased for
a total consideration of Rs.12,000/. At the time of purchase of the
property, all the three brothers were residing jointly. The construction
of nine rooms over the suit plot was carried out between the year
1981 and 1984. In the year 1983, three rooms were let out to the
tenant. It is during this period that the memorandum of partition
dated 26121983 at Exhibit 26 was executed. On 951988, the
defendant executed the registered saledeed at Exhibit 53 in respect of
1/3rd portion of the suit plot along with construction in favour of
another brother Vinayak for a total consideration of Rs.20,000/. In
the revenue record, the property always stood in the name of the
defendant. The plaintiff started residing separately since the year
1984, and it was the defendant, who used to receive the rent from the
defendant.
10. Now coming to the substantial question of law at serial
No.(1) framed by this Court as to the maintainability of the suit in
view of Section 4 of the Benami Transactions (Prohibition) Act, 1988,
the undisputed factual position is that the plaintiff claimed 1/3rd share
in the suit property on the ground that he has contributed an amount
2692016:
of Rs.4,000/ in the total consideration of Rs.12,000/ for which the
property was purchased in the name of the defendant. The registered
saledeed dated 1931981 is in the name of the appellantdefendant.
The Benami Transactions (Prohibition) Act was brought into force
with effect from 1951988. The preamble to the Act shows that it is
to prohibit benami transactions and the right to recover property held
benami and for matters connected therewith or incidental thereto.
11. Section 4 of the said Act being relevant, is reproduced
below :
“4. Prohibition of the right to recover property held
benami.
(1) No suit, 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.
(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.
(3) Nothing in this section shall apply,
(a) where the person in whose name the property is held is a
coparcener in a Hindu undivided family and the property is
held for the benefit of the coparceners in the family; or
(b) where the person in whose name the property is held is a
trustee or other person standing in a fiduciary capacity, and
the property is held for the benefit of another person for
whom he is a trustee or towards whom he stands in such
capacity.”
In terms of subsection (1) of Section 4 of the said Act, no suit, 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.
12. The suit in question was filed on 1141990, i.e. after coming
into force of the said Act on 19-5-1988. It is not the case of the
plaintiff that the property was covered by any of the exceptions under
clause (a) or (b) of subsection (3) of Section 4. The suit was,
therefore, clearly covered by the prohibition contained in
subsection (1) of Section 4, reproduced above. The suit was,
therefore, not maintainable. No doubt, this question was not raised
before the Trial Court, but it was raised before the lower Appellate
Court, which has not considered it. The question of maintainability of
the suit on the basis of subsection (1) of Section 4 of the said Act is
purely a question of law, which can be decided by this Court in the
second appeal. It is, therefore, held that the suit, as framed, was not
maintainable in view of subsection (1) of Section 4 of the said Act.
The substantial question of law at serial No.(1), framed by this Court,
is, therefore, answered accordingly.
13. The lower Appellate Court has recorded the finding that the
title of the suit for partition would be merely a misnomer and the suit
is for title and possession over 1/3rd share of the plaintiff in the suit
plot. Once the theory of title to the 1/3rd portion of the property on
the basis of joint purchase cannot be entertained in view of
prohibition contained in subsection (1) of Section 4 of the said Act,
the question of accepting the deed of partition at Exhibit 26, would
not arise. Be that as it may, if the partition was effected on 2612
1983, then there was no question of sale of 1/3rd portion of property
by the defendant on 951988 in favour of his another brother Vinayak
for total consideration of Rs.20,000/. Hence, the substantial question
of law at serial No.(2), framed by this Court, does not at all survive.
14. On the aspect of contribution of Rs.25,000/, said to have
been made by the mother of the plaintiff and the defendant for
construction of nine rooms, it is apparent that the mother and the
father of the plaintiff have deposed against the claim of the plaintiff.
In fact, the mother and father of the plaintiff and the defendant have
deposed that the defendant purchased the suit plot with his own funds
and both of them have not provided any financial aid to the
defendant. Hence, the said fact has also not been established. The
Courts below have, therefore, committed an error in passing a decree
for possession in favour of the plaintiff. Thus, the judgment and
decree passed by the Trial Court and confirmed by the lower Appellate
Court will have to be set aside and the suit will have to be dismissed.
15. In the result, the second appeal is allowed. The judgment
and decree passed by the Trial Court on 1721994 in Regular Civil
Suit No.836 of 1990 as well as the judgment and order passed by the
lower Appellate Court on 1772003 in Regular Civil Appeal No.212 of
1994, are hereby quashed and set aside. Regular Civil Suit No.836 of
1990 is dismissed. No order as to costs.
If the appellantdefendant has deposited any amount
pursuant to the orders passed by this Court, the same shall be
permitted to be withdrawn by him along with interest, if any accrued
thereon.
JUDGE.
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