1. This revisional application under Article 227 of the Constitution of India is directed against an order being No. 85 dated 25th September, 2007 passed by the learned Judge, 2nd Bench, City Civil Court at Calcutta in Title Suit No. 409 of 1996, whereby the application of the defendant No. 3.petitioner under Order 7 Rule 11 read with Order 7 Rule 10A of the Code of Civil Procedure was rejected by the learned Trial Judge.
2. The propriety of such an order is under challenge in this revisional application at the instance of the defendant No. 3.petitioner herein.
3. The defendant No. 3.petitioner is a pendente lite transferee in respect of one of the suit properties from some of the co-owners.
4. The suit in which the impugned order was passed, is a suit for partition of various properties situated in Delhi as well as in Kolkata including certain joint family businesses. The defendant No. 3 who was a pendente lite transferee, was impleaded in the suit as defendant under Order 1 Rule 10 of the Code of Civil Procedure.
5. The plaint was also amended subsequently for challenging the validity of the sale deed through which the defendant No. 3 is claiming title by way of purchase of the property as mentioned in Schedule “1” of the plaint from some of the co-owners, viz., defendant Nos. 1 and 2. Consequential reliefs by way of injunction for restraining the defendant No. 3 from selling, transferring and/or disposing of the property as mentioned in Schedule “1” of the plaint and also by way of mandatory injunction for directing the defendant No. 3 to reconvey the property as mentioned in Schedule “1” of the plaint to the plaintiff at the price mentioned in the deed of sale dated 4th July, 2005, were also introduced in the plaint by way of amendment.
6. Though the valuation of the suit property in respect of which partition was sought for by the plaintiff/opposite party has been assessed at Rs. 9,00,000/- and fixed Court-fees for the reliefs claimed in the said suit has been paid by the plaintiff, but while amending the plaint for challenging the transfer of the property as mentioned in Schedule “1” of the plaint by the defendant Nos. 1 and 2 in favour of the defendant No. 3, the plaintiff mentioned in paragraph 13(e) of the plaint that the said transaction was made at a total consideration of Rs. 14,67,000/-.
7. In the aforesaid context, the defendant No. 3 alleged that since the valuation of the suit property exceeds Rs. 10,00,000/- the learned Trial Judge lacks pecuniary jurisdiction to try the instant suit. Accordingly, the defendant No. 3 prayed for return of the plaint to the plaintiff for presentation of the same to the appropriate Court having both territorial and pecuniary jurisdiction to try the suit.
8. The defendant/petitioner also prayed for rejection of the plaint so far as the relief relates to decree for partition in respect of the properties described in Schedule “1” of the plaint is concerned, in view of the bar as prescribed under section 4 of the Benami Transaction (Prohibition) Act, 1988, as the said property was admittedly purchased by the father of the plaintiff, viz., Gurbax Singh in the name of his wife Viranwali out of his personal income and fund. The said property was purchased by Gurbax Singh in the name of his wife Viranwali long before the Benami Transaction (Prohibition) Act, 1988, came into operation. Gurbax Singh died subsequently on 8th July, 1982. Viranwali died thereafter on 22nd October, 1995 leaving behind her a Will dated 20th October, 1986 bequeathing her interest in the property as mentioned in Schedule “1” of the plaint in favour of her sons, viz., Jaipal Singh and Tejender Singh. The said Will was subsequently probated by the Court of the Additional District Judge, Delhi in PC No. 129 of 2007.
9. The defendant Nos. 1 and 2, thus, claimed absolute title in the property as mentioned in Schedule “1” of the plaint by virtue of the Will dated 20th October, 1986 left by their mother Viranwali who was alleged to be the absolute owner of the said property.
10. Since the property was purchased by Gurbax Singh in the name of his wife Viranwali with the fund of Gurbax Singh before the Benami Transaction (Prohibition) Act, 1988 came into operation, the plaintiff claims title through Gurbax Singh as his heir, as according to the plaintiff, Gurbax Singh was the real owner and on his death the plaintiff along with his two brothers and mother inherited the said property in equal share and after the death of his mother, the plaintiff and his two brothers inherited the mother's interest in Schedules “1”, “2” and “3” of the plaint. Thus, the plaintiff claimed 1/3rd interest in properties as mentioned in Schedules “1”, “2” and “3” and 1/2 share in Schedule “4” of the plaint.
11. In the aforesaid context, the defendant No. 3 prayed for rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure by alleging that the relief claimed in the suit relating to the properties mentioned in Schedule “1” of the plaint is barred under the provision of section 4 of the Benami Transaction (Prohibition) Act, 1988 as the said property was admittedly purchased by Gurbax Singh in the benam of his wife Viranwali.
12. Both the aforesaid prayers of the defendant No. 3 either for rejection of the plaint or for return of the plaint, were rejected by the learned Trial Judge by the impugned order.
13. Hence, the instant revisional application was filed by the defendant No. 3.petitioner.
14. Heard Mr. Arindam Mukherjee, learned Advocate, appearing for the petitioner and Mr. Probal Mukherjee, learned Advocate, appearing for the plaintiff/opposite party. Considered the materials on record including the order impugned with all anxieties, as two learned Single Judges of this Hon'ble Court expressed conflicting views with regard to the maintainability of partition suit of similar nature in respect of benami transaction by the husband (real owner) in favour of the wife (benamdar).
15. In the case of Ashim Kr. Roy v. Anima Mallick, reported in 1999 (2) CLJ 189, a learned Single Judge of this Court held that no relief can be granted in favour of the plaintiff as, the relief claimed in the suit, is barred under sections 3 and 4 of the Benami Transaction (Prohibition) Act, 1988, as admittedly the father of the plaintiff (the real owner) purchased the property in the benam of his wife. His Lordship further held that even in such a suit, if the plaintiff is permitted to give evidence to rebut the said presumption and consequently she succeeds, the property will be held to be a benami property which is prohibited by law and as such, in view of section 4(1) of the Act, no declaration that the father of the opposite party was the real owner can be granted.
16. His Lordship was further pleased to hold that since in the plaint no averment claiming exception mentioned in section 4(3) of the aforesaid Act has been made, question of giving any opportunity to the plaintiff to lead evidence for the purpose of proving exception under the aforesaid section does not arise. Holding as such, his Lordship rejected the plaint under Order 7 Rule 11 of the Code of Civil Procedure in view of the fact that the suit is barred under section 4(1) of the said Act.
17. Another learned Single Judge of this Court in the case of Sibani Bhar v. Nabin Chandra Bhar, reported in 2002 (2) CLJ 224, held by taking into account section 3 qua section 4 of the said Act that the purchase of property being made under the contour of clause (a) of sub-section (2) of section 3 of the said Act, are not at all suffering any embargo so far as maintainability of the suit in terms of section 4 of the Benami Transaction (Prohibition) Act as once a statute permitted someone to purchase a property in the name of the wife and/or the unmarried daughter, the same statute cannot put an embargo for giving effect to such purchase by way of a suit or otherwise when such situation will arise.
18. Holding as such, his Lordship held that the plaint of such a suit cannot be rejected under Order 7 Rule 11 of the Code of Civil Procedure.
19. Though it is true that for maintaining judicial discipline, a learned Single Judge, in case of difference of opinion with the views expressed by another learned Single Judge, is required to refer the said dispute to the Hon'ble Chief Justice for reference of such dispute for resolution by a larger Bench, but here in this case no such reference was made by the learned Judge in the subsequent decision presumably on the ground that the Hon'ble Apex Court had decided the said issue earlier in the case of Nand Kishore Mehra v. Sushila Mehra, reported in AIR 1995 SC 2145, on which strong reliance was given by the learned Judge while deciding the said issue.
20. On perusal of the decision of the Hon'ble Apex Court in the case of Nand Kishore Mehra (supra), this Court finds that the Hon'ble Apex Court held in clear terms that neither the filing of a suit nor taking of defence in respect of either the present or past benami transaction involving the purchase of the property by a person in the name of his wife or unmarried daughter is prohibited under sub-sections (1) and (2) of section 4 of the said Act.
21. It was further held therein that since the plaintiff is the husband who had the right to enter into a benami transaction in the matter of purchase of property in the name of his wife or unmarried daughter, he is entitled to enforce his rights in the properties concerned if he can succeed in showing that he had purchased those properties in the benam of his wife, but in view of the statutory presumption incorporated in sub-section (2) of section 3 of the said Act he can get relief sought in the suit only if he can prove that the properties concerned had not been purchased for the benefit of the wife, even if he succeeds in showing that the consideration for the purchase of the properties had been paid by him.
22. While deciding the said case, the Hon'ble Apex Court also took into consideration the other decision in the case of R. Rajagopal Reddy v. Padmini Chandrasekharan, delivered by a Bench of equal strength, reported in 1995 (2) SCC 630, wherein it was held that prohibition imposed by sections 4(1) and (2) only to suits to be filed or defences to be taken, in respect of property held benami, i.e, benami transaction, after coming into force of the Act and not to those suits filed and defences taken in respect of such benami transaction and pending final decision at the time of coming into force of the Act as had been held earlier by a Division Bench of this Court in Mithilesh Kumari v. Prem Behari Khare.
23. On apparent looking of the said decisions of the Hon'ble Supreme Court, a confusion may be cropped up with regard to the applicability of the bar created under section 4 of the said Act in case of benami transaction, as both the aforesaid decisions of the Hon'ble Supreme Court appear on the first look as conflicting to each other.
24. But, such confusion was erased and/or removed by the Hon'ble Supreme Court in the later decision in the case of Rebti Devi v. Ram Butt, reported in 1997 (11) SCC 714, wherein it was held that the decision in R. Rajagopal Reddy's case (supra) is not in any manner shaken by anything said in Nand Kishore Mehra's case (supra) and both the cases deal with different aspects of the Act and each of the cases continues to govern different provisions of the Act. In fact, the following six principles were laid down in R. Rajagopal Reddy's case (supra):
“(1) Firstly, while section 4(1) prohibited a plea of benami to be raised in a suit, claim or action and again section 4(2) precluded a defence of benami in suits, claims or actions,—these two provisions did not come in the way of a decision on such pleas in matters pending as on 19.5.1998 if such pleas were already raised before 19.5.1988, by one party or other. This was because such pleas which were already raised before 19.5.1988 were not intended to be affected by the Act, if they were raised in suits, claims or actions pending as on 19.5.1988 The repeal provision in section 7 repealed section 82 of the Trusts Act only in that manner and to that extent.
(2) Secondly, on the express language of section 4(1), any right inhering in the real owner in respect of any property held benami would be not enforceable once section 4(1) operated, even if such transaction had been entered into prior to 19.5.1988 and no suit could be filed on the basis of such a plea after 19.5.1988 The same prohibition applied in case of section 4(2) to a defence taken after 19.5.1988 pleading benami in respect of a transaction prior to 19.5.1988 The Act could be said to be retrospective only to that extent. But from this it did not follow that where such a plea was already taken before 19.5.1988 to the effect that the property was held benami, such a plea got shut out merely because the proceeding in which such plea was raised before 19.5.1988 was pending on 19.5.1988
(3) Thirdly, where a suit had been filed before 19.5.1988, and in any written statement filed on or after 19.5.1988, a plea of benami was raised, then such a plea of benami could not also be gone into. If however such a plea in defence had been raised before 19.5.1988, the Act did not preclude that question from being decided in proceedings which were pending on 19.5.1988 Mithilesh Kumari case was wrong in holding that such a defence could not be decided after 19.5.1988 even though the plea was raised before 19.5.1988
(4) Fourthly, if such an interpretation as stated in (1) to (3) was given, it could not be validly contended that a question of invalid discrimination arose between cases where suits were filed on or before 19.5.1988
(5) Fifthly, even though the word ‘suit’ might include appeal or further appeals. Sections 4(1) and 4(2) could not be made applicable to these subsequent stages.
(6) Sixthly, pleas by plaintiffs or applicants and defences after 19.5.1988 of real owners against benamidars were barred under section 4(1) and section 4(2), only to the extent indicated above.”
25. But in Nand Kishore Mehra's case two other principles in addition to the principles laid down in R. Rajagopal Reddy's case were held and those two principles are as follows:
“(7) Seventhly, if in a suit, claim or action, a plea or defence based on benami is raised even after 19.5.1988 and the purchase is in the name of a wife or unmarried daughter, such a plea of benami is permissible and R. Rajagopal Reddy case will not come in the way merely because the plea is raised after 19.5.1988 Such a plea if raised, will however have to be decided taking into account the statutory presumption laid down in section 3(2). This is because the Act says that if the purchase is in the name of the wife or unmarried daughter, the prohibition in section 3(1) will not apply. Section 3(2) is enacted as an exception to the provisions in the Act and does not depend for its interpretation on the question as to what extent Sections 4(1) and 4(2) are retrospective.
(8) Eighthly, if the case falls within the exception in section 4(3)(a) i.e 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 where as stated in section 4(3)(b) 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, then in both situations if such a plea or defence is raised in a suit filed after 19.5.1988, the same can be decided by the Court notwithstanding section 4(1) or 4(2) and notwithstanding what is decided in R. Rajagopal Reddy case.”
26. Thus, the Hon'ble Supreme Court in the case of Rebti Devi (supra) made it clear that if in a suit, claim or action, a plea or defence based on benami is raised even after 19 May, 1988 and the purchase is in the name of a wife or unmarried daughter, such a plea of benami is permissible and R. Rajagopal Reddy's case will not stand as a bar in any way merely because the plea is raised after 19 May, 1988. Such a plea, if raised, will however have to be decided taking into account the statutory presumption laid down in section 3(2) inasmuch as the Act says that if the purchase is in the name of wife or unmarried daughter, the prohibition in section 3(1) will not apply as section 3(2) is enacted as an exception to the provision in the Act and does not depend for its interpretation on the question as to what extent section 4(1) and section 4(2) are retrospective.
27. Thus, by giving anxious consideration on the issue regarding rejection of plaint, this Court has no hesitation to hold that the plaint of the present suit cannot be rejected at this stage under Order 7 Rule 11 of the Code of Civil Procedure, as the suit is required to be heard on merit after taking evidence in the light of the decision of the Hon'ble Supreme Court in the case of Nand Kishore Mehra (supra).
28. Accordingly, the findings of the learned Trial Judge on the petitioner's prayer for rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure stands affirmed.
29. With regard to the petitioner's prayer for return of the plaint because of lack of pecuniary jurisdiction of the Court to try the suit, this Court simply records that the pecuniary jurisdiction of the suit depends on the valuation stated in the plaint unless it is determined by the Court that the reliefs claimed in the suit have been undervalued.
30. In the instant case, the plaintiff stated in the plaint that the valuation of the suit property is Rs. 9,00,000/-. The pecuniary jurisdiction of the Court to try a suit is limited upto Rs. 10,00,000/-. As such, this Court cannot hold that the learned Trial Judge lacks pecuniary jurisdiction to try the instant suit.
31. The petitioner, however, claimed that since one of the suit properties was sold during the pendency of the suit at a price of Rs. 14,67,000/-, the jurisdiction of the Court to try such a suit is ousted due to lack of pecuniary jurisdiction.
32. In my view, jurisdiction of the Court to entertain a suit depends upon the valuation of the suit property as on the date of institution of the suit and the subsequent increase in the valuation of the suit property, may take away the jurisdiction of the Court to try such a suit due to such enhancement of value of the suit property during the pendency of the suit.
33. Here admittedly the market price of one of the suit properties is Rs. 14,67,000/-. The plaintiff also prayed for a decree for issuance of direction upon the defendant No. 3 to transfer the property mentioned in Schedule “1” in favour of the plaintiff at the price as mentioned in the said deed of transfer. Thus, the plaintiff does not dispute the valuation of the said suit property. If one of the suit properties is valued at Rs. 14,67,000/-, this Court has no hesitation to hold that the learned Trial Judge lacks pecuniary jurisdiction to try such a suit at least from the date of amendment of the plaint.
34. The decision of this Hon'ble Court in the case of Paresh Chandra Nath v. Naresh Chandra Nath, reported in 2006 (1) WBLR (Cal) 374, has no application in the facts of the instant case, as that was a case for declaration of title with consequential relief. As such, considering the reliefs claimed in the suit, it was held therein that since the substantive relief claimed in the suit is declaration of title and the consequential relief flows directly from it and since the consequential relief cannot be claimed in the suit independently, the consequential relief need not be valued as per the valuation of the suit property.
35. But here is the case where the principal relief is partition of the joint property. The market value of the suit property is capable of ascertainment. Thus, when admittedly one of the suit properties is valued at Rs. 14,67,000/-, this Court has no hesitation to hold that the learned Trial Judge lacks pecuniary jurisdiction to try such suit.
36. Accordingly, the plaintiff is permitted to correct the valuation statement for incorporating the exact valuation of the suit property therein and after such correction is made, the learned Trial Judge will return the plaint to the plaintiff for filing the same before appropriate Court.
37. All further proceedings of the suit will remain stayed until such correction of the valuation statement is made by the plaintiff.
38. Thus, the plaintiff's prayer for return of the plaint stands allowed.
39. The revisional application, thus, stands allowed partly.
40. Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible.
Jyotirmay Bhattacharya, J.:
Revisional application allowed partly.
S.K.P