Bijoy Kant Dey v. Radha Kant Dey

S. Ali Ahmad, J.:— This appeal was first placed before a Division Bench consisting of Mr. Justice S.S Hasan and Mr. Justice Satyeshwar Roy. The question involved in the appeal was as to whether the house in question was acquired by the plaintiff-respondent in the Benami name of his son, the defendant-appellant Mr. Justice Hasan held that the plaintiff-respondent failed to prove that it was he, who acquired the property in the Benami name of his son, the defendant-appellant. Mr. Justice Roy, on the other hand, was of the view that the house in suit was acquired by the plaintiff-respondent in the Benami name of his son, the defendant-appellant. The appeal was, therefore, allowed by Mr. Justice Hasan but was dismissed by Mr. Justice Satyeshwar Roy. In these circumstances the appeal has been placed before me.

2. Shortly stated, the plaintiff-respondent filed a suit for declaration that the property standing on plot no. 579 belonged to the plaintiff and that the defendant was his Benamidar. According to the plaintiff, the lands in question were acquired by him under two sale-deeds dated 24-11-1940 and 24-11-1940 in the Farzi name of his son (the defendant) who was a minor at that time. According to the plaintiff, he was in remunerative employment and had means to pay the price of the land and was also in a position to construct a house thereon. Further according to the plaintiff, the defendant was a minor and had no income of his own, the consideration money for the purchase of the lands was paid by the plaintiff. The defence, inter-alia, was that the defendant was not a minor and that he had started earning small amount and had saved some money. Out of his savings, it is said, he purchased the land in question from Amiya Mitra and Rup Narain Choudhary for Rs. 47 and Rs. 216 respectively under the two sale-deeds (Exts. 1 and 1.f). The allegation of the plaintiff that he was in possesession of the suit property was also denied. According to the defendant, the plaintiff was living in the house being his father.

3. In support of their respective cases, parties led evidence, both oral and documentary. The trial Court on appreciation of the evidence so adduced came to the conclusion that the appellant was not a minor in the year 1940 when acquisitions were made. It also held that the two sale-deeds (Exts. 1 and 1.f) came from the custody of the plaintiff but according to it, that was of no consequence on the facts of this case. It further held that both the plaintiff and the defendant were in possession of the House. With regard to motive, the trial Court was of the opinion that there was no motive as such for the plaintiff to acquire the lands in the name of his son. But it found as a fact that the consideration money for the purchase of the land under Exts. 1 and 1.f was paid by the plaintiff. It, therefore, held that the defendant was a Benamidar of the plaintiff. On these findings, the suit was decreed.

4. Before I consider the evidence on record, it will be proper to mention the different findings recorded by the two learned Judges constituting the Division Bench:—

(a) The finding that the defendant was not a minor when the acquisitions were made as recorded by the trial Court was not challenged before the learned Judge. Both of them, therefore, held that the plaintiff was not a minor when the acquisitions were made.

(b) Mr. Justice S.S Hasan has held that the plaintiff had failed to prove that the consideration money was paid by him whereas, Mr. Justice Satyeshwar Roy was of the view that the plaintiff had discharged his onus and had established that the consideration money for the two sale-deeds was paid by him. Mr. Justice Hasan, therefore, held that the purchase under Exts. 1 and 1.f could not be said to be Benami whereas. Mr. Justice Roy held that the suit property belonged to the plaintiff which was acquired in the Benami name of the defendant.

5. On the basis of the conflicting findings recorded by the learned Judges, Mr. Justice Hasan allowed the appeal dismissing the suit; whereas Mr. Justice Satyeshwar Roy dismissed the appeal.

6. The two learned Judges did not formulate the point of difference and referred the entire appeal to a third Judge. In these circumstances, arguments were advanced on points other than those on which the two learned Judges differed. I propose to deal with those arguments.

7. Before me also the finding that the defendant was not a minor in the year 1940 was not challenged. Learned Counsel for the two sides also agreed that on the facts of this case. The determining factor will be the finding as to who paid the consideration money. They also agreed that on the peculiar facts of the case, the other tests regarding motive, custody of documents, relationship and possession fall in the background. I think, the learned counsel were right. The question, therefore, is as to who paid the consideration money. But before I take up that question, I want to make it clear that the onus to prove the acquisition by the plaintiff in the Benami name of the defendant lies heavily on the plaintiff.” The apparent state of affair is the real state of affairs unless proved to the contrary.” The sale-deeds stand in the name of the defendant, that is the apparent state of affair. If the plaintiff has to succeed, he must prove that the apparent state of affair is not correct. Keeping this fact in view the evidence on this point has now to be examined.

8. First I take up the oral evidence. Witnesses examined on behalf of the plaintiff-respondent on that point have said that the consideration for the purchase of the land in suit in Benami name of the appellant-defendant was paid by Radha Kant, the plaintiff respondent of them, P.W 7 is a witness, who attested the sale-deed executed by Amiya Mitra. He also has stated that the consideration money of both the two sale-deeds was paid by the plaintiff a ad that the construction over suit land was made four months after the execution of the sale-deed which was completed in eight months. There is nothing in the cross examination of the aforesaid witnesses to discredit their testimonies. They appear to have been closed to the plaintiff and as such were conversant with his affairs. Then there is an evidence of the plaintiff himself as P.W 12. He has stated in detail about the acquisition of the suit land made by him. No doubt, he has stated that the defendant was a minor at that time, which is not correct, but that does not mean that he had not paid the consideration money and the fact that defendant had no means to pay the amount is not correct. According to the defendant's case himself, he had just passed his matriculation examination and had gone to Calcutta and was struggling to establish himself in life. I am, therefore, inclined to accept the evidence adduced on this point by the plaintiff.

9. The first witness examined on behalf of the defendant is Birendra Nath Boral (D.W 1). He is the Sala of the respondent. According to this witness, the appellant, while reading in school, was staying with him and used to help Rukmini Kanta Dey, brother of the plaintiff-respondent in his hessian business for which the appellant used to get money from him. Farther according to his evidence, the appellant went to Calcutta in the year 1940 but he returned to Japla in the year 1941 on account of death of his sister. The next witness is D.W 2. According to this witness, the appellant started hessian business which continued for about 8 to 10 years and then he purchased the suit land. He saw appellant sometime in the year 1939. That means, the appellant purchased the suit land in the year 1947 or 1949. The lands were admittedly purchased in the year 1940. Therefore, the evidence of this witness is not of much help to the appellant, D.W 3 (the appellant) also has stated that he went to Calcutta in the year 1939 but returned in the year 1940. According to him also, he used to get some money from Rukmini Kanta Dey as he helped him in hessian business. Even if the evidence of these witnesses that the appellant used to get some money from Rukmini Kanta Dey is accepted, it is not known as to what was the quantum of that money. There is no evidence on the point whether the money paid was just sufficient to sustain the appellant in Calcutta or was enough to make some saving after meeting the necessary expenses for his stay there. Moreover, the fact that the appellant used to help Rukmini Kanta Dey in his business who in his turn, used to pay something to the appellant has not been pleaded in the written statement. To me it appears that this story has been introduced at the stage of evidence just to show that the appellant had means to make payment for the purchase of the land in question.

10. I shall now refer to the documents. The first document is Ext. 9 wherein the appellant has mentioned his expenditure and acquisitions made by him from time to time. The entries are all in the pen of the respondent. The criticism against this document is that it has not been maintained in regular course of business and, as such, is not admissible in evidence, I have very carefully perused this exhibit and I agree with learned counsel for the appellant that the entries made therein are not in regular course of business but notwithstanding this, in my opinion, it is admissible under Section 13 of the evidence Act as the right to the suit land has been asserted therein. This assertion can be found at page 15 of the Exercise Book wherein it has been mentioned that the plaintiff respondent purchased the suit land from Rup Narain Choudhary and from Amiya Mitra for a sum of Rs. 216 and Rs. 47 respectively. Further the entry at this page shows the page number of the registration book in which the two sale-deeds have been copied. Undisputedty, this entry is in the pen of the plaintiff-respondent and a very look of the Exercise Book and the writings therein indicate that they are sufficiently old, older than the suit. Then again at page 51, I find the detailed expenditure on 25th November, 1940, incurred over the construction of the house on the suit land. This entry also by the very look of it is very old and there is no reason why the appellant will mention these details unless that was the real state of affair. I am, therefore, of the opinion that the entries in Ext. 9 although not kept in regular course of business is admissible as it has been written by the respondent wherein I get the assertion of his right by way of mentioning about the purchase of the land and construction of the house. This evidence along with the oral evidence proves the case of the plaintiff-respondent that he was the real purchaser of the lands. In this connection, I may mention that I am not at all impressed by the entries In Ext. 9 at page 135 showing that on 1st April, 1939, a sum of Rs. 620.12 annas 8 pie stood in the name of the appellant in his post-office savings bank account at Daltonganj. The reference to this page I am making because it was urged on behalf of the appellant that the appellant had sufficient money in his own account to purchase the land. The evidence on record is that this account was opened in the year 1928 when even according to the appellant himself he was aged about seven years. The money, therefore, in that account could not belong to the appellant as admittedly he did not have his independent source of income. The amount therefore, certainly belonged to the respondent and if the consideration money was paid out of this account as was suggested in argument by learned counsel then also the real purchaser was the respondent and not the appellant.

11. Another argument that has been advanced by learned counsel for the appellant is that the suit was barred under Section 34 of the Specific Relief Act because the prayer is only for a declaration of title and not for the consequential remedy that is possession. To support his argument learned counsel drew put attention to the fact that admittedly the family of the appellant was living in the house, the appellant himself having gone to Benaras it was said that as a result of the declaration sought for the plaintiff-respondent will not get possession over the portion in which the family members of the appellant are living. I do not think that this argument is correct. The special feature of this case is that the plaintiff respondent is the father and the appellant is the son. The case of the plaintiff-respondent is that he, as father, has an obligation to keep his children and their families in the house and when he allows them to live in the house that does not mean he has no possession over the house. I do not find any difficulty in accepting this position. Every father certainly will like to provide comfort and shelter to his children and if he allows or gives a portion of the house to them then that does not mean that he is out of possession. In the circumstances, the possession of the children becomes that of a licensee. Similar is the position with the appellant and his family They are mere licensees living in the house at the will of the appellant. There was no occasion for asking for any consequential relief. There is thus no merit in this argument.

12. Mr. Debi Prasad raised another Interesting point before me although it was not taken up either before the trial Court or before the learned Judges, who constituted the Division Bench. The argument is that the suit itself was not maintainable in view of Section 281-A of the Income-tax Act (hereinafter to be referred to as the Act”) Before I deal with this argument, it will be convenient to quote the section which is as follows:—

“281-A. Effect of failure to furnish information in respect of properties held benami.

(1) No suit to enforce 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 instituted in any Court by or on behalf of a person (thereinafter in this section referred to as the claimant) claiming to be the real owner of such property unless:

(a) the income, if any, from such property has been disclosed in any return of income furnished by the claimant under this act; or

(b) such property has been disclosed in any return of net wealth furnished by the claimant under the Wealth-tax Act, 1957 (27 of 1957); or

(c) notice in the prescribed form and containing the prescribed particulars in respect of the property has been given by the claimant to the Income-tax Officer.

(2) …………

13. The argument advanced by Mr. Debi Prasad is that suit itself to enforce the right in respect of the house in question which according to the respondent was held Benami in the name of the appellant was not maintainable because the plaintiff had not complied with any of the conditions mentioned in clauses (a)(b) and (c) of sub-section (1) of Section 281-A of the Act. A bare reading of this section shows that the provisions are mandatory in character and an injunction has been imposed from instituting a suit in respect of any property held by the plaintiff in Benami name unless he complies with one of the three conditions mentioned in the three clauses. According to Mr. Debi Prasad, the onus is on the plaintiff to establish that he has complied with the provisions of Section 281-A of the Act and as nothing in that regard has been said either in the evidence it must be held that, the suit was not maintainable on that count. Mr. S.B Sinha on the other hand, contended that Section 281-A of the Act was prospective in character and will apply only to such acquisition which were made subsequent to the enforcing of Section 281-A. In this case although the suit was filled shortly after enforcement of Section 281-A of the Act but the acquisition was made about 15 years prior to the enforcement of Section 281-A of the Act and, therefore, the present suit will not be controlled by this section. He also contended that if the suit has to be defeated on account of Section 281A of the Act then the defendant must plead and prove that the plaintiff has not complied with the provisions of this section. These questions are, no doubt, interesting, but so far this appeal is concerned, I do think, it is open to the appellant to raise this point for the first time at this stage. The suit was filed in the year 1973 and Section 281-A of the Act was enforced before that on 15th November, 1972. Had the appellant raised this objection, the plaintiff might have withdrawn the suit giving rise to this appeal and filed another suit after complying with the requirements of Section 281-A of the Act. If this point is allowed to be raised and decided in favour of the appellant then the result will be that the suit will be dismissed the respondent will not be in a position to file another suit because admittedly another suit for the relief claimed will be barred by limitation. In this connection I may refer to a Bench decision in the case of Ramnarain Prasad… v. Ram Kishun Prasad…., 1. In that case an objection regarding maintainability of the suit for want of notice under Section 80 of the Code of Civil Procedure was taken for the first time in the Letters Patent Appeal in the High Court. Section 80 of the Code, as is well known provides that save as otherwise provided no suit shall be instituted against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after the notice in writing has been delivered and left at the office of the person mentioned in clauses (a), (b), (bb) or (c) of the section. The language is similar to Section 281-A of the Income-tax Act. In the case referred to above, the plea of want of notice under Section 80 of the Code was taken by the defendant for the first time in the Letters Patent Appeal a plea which had never been raised before in the history of the case. The learned Judges were of the view that if the defendant was allowed to raise the plea regarding want of notice under Section 80 of the Code of Civil Procedure, then it was impossible for the plaintiff to bring another suit because of limitation. In the circumstances, it was held that objection regarding notice must be deemed to have been waived. The aforesaid case fully applies to the facts of this case and, therefore, it must be held that the objection regarding non-compliance of Section 281-A of the Act must be deemed to have been waived.

14. For these reasons, I record my inability to agree with brother S.S Hasan, J. and I agree with brother Satyeshwar Roy, J. The appeal, therefore is dismisssed, but without costs.