2020 (12) TMI 764 - HC - Benami Property

Benami transaction - Plaintiff entitled to get a declaration of right, title and interest of the suit land - Prohibition of the right to recover property held benami - suit barred by Benami Transaction (Prohibition) Act, 1988 - HELD THAT - If the title is established in favour of the vendor and the vendor does not raise any objection as regards the execution of transfer, none can have the locu standi to challenge the validity of the deed of transfer Exbt.3 . As such, the plaintiffs title cannot be questioned by the defendant and he is estopped from questioning the transfer in favour of the plaintiff. Moreover the pleadings relating to non-execution of the deed of transfer Exbt.3 by the legal heirs of Hrisikesh Majumder have not been proved complying the requirement of Section 103 of the Evidence Act. Whether the finding of the appellate Court on the additional issues framed by the said Court suffers from perversity ? - From the discussion made above, it is evident that the finding of the first appellate court in respect of the additional issue as referred in the substantial No.1 is perverse. Having discussed as such, this court is of the view that the plaintiffs are entitled to get a declaration of right, title and interest of the suit land in his favour and he is also entitled to get a declaration in respect of possession of the suit land and accordingly, his possession over the suit land is confirmed. As consequence thereof, the plaintiff is entitled to a decree of perpetual injunction restraining the defendant or his man or agents from entering into the suit land and disturbing the peaceful possession of the plaintiff. As corollary, the impugned judgments and decrees are set aside. The judgment and decree of the trial court are restored. In the result, the appeals are allowed.

Summary

Issues Involved
1. Whether the court can frame an issue beyond pleadings, specifically issue No.5 framed by the appellate court.
2. Whether the finding of the appellate court on the additional issues framed by the said court suffers from perversity.

Issue-wise Detailed Analysis

1. Framing of Issue Beyond Pleadings
The primary legal question was whether the appellate court was justified in framing issue No.5, which questioned if the suit was barred by the Benami Transactions (Prohibition) Act, 1988. The court examined this in light of Section 4 of the Act, which prohibits any suit to enforce rights in respect of property held benami. The court noted that the property in question was held by Mira Rani Majumder in a fiduciary capacity for Hrisikesh Majumder, thus falling under the exceptions provided in Section 4(3)(b) of the Act.

The court found that the issue of benami transaction was not based on the rival pleadings and that the release deed executed on 30.04.1984, which was not challenged by the defendant, effectively transferred the title to Hrisikesh Majumder. The court ruled that the appellate court had no basis to frame this issue as it was not within the pleadings, and the release deed was a valid transfer of title, either as a gift or as a fiduciary transfer.

2. Perversity of Appellate Court's Findings
The appellate court's findings were scrutinized for perversity. The court observed that the appellate court had misinterpreted the release deed, which was a clear transfer of property without consideration. The appellate court's conclusion that the deed did not transfer title was deemed perverse and unsustainable. The court highlighted that the defendant had admitted the ownership of Hrisikesh Majumder and had entered into an agreement to purchase the property from his legal heirs, further validating the transfer.

The court also noted that the appellate court had erroneously insisted on the examination of attesting witnesses to the release deed, despite its validity never being questioned. This insistence was deemed unnecessary and indicative of a perverse finding.

Conclusion
The court concluded that the plaintiffs were entitled to a declaration of right, title, and interest over the suit land and confirmed their possession. The appellate court's judgment was set aside, and the trial court's judgment was restored. The appeals were allowed, and the plaintiffs were granted a decree of perpetual injunction against the defendant. The court directed the revenue authority to mutate the record in favor of Hrisikesh Majumder and subsequently to his legal heirs and the plaintiff.