9911796707
TMI Blog2016 (9) TMI 1590X X X X Extracts X X X X X X X X Extracts X X X X ..... l house" at premises no. 8A, Alipore Road, P.S. Alipore, Kolkata and thus, the plaintiff became the absolute owner in respect of that portion of the property including the common area, like the stair case etc. The consideration money was Rs. 1,75,000/-. It is also the positive case of the plaintiff/appellant that she purchased the property from her own fund. Thereafter, the marriage between the parties was dissolved as per a decree as passed in Petition No. 101 of 1984 by an order dated 26th September, 1984 as passed by the learned Additional District Judge, Delhi. Thereafter, the plaintiff requested the defendant to vacate the suit premises terminating the permissive possession but the defendant did not comply with the said request. The said Title Suit was filed as such treating the defendant as a trespasser praying for eviction and recovery of khas possession. The defendant contested the suit by filing written statement before the learned trial court, admitting the marriage but it was the specific case of the defendant that the said property was purchased by the defendant himself from his own money and the money contributed by his companies and he is in possession of the suit pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paper book). Before the learned trial court, the plaintiff examined herself as the sole witness and on behalf of the defendant/respondent, three witnesses were examined being the defendant himself as D.W.1, Ramesh Gupta, one Chartered Accountant as D.W.2 and Sudip Basak, the caretaker-cum-Accountant of the said building, "Jindal House" as D.W 3. Mr. Chatterjee the learned Advocate appearing on behalf of the appellant submitted before this court that the provision of Section 4(2) of the Benami Transaction (Prohibition) Act, 1988 was not considered and as per the claim of the appellant, this claim of Benami cannot be taken either as a defence or as a claim to acquire title over a property. He further argued that Section 4(3)(b) of the said Act was also not considered. It has further been submitted by Mr. Chatterjee by taking me to page no.49 of the paper book as regards the substantial questions of law that this Court is to decide as to whether the claim of the defendant is barred in view of Section 4(2) of the Act of 1988. He further submitted that the story of fiduciary relationship was neither claimed by the defendant in the written statement and nor any evidence was adduced on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e plaintiff. Mr. Chatterjee submitted that this plaintiff got in total Rs. 73,821/- as salary from the said Company and also rent for the relevant period. He further submitted that this DW.1 admitted in his evidence that this plaintiff was the Managing Director of Kanak Engineering, another private limited company and as such, the plaintiff must have derived some income from that Company also. Thus, he tried to establish that this plaintiff/appellant had enough money to purchase the flat in question by two registered deeds executed and registered on 16th of January, 1979. He further submitted that the possession of this defendant is not legal possession. As to the term 'fiduciary relationship', learned Counsel submitted by taking me to Black's Legal Dictionary, 7th Edition, page no.640 to show that the relationship between the husband and the wife is not a 'fiduciary relationship'. On behalf of the defendant/respondent, it was submitted by Mr. Subir Sanyal, learned advocate, by taking me to Ext.1 and Ext.1A that there is mention in both the deeds that on which dates the consideration money was paid. He submitted that those deeds will reflect that payments we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ika from Tractel Tifor Compamy from 23-12-1978 to 04-01-1979 and this amount plus Rs. 9,000/- will take us to Rs. 82,000/-. As regards the account of Kanak Engineers Private Limited, it is the submission of Mr. Sanyal, by again taking me to Ext.F2, that the plaintiff got Rs. 89,000/- plus Rs. 48,000/-, in total to Rs. 1,37,000/-. Thus Mr. Sanyal tried to prove that in total Rs. 2,19,000/- was transferred to the account of the plaintiff either by the defendant or by his companies. He further submitted to consider the status of this defendant as he was the Promoter and Managing Director of Tractel Tifor Company and also the founder member of Kanak Engineers Private Limited. He further submitted that both the companies being private limited companies, the word of this defendant was the last word. He took me to the evidence of DW1 to show that this defendant had 70% share in respect of Tractel Tifor and 78% share in respect of Kanak Engineers Private Limited and Mercury Breweries. Thus, through all these, Mr. Sanyal tried to convince this Court that actually the money came into the account of the plaintiff either from the personal account of the defendant or from the accounts of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as to who supplied the money for the acquisition of the disputed land and construction of the building thereon. He also relied another decision of the Apex Court as reported in AIR 2001 SC page 2920 (Veerayee Ammal vs. Seeni Ammal) wherein the Court held concurrent findings of the fact of the Courts below cannot be disturbed by the High Court in the second appeal on appreciation of evidence that another view is possible. He also relied on another decision of the Apex Court as reported in (2002) 4 SCC 460 at paragraph 13 (Zorawar Singh vs. Sarwan Singh) wherein the Apex Court held that misreading or misinterpretation of a small portion of evidence by the First Appellate Court was held not sufficient for setting aside findings recorded by the First Appellate Court on the basis of appreciation of entire evidence on record. In reply it was submitted by Mr. Chatterjee that the decision of Mithiles Kumari (supra) is not a good law in view of the decision of the Apex Court as passed in Raja Gopal Reddy (supra). He further contended that the story of fiduciary relationship was not pleaded at all in the written statement filed by the respondent and as such he cannot take the advantage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the possession of the flat was with. Thus, this ingredient to test as to whether the transaction was benami or not needs no answer from this Court. I admit that the burden of proof was with the defendant who claimed the benami transaction. This Written Statement was filed on 18th September, 1989 and the Act of 1988 came into force much earlier and as such the claim ipso facto is barred under the provisions of Section 4 (1) of the said Act of 1988. Section 4 (1) that Sub-section runs thus:- '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.' The defendant has admitted in the Written Statement that he purchased the property in the name of his wife out of money paid by his company and such purchase was made for his benefit and also for the benefits of his family members. Thus, he did not even say in the W.S that the property was purchased for the benefit of his. It is well settled that intention of parties is the essence of the benami transaction and money must have been pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l court it appears that only one sentence was used by the learned trial court in disposing of the plea as to whether Section 4 of the Act of 1988 can be made applicable in the said suit. The learned trial court proceeded to say while answering issue no.3 "admittedly this case is beyond the purview of Section 4 of the benami transaction and the prohibition Act". The learned trial court further said that this being so the defendant had no right to prove that the property was purchased in his name. The learned trial court relied upon the judgment of the Apex Court as reported in AIR 1977 SC 409 (Union of India -vs- Moksh Builders and Financiers Ltd. and Ors.) wherein the Apex Court held that an admission by a party is substantive evidence of the fact admitted and admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. I have already said that defendant admitted that the said transaction was benami and in view of such admission there is no question of any second thought th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he name of this plaintiff/appellant in the year 1979 there was no cloud in the marital relationship between the parties. I have already said that evidence is galore that the entire consideration money came from either the defendant personally or from his private limited companies. It is immaterial whether the defendant violated the provisions of the companies act or whether such money was reimbursed to the company. It is true that after purchasing the property the parties shifted to the suit flat and the defendant is still residing there. The marriage between the parties was dissolved on 26.09.1984 that is roughly after six years of the execution of those deeds and the suit was filed on 2nd of July, 1987 that is after a gap of 2 year 9 months of the divorce. Thus, when a fat amount (as per money value of 1978-79) was given to the wife for the purchase of the suit flat this court is satisfied that the husband had good faith on his wife and that the relationship at that point of time was 'fiduciary' one. The plaintiff/appellant was like a 'trustee' vis-à-vis her husband, if he is treated as 'trust'. The cumulative effect of the circumstances noted above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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