Bagedu Bind v. Kaladev Bind

Patna High Court SA No.426 of 2009 (8) dt.21-11-2012

The plaintiff appellant filed the aforesaid suit for declaration that the registered gift deed dated 23.06.1995 alleged to have been executed by Subhagi Devi in favour of the defendant is illegal, forged, inoperative, void and not binding on the plaintiff and further for setting aside the registered gift deed.

The plaintiff claims the aforesaid relief on the facts inter alia that the plaintiff had purchased the suit property in the name of his wife Subhagi Devi and since purchase the plaintiff was coming in possession of the same. His wife died on 20.04. 2000 leaving behind the plaintiff only as they had no issue. Subsequently the plaintiff learnt that the defendant procured the gift deed from Subhagi Devi on 23.06.1995. According to the plaintiff the gift deed was never executed by his wife and the gift deed is void, illegal and it is not binding. The plaintiff is in possession of the property.

4. The defendant appeared and filed a written statement but did not contest the suit. No evidence was adduced.

The trial court recorded the finding that the plaintiff came to know about the registered gift deed in the year 1999 therefore, the suit is not barred by law of limitation. 3 Patna High Court SA No.426 of 2009 (8) dt.21-11-2012 The trial court also recorded the fact that the plaintiff is the real owner who purchased the suit property and accordingly decreed the plaintiff’s suit. The defendant filed title appeal. The learned appellate court recorded a finding that the plaintiff has failed to prove that he provided the consideration amount and found that in fact the consideration amount was paid by Subhagi Devi and accordingly the learned appellate court allowed the appeal and set aside the trial court judgment.

The learned counsel for the appellant submitted that the defendant only filed the written statement. No evidence was adduced contrary to the evidence adduced by the plaintiff but the lower appellate court has wrongly held that the plaintiff has failed to discharge his onus. Learned counsel further submitted that he was all along in possession of the property and he came to know about the gift deed only after the death of his wife. When the evidence adduced by the plaintiff was ex-parte the court could not have dismissed the plaintiff’s suit discarding the evidences adduced by the plaintiff.

It may be mentioned here that according to the plaintiff himself the property was purchased in the name of his wife in the year 1978. The suit has been filed in the year 4 Patna High Court SA No.426 of 2009 (8) dt.21-11-2012

2001. Admittedly the registered gift deed has been executed by the plaintiff’s wife in the year 1995. The plaintiff in the suit claimed that he is the real owner whereas the wife Subhagi Devi was the Benamidar of the plaintiff. It may be mentioned here that after coming into force of Benami Transaction (Prohibition Act 1988), this plea taken by the plaintiff is barred under section 4 of the said Act. For better appreciation the relevant provisions of the Benami Transaction Prohibition Act 1988 is quoted herein below: Section 3 of the Benami Transaction Act, 1988 reads as follows: “3. Prohibition of benami transactions-(1) No person shall enter into any benami transaction. (2) Nothing in sub-section (1) shall apply to – (a) the purchase of property by any person in the name of his wife of unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter; (b) the securities held by a – (i) depository as registered owner under sub-section (1) section 10 of the depositories Act, 1996. (ii) Participant as an agent of a depository. 5 Patna High Court SA No.426 of 2009 (8) dt.21-11-2012 Explanation- The expressions “depository” and “participants” shall be the meanings respectively assigned to them in clauses () and (g) of sub-section (1) of section 2 of the Depositories Act, 1996.) (3) Whoever enters into any benami transaction shall be punishable imprisonment for a term which may extend to three years or with fine or with both. (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under this section shall be non- cognizable and bailable.”

In view of the above provision the presumption is that the property has been purchased for the benefit of the wife. Therefore, the presumption is in favour of the person in whose name the property stands. Admittedly in the present case the property stands in the name of the wife. Section 4 of the Benami Transaction (Prohibition) Act, 1988 reads as follows:

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 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 of it, claim or action by or on 6 Patna High Court SA No.426 of 2009 (8) dt.21-11-2012 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; (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 view of the above provision of Benami Transaction (Prohibition) Act, 1988 no suit or action to enforce any right in respect of any property held benami against the person in whose name the property is held shall lie by or on behalf of a person claiming to be the real owner of such property. Therefore, section 4 creates a bar regarding the maintainability of the suit. However, in the present case since the property has been alleged to have been purchased by the husband in the name of wife it is saved under section 3 of the said Benami Transaction Act. Therefore, since presumption is in favour of the defendant the contrary has to be proved by the plaintiff to the effect that the property has not been purchased for the benefit of wife. So far this proof is concerned, it may be mentioned here that neither there is any 7 Patna High Court SA No.426 of 2009 (8) dt.21-11-2012 pleading nor any evidence to this effect.

In the case of Nanda Kishore Mehra Vs. Sushila