Suresh Tanti v. Sudha Devi

====================================================== Appearance : For the Appellant/s : Mr. Ganpati Trivedi, Adv. Mr. Tarkeshwar Pd. Verma For the Respondent No.1: Mr. Harshwardhan Sahay, Adv. For the Respondent No.2: Mr. Rajiv Kumar Sinha, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL ORDER 10 04-02-2013 Heard Mr. Ganpati Trivedi, the learned counsel appearing on behalf of the appellant in support of this appeal. The learned counsel for the respondents is also present.

#2. The defendant 1st set is the appellant in this appeal against the judgment of affirmance upholding the decree in favour of the plaintiff.

#3. The plaintiff filed the suit for declaration of title and for recovery of possession over the suit property described in detail in the plaint. The plaintiff claimed her to be entitled over the suit 2 Patna High Court SA No.624 of 2010 (10) dt.04-02-2013 property on the basis of her purchase by registered sale deed dated

14.11.2000 from the defendant 2nd set. The sale deed dated 17.10.87 with regard to the suit property admittedly stands in the name of the defendant 2nd set. It is the case of the plaintiff that the defendant 1st set who is husband of defendant 2nd set has forcibly dispossessed her from the suit property compelling her to file the suit for the aforesaid reliefs.

#4. The defendant 1st set contested the suit mainly on the ground that the defendant 2nd set is not the real title holder of the property rather the suit property has been acquired by the defendant 1st set in the name of his wife who is the defendant 2nd set. It is also the case of the defendant 1st set that after the purchase of the property by sale deed dated 17.10.87 he constructed the house over the same and has been residing therein with his family. It is further case of the defendant 1st set that later on the bitterness had cropped up between the husband and wife leading to matrimonial cases and the sale deed in question has been executed by the defendant 2nd set in favour of the plaintiff fraudulently although no consideration passed and the plaintiff did not acquire any title or possession on the said basis.

#5. Both the courts below after scrutinizing the pleadings and evidence of the parties have not believed the case of the 3 Patna High Court SA No.624 of 2010 (10) dt.04-02-2013 defendant 1st set and have concurrently come to the finding that the suit property was the property of the defendant 2nd set which she has validly sold to the plaintiff who has been held to be entitled to declaration of title and recovery of possession, as prayed.

#6. Mr. Ganpati Trivedi, the learned counsel appearing on behalf of the appellant has submitted that both the courts below have not correctly appreciated the facts and circumstances as well as the evidence of the parties. It has been urged that the defendant 1st set is admittedly the husband of defendant 2nd set but there had been bitterness continuing between them right from 1981, and therefore, there was no occasion for the defendant 1st set to acquire the suit property in the name of the defendant 2nd set for her benefits. Elaborating his submission, learned counsel has further canvassed that the statutory presumption under Section 3(2) of the Benami Transaction Act stood rebutted in view of the facts as well as the evidence led by the defendant 1st set. It has also been contended that the defendant 1st set had actually paid the consideration money and there is no evidence at all that the defendant 2nd set had any source of income.

#7. As the factual matrix of the case would unveil, the original sale deed dated 17.10.87 of the suit property stands in the name of the defendant no.2 Shakuntala Devi. The plaintiff claims her title over 4 Patna High Court SA No.624 of 2010 (10) dt.04-02-2013 the suit property on the basis of her purchase from Shakuntala Devi by the sale deed dated 14.11.2000 and also prays for recovery of possession. The contention of the defendant 1st set is that suit property, in fact, has been purchased by him but in the name his wife, and therefore, the real title over the suit property resides with him. The provision contained in Sub Section 2 of Section 3 of Benami Transaction Act is clearly attracted in the present facts and circumstances as admittedly the husband defendant no.1 had purchased the suit property in the name of his wife (defendant no.2), and therefore, the presumption would be that the purchase is for the benefit of the wife. The burden of proof squarely lays upon the defendant 1st set to plead and prove that the sale transaction in question was not for the benefit of the wife. There is no such specific pleading in the written statement by the defendant no.1 rather in paragraph 11 of the written statement, it has been stated that the purchase has been made in the name of defendant no.2 out of love and affection. There is also no evidence on behalf of contesting defendant 1st set to establish that the purchase was not for the benefit of defendant no.2. The principle in this regard has been fully explained by the Apex Court in the case of Nand Kishore Mehra Vs. Sushila Mehra AIR 1995 SC 2145. The appellate court below keeping in view the principle laid down by their 5 Patna High Court SA No.624 of 2010 (10) dt.04-02-2013 Lordships in the case of Nand Kishore Mehra (Supra) has rightly come to the conclusion that the defendant 1st set has not succeeded in rebutting the statutory presumption arising from Sub Section 2 of Section 3 of the Benami Transaction Act. Even otherwise also, the evidence led on behalf of the plaintiff including the deposition of the vendor of the sale deed dated 17.10.1987 clearly show that the defendant no.2 had paid the consideration money and was put in possession of the purchased land. There is no evidence on behalf of the defendant no.1st set to establish that he paid the consideration money or has done some acts in consonance with his status as title holder. To the contrary, there are evidence which shows that the defendant 1st set does not reside in the house over the suit land. The inevitable conclusion is that the case set up by the defendant 1st set is not true. Both the courts below have meticulously examined the evidence of the parties and no perversity could be established by the appellant therein. The issues arising between the parties have now been concluded by concurrent findings of fact.

#8. In the result, I find no substantial question of law arising for consideration in this appeal, which is, accordingly dismissed. (V. Nath, J) Nitesh/-