Home Case Index All Cases Benami Property Benami Property + HC Benami Property - 2016 (9) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2016 (9) TMI 1590 - CALCUTTA HIGH COURTBenami transaction - battle between a divorced couple - wife filed Title Suit - fiduciary relationship - Whether the Learned Trial Courts below committed substantial error of law in arriving at the finding of Benami ignoring the point that the husband could not take the plea of Benami in the written statement in view of the statutory bar contained in Section 4(2) of the Benami Transaction (Prohibition) Act, 1988 - whether the plaintiff was acting as (sic) fiduciary capacity in relation to the purchase of the property in question? - HELD THAT:- When the property was purchased in the name of this plaintiff/appellant in the year 1979 there was no cloud in the marital relationship between the parties. As 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, when seen in the light of the substantial amount paid by the defendant/husband that puts the plaintiff/appellant in 'fiduciary capacity' vis-à-vis her husband. Such being the case the transaction is completely saved from the mischief of Section 4 of the Act by reason of the same falling under Sub-Section 3(b) of Section 4. Thus, reiterate that the plea of banami as raised by the respondent/defendant was not, therefore, barred by the said Act of 1988. It is true that in the written statement the claim was not made by the defendant that the wife was in a fiduciary relationship with her husband and on that score the learned Advocate on behalf of the appellant submitted that this ground cannot be taken up by this court. I am sorry to say that this being one legal question it is immaterial whether it was urged in the pleading. Thus, the argument of Mr. Chatterjee on this point is not convincing to this court and answered in the negative. Thus, both the substantial question of law as framed is answered accordingly. Thus, in view of the discussions so long made, this court is satisfied that there is no merit in second appeal and the second appeal is dismissed accordingly.
|