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2023 (5) TMI 349 - HC - Benami PropertyBenami Transactions - Owner of joint family property and shares of the parties in various properties - validity of gift deed (a sham) - property purchased out of stridhana property - burden of prove - Rule of Succession - HELD THAT - It is trite law that when a plea of benami is taken burden of proof lies on the person who asserts so that the property is benami. In JAYDAYAL PODDAR (DECEASED) THROUGH HIS L. RS AND ANOTHER VERSUS MST. BIBI HAZRA AND ORS. 1973 (10) TMI 55 - SUPREME COURT speaking for the Bench Justice R. S. Sarkaria succinctly laid down the principle of law that It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner always rests on the person asserting it to be so. Reliance also placed on BINAPANI PAUL VERSUS PRATIMA GHOSH AND ORS. 2007 (4) TMI 752 - SUPREME COURT referring to BHIM SINGH (DEAD) LRS. VERSUS KAN SINGH 1979 (12) TMI 158 - SUPREME COURT as well as the four indicia laid down therein. It was observed by the Supreme Court of India in this case that the four factors should have to be considered cumulatively. The Court in this case considered the relationship of the parties namely husband and wife primarily motive of the transaction i.e. security for the wife and seven minor daughters as they were not protected by the prevailing law and the legal position at that material point of time. Coming to the present case it is averred in the original Plaintiff that the properties namely premises no. 26 Sitaram Ghosh Street Calcutta and 31 College Row Calcutta were purchased by his grand-father Nani Gopal Dutt in benami in the name of Rani Bala Dutt since deceased. Rani Bala Dutt was name lender only but actual ownership was that of Nani Gopal Dutt - Although it is stated by PW 1 that though it is not mentioned in the deed that property was purchased benami but they were aware of the fact that consideration money was paid by Nani Gopal Dutt. It is also stated by him that he was two years infant at the time of execution deed so personal knowledge cannot be put on him on the transaction. In course of cross-examination it is also conceded by him that he heard information from paternal uncle and thought consideration money relating to the documents was paid by Nani Gopal Dutt. Original testimony of PW 1 states that he was two years old at the time of execution of deed in respect of the premises; he has no personal knowledge therefore. He derived his knowledge about execution and payment of consideration money from his paternal uncle. There is no other proof that consideration money was paid by Nani Gopal Dutt. It is specifically stated by PW 1 that Nani Gopal Dutt did not transfer any money to Rani Bala Dutt as they were husband and wife - There is no evidence to show by any cogency the circumstances prevailing at the time of purchase of the properties or any intention of Nani Gopal Dutt to purchase the properties in the name of his wife. In absence of anything more the available evidence adduced on behalf of the original Plaintiff failed to establish by preponderance of probabilities that the property was purchased by Nani Gopal Dutt in the name of his wife in benami; that consideration money was paid by Nani Gopal Dutt and that Rani Bala is the only ostensible owner or name lender but the real owner of the Nani Gopal Dutt. Therefore it is not established that the premises no. 26 Sitaram Ghosh Street Calcutta and 31 College Row Calcutta were purchased by Nani Gopal Dutt in benami of his wife or that consideration money was provided by Nani Gopal Dutt. In absence of any cogent evidence it cannot be decided that Rani Bala Dutt was a benamdar and the real owner was Nani Gopal Dutt in respect of the two premises namely 26 Sitaram Ghosh Street Calcutta and 31 College Row Calcutta. Property purchased by a woman with her stridhana - HELD THAT - Property purchased by a woman with her stridhana and savings of the income of stridhana constitute stridhana according to all schools of Hindu Law as discussed by Sir D. F. Mulla. It does not make any difference whether the property is immovable or not. There is no presumption that property of a woman who has no income should be actually that of her husband. This is the presumption which impressed too much the plaintiff s witness - it is the conclusion that the two premises namely 26 Sitaram Ghosh Street Calcutta and 31 College Row Calcutta were owned by Rani Bala Dutt as her stridhana property. Rule of succession - HELD THAT - There is no authority to suggest that the claim of the sons of a predeceased son is preferred to a son or daughter or are set on the same pedestal in matter of succession of stridhana property of a woman. When a son was living the rights of the sons of a predeceased son do not come to the foreground or hold their sway. In nutshell it is the conclusion that in absence of any daughter it is the son who would inherit the stridhana properties of a woman. Therefore the original Plaintiffs being predeceased sons of the son of Rani Bala Dutt had no right title or interest or right to succeed Rani Bala Dutt s srtidhana properties. These properties namely premises no. 26 Sitaram Ghosh Street Calcutta and 31 College Row Calcutta do not form part of joint properties as between the original Plaintiffs and the Defendant. The original Plaintiffs are not entitled to any partition in respect of the properties located at premises no. 26 Sitaram Ghosh Street Calcutta and 31 College Row Calcutta. The original Defendant Paresh Chandra Dutt being the surviving son of Rani Bala Dutt inherited her stridhana properties and the properties located at 26 Sitaram Ghosh Street as well as 31 College Row Calcutta. Preliminary decree in respect of 8B Nabin Pal Lane Calcutta 16 Beniatola Lane Calcutta and 17 Beniatola Lane Calcutta has already been drawn up. Since it is decided hereby that the properties located at premises no. 26 Sitaram Ghosh Street Calcutta and 31 College Row Calcutta do not form part of the joint properties as between the original Plaintiffs and the Defendant and that these two later properties should not be subject to the present partition suit no further preliminary decree need to be drawn up - the suit should be fixed for hearing on the report of the Partition Commissioner and argument for passing final judgment. Fix 10/03/2023 for argument.
Issues Involved:
1. Ownership of properties at 26, Sitaram Ghosh Street, Kolkata, and 31, College Row, Kolkata. 2. Whether these properties were purchased with stridhana property or by Nani Gopal Dutt in the name of Rani Bala Dutt. 3. Succession rights to these properties. 4. Plaintiffs' interest in the immovable properties listed in Schedule A. 5. Reliefs entitled to the parties. Issue-wise Detailed Analysis: 1. Ownership of Properties at 26, Sitaram Ghosh Street, Kolkata, and 31, College Row, Kolkata: The original Plaintiffs claimed that these properties were purchased by Nani Gopal Dutt in benami in the name of his wife, Rani Bala Dutt. The Defendants contended that Rani Bala Dutt purchased these properties with her stridhana property. The court examined the evidence and found that the Plaintiffs failed to establish that the properties were purchased by Nani Gopal Dutt in benami. The testimony of Loknath Dutt, one of the Plaintiffs, was based on hearsay, and there was no direct evidence to prove that Nani Gopal Dutt provided the consideration money. The court concluded that Rani Bala Dutt was the actual owner of the properties. 2. Whether Properties were Purchased with Stridhana Property or by Nani Gopal Dutt: The court referred to the principles laid down in various judgments, including Jaydayal Poddar vs. Bibi Hazra and Thakur Bhim Singh vs. Thakur Kan Singh, which state that the burden of proving a benami transaction lies on the person asserting it. The Plaintiffs failed to provide concrete evidence that the properties were purchased by Nani Gopal Dutt in benami. The court also referred to the work of Dwarka Nath Mitter, which states that land purchased by a woman with her stridhana becomes her stridhana. The court concluded that even if the funds were provided by Nani Gopal Dutt, the properties would still be considered stridhana of Rani Bala Dutt. 3. Succession Rights to the Properties: The court examined the rules of succession under Dayabhaga School of Hindu Law. It was established that the stridhana property of a woman is inherited by her sons prior to the sons of her predeceased son. The court referred to the judgment in Prakash Chandra Mukherji vs. Nandarani Debi, which confirmed that the sons have a prior claim over the sons of a predeceased son. Therefore, the court concluded that the original Plaintiffs, being the sons of the predeceased son of Rani Bala Dutt, had no right, title, or interest in her stridhana properties. The properties were inherited by Paresh Chandra Dutt, the surviving son of Rani Bala Dutt. 4. Plaintiffs' Interest in the Immovable Properties Listed in Schedule A: The court found that the properties at 26, Sitaram Ghosh Street and 31, College Row were not part of the joint family properties. The Plaintiffs were not entitled to any partition of these properties. The preliminary decree in respect of other properties, namely 8B, Nabin Pal Lane, 16, Beniatola Lane, and 17, Beniatola Lane, had already been drawn up, confirming the Plaintiffs' and Defendants' fifty percent shares. 5. Reliefs Entitled to the Parties: The court decided against the original Plaintiffs for the properties at 26, Sitaram Ghosh Street and 31, College Row. The properties were confirmed as stridhana of Rani Bala Dutt, inherited by Paresh Chandra Dutt. The court ordered the suit to be fixed for hearing on the report of the Partition Commissioner for the remaining properties and argument for passing the final judgment. Conclusion: The properties at 26, Sitaram Ghosh Street and 31, College Row were owned by Rani Bala Dutt as her stridhana property. The Plaintiffs had no right to these properties, and they were inherited by Paresh Chandra Dutt. The court fixed the suit for further hearing on the report of the Partition Commissioner regarding the other properties.
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