TMI Blog2020 (3) TMI 931X X X X Extracts X X X X X X X X Extracts X X X X ..... Court cannot re-appreciate the evidence on the factual aspect of motive of the parties to execute such deeds, accumulation of consideration price and payment of the same and other relevant factors necessary to hold a transaction Benami or not. Suffice it to say that the learned Trial Judge in great detail held that though the purported deeds of sale were executed on 11th June, 1957, all along the said deeds were in custody of the vendor. The suit property was recorded in the record of Kanchrapara Municipality in the name of the vendor. The vendor used to collect rent from the tenants. The electricity in the suit property stood in the name of the vendor. The vendor performed all acts incidental to ownership of the suit property in spite of execution of the said two deeds of sale dated 11th June, 1957. All such factual circumstances are recorded by me only to show that the learned Trial Judge had dealt with the issues of fact raised by the respondents and again such finding, the respondents have not filed any cross-objection before the learned First Appellate Court. The plaintiffs filed the suit for declaration that the deeds of sale dated 11th June, 1957 are Benami transactio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s daughter of the predecessor-in-interest of the plaintiffs. They were originally residing in Burma. Sometimes in 1950 Nibaran Chandra Gupta with his family members came to India and started residing in the suit property. He used to maintain his livelihood by carrying on some business. The brother of Nibaran Chandra Gupta namely Basanta Kumar Gupta and his wife, the principal defendant with other family members subsequently came to India from Burma. After death of Nibaran Chandra in the year 1957, his widow became apprehensive that the possible debtors of the said Nibaran Chandra might grab the suit property as creditor. So, she consulted her well wishers and decided to execute registered deeds of sale in favour of Smt. Maya Gupta to protect the suit property. Accordingly, on 11th June, 1957 the widow of Nibaran Chandra executed and registered two deeds of sale in respect of the suit property in favour of Maya Gupta. However, the said two deeds were out and out Benami transactions. No consideration money was paid by the purchaser to the vendor. All along the deeds of sale were in custody of the vendor, i.e., the widow of Nibaran Chandra. She all along paid revenue taxes in favour o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the widow of Nibaran Chandra flatly refused to hand over the said deeds. So far as the Ekrarnama is concerned, specific case of the defendant No.1 is that Kusum Kumari Devi obtained some signatures on blank papers of the defendant No.1 stating her that her signature on blank papers are required for the purpose of mutating her name in the local municipality. Subsequently the said signed blank papers were converted to an Ekrarnama. The defendant No.1 never executed any Ekrarnama voluntarily in favour of the plaintiffs as alleged by them. According to the defendant No.1 the ownership of the property was transferred in favour of her by executing two Kobalas dated 11th June, 1957. After a long lapse of about 13 years, the plaintiff cannot claim that the said transactions were Benami transactions and accordingly, she prayed for dismissal of the suit. On the basis of the above pleadings, the learned trial Judge framed as many as seven issues. Parties led evidence in support of their respective cases and ultimately on the basis of evidence on record, both oral and documentary as well as submission made by the learned advocates for the parties, the learned trial Judge decreed the suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing. Are the Kobalas dated 11.06.1957 in respect of the suit property sham Benami transaction? According to Mr. Debasis Roy, learned advocate for the appellants who is ably assisted by Mr. Sibasis Ghosh, learned advocate, issue No.4 is the material issue which was discussed at length by the trial Judge and the issue was answered in favour of the plaintiffs. The defendant/respondent did not agitate the said issue. In the first appeal no cross-appeal or cross-objection was also filed by the respondent challenging the finding of the said issue. Therefore, at this stage the respondent cannot challenge the factual finding of the learned trial Court in respect of the finding that the said two kobalas are Benami transactions. Only the issue for which the First Appeal was allowed and the judgment and decree of the learned trial Judge was set aside is that in view of Section 4 (1) of the Benami Transaction (Prohibition) Act, 1988, the suit instituted in the year 1970 is not maintainable. While arriving at such decision, the learned Judge in First Appellate Court relied on the decision of this Court in the case of Urmila Bala Dasi (supra). It was held by the Division Bench o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nter alia that the suit was not maintainable cannot be sustained in view of the decisions of the Hon ble Supreme Court as quoted above and accordingly, the instant appeal should be allowed setting aside the judgment passed by the First Appellate Court. Mr.Piush Chatturvedi, learned Advocate on behalf of the respondents, on the other hand submits that specific case of the respondents was that after the death of Nibaran Chandra Gupta, his widow for herself and on behalf of her minor children transferred the suit property in favour of Maya Gupta, predecessor-in-interest of the present respondents by executing two deeds of sale dated 11th June, 1957. Both the deeds were duly registered in the recital of both the deeds. It was specifically stated that after the death of Nibaran Chandra Gupta, his widow was facing financial hardship to maintain her family and also her children. Therefore, she was in need of money and Maya Gupta, agreed to purchase the suit property at a consideration price of ₹ 12,000/-. Therefore, the recital of the said two deeds do not support the case of the appellants to the effect that Kusum Kumari Gupta, the vendor of Maya was comprehensive of the cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstance or consequence, or academic merely. It was further held in the said report that the High Court is not bound to confine itself to deal in only with the question initially formulated by it as substantial question of law. High Court may hear the appeal on any other such questions assailing as it is satisfied that the case involves the question and records its reasons for such satisfaction. The principal laid down in Santosh Hazari (supra) reiterates the ageold precedent laid down in (i) Khitish Chandra Purkait vs. Santosh Kumar Purkait (1997) 5 SCC 438; (ii) Panchugopal Barua Vs. Umesh Chandra Goswami (1997) 4 SCC 413; (iii) Kondiba Dagadu Kadam Vs. Savitkibai Gujar Sopan (1999) 3 SCC 722. In this regard I may be permitted to add that Sub-section 5 of Section 100 gives the Court who hears a second appeal, the power to formulate any other substantial questions of law, not formulated at the time of admission of the appeal, if it is satisfied that the case involves such questions. On this score, Mr. Chatturvedi frankly admits that determination of circumstances to hold if a transaction is a Benami transaction or not are questions of fact. In sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pta was executed in the year 1957 and the appellants filed the suit in 1970. In support of his contention, Mr. Chatturvedi refers to Article 58 of the Limitation Act where the period of limitation to obtain a declaration is three years from the date when the right to sue is first accrues. Referring to a decision of the Hon ble Supreme Court in Binapani Paul vs. Pratima Ghosh Ors reported in (2007) 6 SCC 100 , Mr. Chatturvedi submits that purchase of property by wife out of her streedhan property cannot be said to be a Benami transaction. Source of money, although a relevant consideration, is not a determinative of the question as to whether a transaction is Benami transaction or not. The original defendant stated in her evidence that while she was returning from Burma, she brought ₹ 4,000/- with her and her uncle gave a sum of ₹ 8,000/- to purchase the suit property. The learned Trial Judge disbelieved the said evidence without assigning any reason. The learned First Appellate Court did not reappreciate the evidence on this score. Therefore, the judgement of the First Appellate Court should be sent back on remand for consideration of the circumstances dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as if he had preferred a separate appeal.-(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree [but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellant Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow. [Explanation.- A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file crossobjection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.] (2) Form of objection and provisions applicable thereto.- Such cross-objection shall be in the form of a memorandum, and the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ringe that right by the defendant should happen. So far as the right of the plaintiff is not infringed or there is no positive and overt act on the part of the defendant to infringe the right of the plaintiff, there would not be accrual of the right to sue. In the instant case, it is specifically pleaded by the plaintiffs/appellants that the original defendant Smt. Maya Gupta made an application in the local Municipality in the year 1970 to mutate her name in respect of the suit property. The said application was rejected by the Municipality on 22nd January, 1970. Immediately thereafter, the plaintiffs filed the suit. Thus, the Trial Court correctly held that right of the plaintiff to sue accrued only when the defendant tried to infringe the plaintiffs title over the suit property on the basis of the said two deeds. I have already held that this Court cannot re-appreciate the evidence on the factual aspect of motive of the parties to execute such deeds, accumulation of consideration price and payment of the same and other relevant factors necessary to hold a transaction Benami or not. Suffice it to say that the learned Trial Judge in great detail held that though the purport ..... X X X X Extracts X X X X X X X X Extracts X X X X
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