TMI Blog2016 (9) TMI 1590X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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- -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- -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 statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmissive possession but the defendant did not comply with the said request. The said Title Suit was filed as such treating the defendant as a trespasser praying for eviction and recovery of khas possession. The defendant contested the suit by filing written statement before the learned trial court, admitting the marriage but it was the specific case of the defendant that the said property was purchased by the defendant himself from his own money and the money contributed by his companies and he is in possession of the suit property by paying incidental charges like municipal taxes, maintenance charges, common electricity charges etc. Thus, it was his claim that he is must in permissive possession. He further claimed that the property was purchased in the name of the plaintiff but not for her benefit but for the benefit of the defendant and his family members. It may be noted that the written statement was filed on 18th September, 1989. It was the further case of the defendant that the plaintiff shifted to U.K. and has been residing there. The defendant has denied that she is temporarily residing there (United Kingdom). It is also the specific case of the defendant that the plain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a claim to acquire title over a property. He further argued that Section 4(3)(b) of the said Act was also not considered. It has further been submitted by Mr. Chatterjee by taking me to page no.49 of the paper book as regards the substantial questions of law that this Court is to decide as to whether the claim of the defendant is barred in view of Section 4(2) of the Act of 1988. He further submitted that the story of fiduciary relationship was neither claimed by the defendant in the written statement and nor any evidence was adduced on that point. He further submitted that the defence of the defendant that he purchased the property in the name of his wife for his and the benefit of his family is barred under Section 4(2) of the said Act of 1988. He cited a Division Bench decision of this Court as reported in Cal L.T. 1997 (2) HC p.43 (Buddheswar Ghosh -vs- Ekkari Ghosh) wherein the Division Bench of this Court decided regarding the burden of proof in a case under the said Act of 1988 and the factors to be taken into consideration by the Courts to prove as to whether the said transaction was benami or not. He referred to paragraphs 3 and 5 of the said judgment. He also refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant is not legal possession. As to the term 'fiduciary relationship', learned Counsel submitted by taking me to Black's Legal Dictionary, 7th Edition, page no.640 to show that the relationship between the husband and the wife is not a 'fiduciary relationship'. On behalf of the defendant/respondent, it was submitted by Mr. Subir Sanyal, learned advocate, by taking me to Ext.1 and Ext.1A that there is mention in both the deeds that on which dates the consideration money was paid. He submitted that those deeds will reflect that payments were made on 15-01-1978, 02-01-1978 and 09-01-1979, thus, covering a period of one year. He further submitted that the plaintiff appellant got ₹ 73,821/- vide Exts.E1 and E2 from Tractel Tifor India (P) Ltd. He also took me to Ext.A1 to satisfy this Court that Debika got ₹ 36,800/- under the heading Salary . He further submitted that this Ext.A1 is computation of her taxable income for the relevant year. He further submitted that in the document, there is also mention that rental income of the plaintiff was to the tune of ₹ 45,000/-. Thus, he submitted that the argument of the plaintiff/appellant that actually ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Promoter and Managing Director of Tractel Tifor Company and also the founder member of Kanak Engineers Private Limited. He further submitted that both the companies being private limited companies, the word of this defendant was the last word. He took me to the evidence of DW1 to show that this defendant had 70% share in respect of Tractel Tifor and 78% share in respect of Kanak Engineers Private Limited and Mercury Breweries. Thus, through all these, Mr. Sanyal tried to convince this Court that actually the money came into the account of the plaintiff either from the personal account of the defendant or from the accounts of his companies and as such, he is the owner in respect of the suit flat. He further submitted that the fact that he is in possession of the property is not in dispute. Regarding such possession, he referred to the evidence of P.W.3 and the documents like Ext.G and H series. Regarding the substantial question of law, as formulated, Mr. Sanyal submitted that Section 4(3) of the Act of 1988 is enough to save him from the rigors of the said Act. He took me to that Sub-Section of the said Act, which runs thus: where the person in whose name the property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh vs. Sarwan Singh) wherein the Apex Court held that misreading or misinterpretation of a small portion of evidence by the First Appellate Court was held not sufficient for setting aside findings recorded by the First Appellate Court on the basis of appreciation of entire evidence on record. In reply it was submitted by Mr. Chatterjee that the decision of Mithiles Kumari (supra) is not a good law in view of the decision of the Apex Court as passed in Raja Gopal Reddy (supra). He further contended that the story of fiduciary relationship was not pleaded at all in the written statement filed by the respondent and as such he cannot take the advantage of Section 4(3)(b) of the Act, 1988. Regarding the concurrent finding of the courts below he submitted that wrong appreciation or non-appreciation of evidence will make the finding perverse. He further contended that the finding of the courts below must be treated as perverse in view of the fact that important points were not taken into consideration by both the courts below. He further submitted that even in the trial court Section 4 of the Act, 1988 was practically touched but not considered and that the First Appellate Court did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any right in respect of any property held benami 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.' The defendant has admitted in the Written Statement that he purchased the property in the name of his wife out of money paid by his company and such purchase was made for his benefit and also for the benefits of his family members. Thus, he did not even say in the W.S that the property was purchased for the benefit of his. It is well settled that intention of parties is the essence of the benami transaction and money must have been provided by the party invoking the doctrine of benami 2007(6) SCC Page 100 (Binapani Paul vs Pratima Ghosh). As per the provisions of the Act of 1988 right to recover and/or resist recovery by the real owner against benami now stands extinguished. I rely upon the decision of the Patna High Court as reported in A.I.R 1997 Pat 156 (Smt. Sarojini Bala Dasi vs. Smt. Nirmala Devi). Benami transaction means where property is acquired in the name of one person but the purchase price is paid by another. The case before the floor of this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon the judgment of the Apex Court as reported in AIR 1977 SC 409 (Union of India -vs- Moksh Builders and Financiers Ltd. and Ors.) wherein the Apex Court held that an admission by a party is substantive evidence of the fact admitted and admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. I have already said that defendant admitted that the said transaction was benami and in view of such admission there is no question of any second thought that the deeds in questions were benami in nature. This court is of the opinion that the learned trial court did not discuss the matter in details how the suit was not barred under Section 4 of the said Act. The learned First Appellate Court did not consider the matter at all even though in the memo of first appeal that defence was taken by the appellant/plaintiff. The question now is whether for that reason the judgments of the courts below can be altered. The substantial question No.2 is regarding fiduciary relationship as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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- -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- -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, I 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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