TMI Blog2023 (5) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he original Plaintiffs, of his predeceased son Suresh Chandra Dutt. Smt. Rani Bala Dutt died on 9th August, 1952 and she was governed by Dayabhaga School of Hindu Law. Baidya Nath Dutt, the original Plaintiff No.1 and one of the son of the predeceased son of Nani Gopal Dutt died on 1st October, 1985 intestate leaving behind him his wife Depti Rani Dutt, son Sumit Kumar Dutt and daughter Barnasree Dutt who were substituted later on. Paresh Chandra Dutt died on 09.04.1986. His legal heirs and successors were substituted in the suit as Defendants. The properties mentioned in Schedule A are joint properties. Paresh Chandra Dutt, since deceased used to act as manager of the joint properties and funds and had misapplied the income, as alleged. It is averred in the plaint that Paresh Chandra Dutt, since deceased used to claim the immovable properties located at 26, Sitaram Ghosh Street, Kolkata and 31, College Row, Kolkata as properties of her mother and for that reason he inherited such properties from her mother to the exclusion of the original Plaintiffs. It is the case of the original Plaintiffs that the said properties were purchased by Nani Gopal Dutt in benami of Rani Bala. Real ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. On her death the original Defendant inherited two properties, namely, premises no. 26, Sitaram Ghosh Street, Calcutta and 31, College Row, Calcutta as her only son and legal heir to the exclusion of the original Plaintiffs. It is the contention of the written statement that on death of Nani Gopal Dutt the Plaintiffs and the original Defendant became his legal heirs and successors. It was further stated in the written statement that the original Plaintiffs and the original Defendant were joint owners of the property located at premises no. 8B, Nabin Pal Lane along with 250 shares of United Bank of India and some utensils and furniture. It was denied that Nani Gopal Dutt left a sum of Rs.1,00,000/-. The original Defendant in terms of her registered deed of gift dated 01.02.1964 transferred to his sons, namely, Defendant Nos. 2 to 6 of his right, title and interest in respect of premises no. 16, Beniatola Lane, Calcutta and 17, Beniatola Lane, Calcutta by registered deed of gift and have seized to any proprietary interests therein. As a result of such transfer the Plaintiff and the original Defendant jointly owned and only premises no. 8B, Nabin Pal Lane, Calcutta, 250 shares in Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... located at 26, Sitaram Ghosh Street and 31, College Row both in Calcutta, suggested issues were filed by the parties and issues were framed in terms of order dated 23rd June, 2016, which are as follows: 1. Whether premises no. 26, Sitaram Ghosh Street, Calcutta and 31, College Row, Calcutta are joint properties of the Plaintiffs and the Defendants? 2. Do the Plaintiffs have any interest in the immovable properties, particulars of which have been given in part II of Schedule A to the plaint? 3. To what relief, if any, which the parties entitled to? However, at the time of argument it was felt necessary to frame another issue namely: i) Whether Nani Gopal Dutt was the actual owner of the properties located at 26, Sitaram Ghosh Street, Calcutta and 31, College Row, Calcutta and Rani Bala Dutt was the benamder? ii) Whether 26, Sitaram Ghosh Street, Calcutta and 31, College Row, Calcutta were purchased by Rani Bala Dutt out of her stridhana property or out of consideration money provided by Nani Gopal Dutt? iii) Who are successors of Rani Bala Dutt in respect of 26, Sitaram Ghosh Street, Calcutta and 31, College Row, Calcutta, if the said properties were purchased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the Courts are usually guided by these circumstances: (1) the source fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Loknath Dutt one of the Plaintiffs deposed in this case and stated in examination-in-chief that the said properties were purchased by his grand-father Nani Gopal Dutt in benami, in the name of late Rani Bala Dutt and consideration money was provided by the said Nani Gopal Dutt. It was further stated in examination-in-chief that Nani Gopal Dutt was a successful business man and Ran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bala Dutt had no stridhana property out of which he could have purchased the property. 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. He indicated that the properties might have been purchased by Nani Gopal Dutt in the name of his wife to hide it from his brothers. In that case the properties might have been purchased for the benefit of his wife Rani Bala Dutt as law prevailing at that material point of time was not enough to protect her interest. But no evidence was adduced. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cutta and 31, College Row, Calcutta. Ashim Kumar Dutt, son of the original Defendant Paresh Chandra Dutt stated in evidence that the properties were purchased by her grandmother Rani Bala Dutt out of stridhana. It is further stated by him that rents from the tenants in respect of the premises 26, Sitaram Ghosh Street was collected by Rani Bala Dutt through his father. Therefore, preponderance of evidences established that Rani Bala Dutt was the owner of the two premises namely 26, Sitaram Ghosh Street, Calcutta and 31, College Row, Calcutta. 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 was held by Three Judges Bench of the Supreme Court of India in Sitaji vs. Bijendra Narain Choudhary, AIR 1954 SC 601: There is no presumption that any particular property in the widow's hands is pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Here it is expressly declared, that the mother s goods are common to the son and unmarried daughter [Chapter IV, Section II, 7, Dayabhaga, Translation by H.T. Colebrooke] and further But for the cause above stated, the son and maiden daughter have a like right of succession. On failure of either of them, the goods belong to the other. [Chapter IV, Section II, 9, Dayabhaga, Translation by H.T. Colebrooke] Chapter IV Section II 25 expounds that what a woman receives at nuptial fire in certain forms of marriage like bramha, on death right to succession of such properties first devolve upon the maiden daughter; if there is none, then to the betrothed daughter; or for want of such, it goes to the married daughter including even a barren or widowed one; on failure of the daughters, it devolve on the son. In Prakash Chandra Mukherji vs. Nandarani Debi [ILR (1951) 1 Cal 581] Justice P.B. Mukherjee, referring to the original text of Dayabhaga observed: There is a fundamental difference in the course of devolution between the property of a Hindu male and the stridhana property of a Hindu female. The first principle of difference is that women are given prior right ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
