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TaxTMI 
TaxTMI 
2023 (5) TMI 349
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....a common ancestor of the parties and was the sole and absolute owner of various movable and immovable properties described in Schedule A of the plaint. Out of various immovable properties premises no. 8B, Nabin Pal Lane, Calcutta was acquired by the said Nani Gopal Dutt, since deceased, as a result of the partition between himself and his brothers. Properties located at premises no. 26, Sitaram Ghosh Street, Calcutta as well as 31, College Row, Calcutta were acquired by the said Nani Gopal Dutt out of his own money but in the benami of his wife Smt. Rani Bala Dutt, since deceased. The said Nani Gopal Dutt died intestate in October 1951, leaving behind him his surviving son Paresh Chandra Dutt, the original Defendant, his widow Rani Bala Dutt and three grandsons, being the 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 substi....
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...., Nabin Pal Lane and 16 and 17 Beniatola Lane, Calcutta as well as shares of United Bank of India a sum of Rs. 10,000/- and some furniture and utensils. It is also contended in the written statement that Nani Gopal Dutt had no right, title or interest in the properties located at Premises No. 26, Sitaram Ghosh Street, Calcutta and 31, College Row, Calcutta. It is the case of the Defendants that Rani Bala Dutt, mother of the original Defendant purchased the premises no. 26, Sitaram Ghosh Street on 21stJune, 1940 out of her stridhana properties. Similarly Rani Bala Dutt purchased on 28th September, 1943 the premises no. 31, College Row, Calcutta for lawful consideration out of her stridhana money. She was sole and absolute owner of those two properties. Rani Bala Dutt died intestate on 9th August, 1952. 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 ....
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....in respect of premises no. 26, Sitaram Ghosh Street, Calcutta and 31, College Row, Calcutta upholding the rest, in view of ratio of 1995 (2) SCC 632 and 1994 (4) SCC 572. The suit was remanded to be decided afresh by the Trial Court in respect of these two properties. Liberty was given to the parties to adduce evidence. It was further ordered that so far as the report which has already been filed by the Learned Commissioner of Partition as regards the other properties shall be dealt with by the Learned Trial Judge in accordance with law. Original Plaintiff was not interested to proceed with the suit. In terms of order dated 9th September, 2019, Defendant Nos. 1, 3, 5 and 6 were transposed as Plaintiffs to proceed with the suit. Since the suit was to be heard afresh in respect of the properties 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....
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....ounsel Mr. Paul Chowdhury vehemently argued that when the original Plaintiffs asserted that the property was purchased benami burden of proof lies on him to prove that. He referred to various decisions namely 2010(1) CHN, 2014(1) Supreme Today, Page 1, 2015(7) Supreme Today Page 434 to substantiate his argument. 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 Vs. Bibi Hazra [(1974) 1 Supreme Court Cases 3] speaking for the Bench, Justice R. S. Sarkaria succinctly, laid down the principle of law: "6. 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. This burden has to be strictly discharged by adducing legal evidence of a definite character 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 ....
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....e person who has contributed the purchase money and (4) the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motives governing their action in bringing about the transaction and their subsequent conduct, etc." In Valliammal Vs. Subramaniam 23 (2004) 7 SCC 233, this issue was against considered by the Supreme Court India. Six parameters were discussed referring to Jaydayal Poddar's Case (supra) it was observed that it is well-settled that the intention of the parties is the essence of benami transaction and money must have been provided by the party invoking the doctrine of benami. These principles of law, so laid down, was again reiterated and discussed in Binapani Paul vs. Pratima Ghosh and Ors. [(2007) 6 Supreme Court Cases 100] referring to Thakur Bhim Singh's Case (supra) 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....
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....se 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. A presumption which impressed him and which he reiterated all though out is that Rani Bala Dutt had no separate income for which consideration money must have been provided by her husband Nani Gopal Dutt. Nowhere, it is stated that Rani 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 th....
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....question was advanced by Nani Gopal Dutt which the original Plaintiffs failed to establish. P.W.1 was an infant at the material point of time of the purchase for which he could not state anything on the circumstances prevailing. He stated that no fund was transferred by Nani Gopal Dutt to Rani Bala Dutt for purchase of the said two properties. It might also be a situation where Rani Bala Dutt purchased the properties out of money given to her as gift. No evidence is there. Even if it is assumed that fund was advanced by Nani Gopal Dutt for purchase of the properties, in view of observation of the Judicial Committee, as aforesaid, the same properties should be treated as stridhana properties. 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. 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,....
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.... the Courts as stridhana in tracts governed by the Milakshara, while, in provinces where the Influence of Jimutavaliana prevails, the Courts would exclude it from the category of stridhana. It is stated by Sir Mulla that succession to a woman's stridhana varies according to the fact whether she was married or unmarried and whether the marriage was in an approved or unapproved form. It also varies according to the source from which stridhana came. Rules of descent differ in different schools but we are confined here with Dayabhaga School of succession. Rules of succession are discussed by both the authors with reference to the text of Dayabhaga. There are certain variations in the line of succession to different types of stridhana. In nutshell it was the rule that the son's right to stridhana properties of mother comes earlier in order of succession and is preferred to that of the sons of a predeceased son. "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 r....