JUDGMENT
1. The present Second appeal has been instituted by the defendant-appellant.
2. For adjudication of this appeal, the essential facts are as under. Nathu plaintiff filed, original suit No.. 24/69 in the Court of Civil Judge, Saharanpur against Chhota, Santa, Shyamlai and Smt. Ramo Devi. In the suit the prayer was for partition of ancestral property and for possession by metes and bounds after the declaration of share.
3. Nathu plaintiff, Chhota, Sant Lal and Shyam Lal defendants are sons of Sadi and thus they are real brothers and Smt. Ramo Devi is the wife of Sadi. The ancestral property was described at the foot of the plaint.
4. The defendant No. 1 Chhota filed written statement to the said suit. In the written statement the defendant alleged that defendant No. I had separated from his father 39-40 years ago, and by taking a separate tenanted house from Indrasen began to do his business separately from his father and began to reside separately from his brothers and the defendant by dint of dedication, hardwork and activities purchased the property described in Schedule B of the plaint from Purshottam Das etc. defendants 2 and 3 and got constructed one Storey house through their own finance. The contention of the plaintiff that the sale deed in respect of Schedule B property of the plaint was got in the name of defendant due to some other reason and the property is ancestral, is totally false. The father of defendant No. 1 and his other brothers have not invested any amount in the disputed house. In this connection and also with reference to other properties, defendant has given detailed description in his written statement.
5. Defendant No. 1 also alleged that on account of the progress attained by defendant No. 1 the plaintiff and defendants 2 and 3 became zealous and due to that defandants 2 and 3 got instituted by the plaintiff the suit for partition based on wrong facts in respect of the disputed property.
6. The defendants 2 and 3 have supported the allegations made in the plaint. The defendant No. 4 who is the sister of the four brothers filed written statement supporting stand taken in the plaint.
7. Upon the pleadings of the parties, the trial Court, framed issues, out of those issues, the reference of the following issues is sufficient for the decision of the present appeal.
Issue No. 1 : Whether the land of the three houses described in the plaint had been purchased by funds provided by the joint family ?
Issue No. 2: Whether the land of the house described in schedules "Ba" and "Ga" of plaint has been purchased 'Benami' in the name of defendant No. 1 ?
Issue No. 3: Whether the three houses described in the plaint were constructed with the aid of joint family funds?
Issue No. 7 : Whether the defendant No. 1 had already separated from the joint family and his income was personal income?
Issue No. 11: Whether the house described in Schedule B of the plaint had been pur-chased by defendants 1 to 3 from their own funds and whether on the aforesaid land the defendants 1 to 3 got construction made through their own income ?
The trial Court decided issues 1, 3, 7, and 11 together and as on the basis of the evaluation of the evidence of the parties recorded the finding of fact, that from the evidence of the parties it is proved that defendant No. 1 was living separately from the joint family from the period prior to the execution of sale deed of 1946, in his favour, and also found this fact proved that defendants 2 and 3 Santa and Shyam Lal were also living separately and also reached the conclusion that the sources of income of defendant No. 1, defendants 2, and 3 were separate and income was also separate, On the basis of the above findings, the trial Court held that taking into consideration the entire facts and circumstances of the case, the plaintiff has failed to prove that the property of schedules B and Ga of the plaint was purchased from the funds of the joint family business, also the conclusion was recorded that by virtue of the sale deed dated 8-12-1954 the property described in schedule of the plaint the defendants 2 and 3 transferred by sale their share in favour of defendant No. 1 and the defendant No. 1 sold his share in the property described in schedule 'B' 'Ga' of the plaint in favour of defendants, 2 and 3 and also held it proved that the defendants 1 to 3 were treating the disputed property as their own property and the plaintiff and Sadi, the father of the parties did not raise any objection in this regard.
8. Aggrieved by the said judgment the plaintiff filed civil appeal No. 262 of 1977 in the Court of District Judge, Saharanpur.
9. Fourth Additional District Judge Saharanpur vide his judgment dated 23-11-1979 allowed the appeal of plaintiff and set aside the judgment of trial Court dated 4th August 1977 and decreed the suit for partition and separate possession with respect to all the three properties and declared the share of plaintiff to be 6/25 in the disputed property. Aggrieved by, the aforesaid judgment, the defendant Natthu filed the present second appeal in this Court.
10. I have heard at length Sri A.D. Prabhakar learned counsel for the appellant in support of this appeal.
11. The learned counsel for the appellant mainly raised three points in support of his appeal. These three points are substantial questions of law which arise for determination in this appeal.
1. That the finding of fact recorded by the lower appellate Court are based on wrong interpretation of Exhibit A 13. According to learned counsel for the appellant on reading Exhibit A 13 with reference to Ex A 11 and A 12 a clear conclusion follows that private partition of the properties had already taken place between the parties. The lower appellate Court by wrongly interpreting the important document Exhibit 13 has arrived at findings which are against law.
2. The lower appellate Court has recorded in its judgment the finding that it is admitted to parties that they were residing jointly and they were joint in mess, which is contrary to evidence on record. The learned counsel for this appellant in this connection referred to paras 9, 10, 10B and 11 of the Written Statement and submitted that in the said written statement the defendant clearly mentioned that the disputed property had already been partitioned and on the basis of private partition itself Ex-A 11 and Ex-A 12 were executed between defendant No. 1 and defendants 2 and 3 and the aforesaid sale deeds were only in furtherance of the process of private partition. The lower appellate Court has in this connection by ignoring the evidence and the pleadings has recorded wrong finding of fact in its judgment which are contrary to law. This is also the submission of the learned counsel for the appellant that defendant No. 1 Chhota has not admitted in his statement that the entire family was living jointly and they had joint mess, rather he has clearly stated that he had separated from the family during the lifetime of his father and the disputed property is his self acquired property, the finding to the contrary is against evidence on record.
3. The third point raised by the learned counsel that under Benami Transaction Prohibition Act it has been provided that the property purchased in the name of particular person will be deemed to be owned by that person.
12. The Hon'ble Supreme Court in its judgment Mithilesh Kumari v. Prem Bihari Khare, AIR 1989 SC 1247 has laid down that the said provision will also apply to pending proceedings. On the date of the operation of this Act the present appeal was pending and it is an established principle of law that appeal is continuation of suit and in reality the pendency of appeal tantamounts to pendency of suit, and on this basis argument was advanced that according to the above provisions the presumption is in favour of defendant that the property which was purchased in the name of defendant No. 1 is owned by defendant No. 1 and on the aforesaid footing raised the argument that under the provision of the aforesaid Act this assertion of the plaintiff is not fit to be accepted that the disputed land which had been purchased in the name of defendants 1, 2 and 3 was merely a Benami transfer.
13. In this very connection, the learned counsel for the appellant also raised the point that family arrangement is a process of partition and if between the parties by virtue of family arrangement, separate property has been partitioned, then that family settlement will be deemed to be final between the parties. In support of this point, the learned counsel for the appellant cited the case of Hon'ble Supreme Court Kali v. Deputy Director Consolidation, AIR 1976 SC 807.
14. I have perused the judgment of the lower appellate Court in the light of the above argument and perused the relevant documents specially Ex. A 11, A 12 and A 13.
15. By Ex. A 11 the defendant No. 1 in whose name the property solely stood, executed sale deed in respect thereof in the name of defendants 2 and 3 for a consideration of Rs.2000/- on 8-12-1954.
16. The property described in Schedule A of the plaint had been purchased by Sadi in the year 1926 in his own name and in the name of his wife. On 4-1-1946 the property described in schedule 'Ba' of the plaint was purchased in the name of Santa and Shyam Lal on 4-1-1946 and the property mentioned in schedule 'Ga' of the plaint, over which construction has also been raised was purchased in the name of Chhota Singh defendant No. 1.
17. In the year 1954 there arose dispute between the brothers regarding ancestral property as a result of which on the basis of private settlement two sale deeds were executed in favour of brothers. By Ex. All Chhota in whose name property had been purchased, sold the same to two brothers for Rs. 2000/- in lieu of that sale, other brothers and father on the same date sold other properties of the family for merely Rs. 2000/-
in the name of Chhota. The contention of defendant Chhota is that their father had grown old and he wanted to effect a partition of property amongst brothers in his life-time, with this intention he effected the partition of family property through the agency of sale inter se and did not take his own share in the said property. In a similar way Natthu who was the eldest of all the brothers and was a widower having no children, hence he did not accept any share for himself and sold the ancestral property in favour of Natthu, through the agency of the aforesaid sale deed there had been effected a family settlement through the agency of sale deed and partition had been effected in accordance with the said family settlement. The argument of the learned counsel for the appellants is that later on account of the accentuation of fame and property of defendant No. 1 the other brothers became jealous and the present suit for partition was filed. In connection with the above argument in the year 1964, the defendants 2 and 3 on the strength of continued private partition of year 54, sold same share to Indra Deo Gupta, the said sale deed has been proved as Ex A 13. In exhibit A 13, the defendants 2 and 3 have admitted that they are in possession in respect to disputed property since the year 1954 on the basis of sale deed. The sale deed of 1954 executed by Chhota in favour of defendants 2 and 3 which was written on the same day deserve to be read in conjunction with other sale deeds so that it may become clear that the said sale deed in favour of defendants 2 and 3 was executed on the basis of private partition. The lower appellate Court has not considered the Exhibit A 13 in the right perspective consequently wrong finding of fact has been recorded.
18. The lower appellate Court has held that Ex. A 11 and A 12 were merely formal documents and were benami transfer and in this very sequence by considering such circumstances recorded a conclusion that even after the aforesaid partition all the members of the family resides jointly, where the father Sadi and brother Natthu were also included. On this basis the finding so arrived held that the said sale deed is Benami and was executed to save their property from the clutches of the creditors.
19. In connection with the above factual matrix, it is pertinent to consider the pro visions of Benami Transaction Prohibition Act which will be for sake of convenience will be hereafter referred to as the "Act" and also the judgment of Hon'ble Supreme Court in the case of "Mithilesh Kumari", AIR 1989 SC 1247. It is clear from the above facts that the plaintiff had instituted the suit on the basis that the sale deed executed in favour of defendant No. 1 was a Benami transaction and the suit was instituted by treating the property as joint, on this basis. During the pendency of this appeal itself, the said Act became operative. In the case of Mithilesh Kumari aforesaid Hon'ble Supreme Court has laid down that under the provisions of the said Act, the real owner has lost the right to get back the property from the person in whose name the property had been purchased Benami and in the very context it also has been need that the said Act is retrospective in operation and even during the pendency of appeal the dispute between the parties has to be decided in accordance with the provisions of the Act.
20. The relevant portion of the aforesaid judgment is as under:
23. When the law nullifies the defences available to the real owner in recovering the Benami Property from the BeRamidar the law must apply, irrespective of the time of the Benami transactions. The expression "shall" lie in Section 4(1) and "shall be allowed" in Section 4(2) are prospective and shall apply to present future stages and future suits, claims or actions only. This leads us to the question whether there was a present suit between the plaintiff respondents and the. defendant appellant on the date of the law coming into force. We have noted the dates of filing the suit and judgments of the Courts below. On the date of the Section 4 of the Act coming into force, that is, 19th May 1988 this appeal was pending and of course, is still pending can the suit itself be said to be pending ?
24. The word "sued" covers the entire proceeding in an action. "In Amarjit Kaur v. Pritam Singh, (1975) 1 SCR 605 : (AIR 1974 SC 2068} it has been held that an appeal is a rehearing and in moulding the relief to be granted in a case on appeal, the appellate Court is entitled to take into account even facts and events which have come into existence after the passing of the decree appealed against."
21. It is obvious from the above mentioned judgment that the suit of the plaintiff is not maintainable after the coming into force of the Act. Even if for the sake of arguments it is presumed that the sale deed executed in favour of defendant No. 1 was Banami even then after the coming into force of the provisions of the said Act, the plaintiff can not be granted relief on this basis in respect thereof. Accordingly the appeal is allowed, the plaintiff's suit is dismissed parties will bear their own costs of appeal and the suit.
22. Appeal allowed.