Prabin Roy vs Pratap Roy and Others

This Second Appeal is at the instance of a plaintiff in a suit for declaration and permanent injunction and this appeal is preferred against a judgment of affirmance.

The plaintiff-appellant filed a suit thereby praying for declaration that a deed of settlement executed by the mother of the parties in favour of the defendant was illegal, void and inoperative as the mother was not the real owner of the property but was merely a Benamdar. According to the plaintiff, the said deed of settlement executed by mother conferring right over the suit property in favour of the defendants, three of her sons was illegal, and by virtue of that deed the plaintiffs title in the property was in no way affected. According to the plaintiff, the father of the parties was the real owner who purchased the property in the year 1957 in the benam of his wife, and, as such, the plaintiff has the right, title and interest over the suit property.

The suit was contested by the defendants by filing written statement thereby denying the material allegations made in the plaint and the specific defence taken by the defendants was that the mother was the real owner of the property and not the benamdar and, in fact, the mother during her life time transferred a part of the property in favour of the outsider. It was further contended, on behalf of the defendants, that the suit itself was not maintainable in the absence of other brothers and sisters who are left out in this proceeding.

In spite of the aforesaid defence taken by the defendant, the plaintiff did not endeavour to add other brothers and sisters in the proceeding and proceeded with the trial of the suit.

The learned Trial Judge, on consideration of the materials on record, held that the mother was the real owner of the property and in her capacity as such, she in the past transferred one decimal of land to an outsider and that sale deed was never challenged by any of the parties. The learned Trial Judge, therefore, dismissed the suit holding that the plaintiff had no right, title and interest over the property after the execution of the deed of transfer in favour of the defendants.

Being dissatisfied, the plaintiff preferred an appeal before the learned First Appellate Court below and at the time of final hearing of the appeal, the plaintiff came up with two applications - one for addition of other brothers and sisters, who were initially not made parties, and the other, for amendment of the plaint thereby praying for incorporating the fact that the transfer deed executed by the mother in favour of the defendants was a forged one or otherwise vitiated by fraud etc.

The learned First Appellate Court below did not permit the plaintiff to add other brothers and sisters in the proceeding at the appellate stage and at the same time, did not allow the application for amendment of the plaint on the ground that the plaintiff initially having challenged the authority of the mother to execute any such deed as owner cannot be subsequently permitted to challenge the said deed on the ground that the said deed was vitiated by forgery etc.

Being dissatisfied, the plaintiff has come up with the present Second Appeal.

After hearing Mr. Chatterjee, the learned Advocate appearing on behalf of the appellant and after going through the materials on record, we are at one with the learned Courts below that in this case the plaintiff could not prove Benami as alleged in the plaint. No motive of such Benami was established, and it appears that the mother during her life time mutated her name in the local Municipality and also transferred a part of the property in favour of third party. It was further pointed out that mere fact that the father of the parties paid some amount of consideration would not ipso facto establish the fact of Benami unless it was proved that the father retained full control over the property and the property was purchased really for his own benefit.

As regards the application for addition of party; we agree with the learned First Appellate Court below that in spite of specific objection taken by the defendant in the written statement that the suit could not be proceeded in the absence of other heirs of the mother, the plaintiff, having decided not to add those persons as the parties thereto, should not be permitted to come up with an application at the appellate stage for the purpose of frustrating the effect of the full-fledged trial. We also agree with the learned First Appellate Court below that in the initial stage the plaintiff having asserted that the mother was not even the owner of the property, after losing the suit on that question, now cannot come up with an application for amendment for the purpose of adjudicating whether the transfer deed executed by the mother was vitiated by fraud or forgery when such plea was available from the very beginning.

On consideration of entire materials on record, we are of the view that the learned Court of Appeal below, in the facts of the present case, rightly decided the question of Benami against the plaintiff and at the same time, was quite justified in refusing the prayer for amendment of plaint and addition of parties at the first appellate stage, this appeal is dismissed under Order 41 Rule 11 of the Code.

Urgent xerox certified copy of this order, if applied for, be given to the parties within a week.