Rajan Kumar Koley and Others vs Sudhanya Chandra Koley and Others

Amulya Kumar Nandi, J.—A short and interesting point has come up for consideration in the Second Appeal. The appellants have come against a concurrent decision of the two Courts below. The plaintiffs in the suit had alleged that the property which originally belonged to Puma and his brothers was sold in auction in Rent Execution Case No. 703 of 1937. The plaintiff Purna and defendant No. 1, Dhruba and the other son of Anukul, Kalipada by name purchased the property in the benami of one Kalipada Patra. On these allegations the plaintiffs succeeded in the Suit and also in the First Appeal.

Mr. Mukherjee has challenged both the. judgments on the ground that the plea of benami is untenable in view of Section 4 of Benami Transactions (Prohibition) Act of 1988 hereinafter called the Act. It is contended that the plaintiffs cannot claim to have acquired any interest in the property by virtue of purchase of the same in the benami of Kalipada Patra. Mr. Banerjee appearing for the respondents contends that the Court is not entitled to entertain such plea since the whole appeal has abated. There is no controversy that the plaintiffs-respondents Tarapada and Guiram died on 27-12-1983 and 13-2-1982 respectively. The appellants filed a petition for setting aside abatement on 14-6-1988- An application u/s 5 of the Limitation Act was also filed on 10-3-1989. The appellants sought to set aside the abatement by virtue of these two petitions. J. N. Hore, J. by order dated 11-4-1989 dismissed the said application.

The question arises as to whether the court can still entertain the plea of the appellants as to benami in spite of this unsuccessful attempt to set aside abatement. It cannot be disputed that the decrees passed by the two courts below are joint decrees. Unless the decrees are severable the surviving, appellants cannot proceed- Mr. Mukherjee very much relies upon the decision in The State of Punjab Vs. Nathu Ram, to contend that the court has to decide as to whether the entire appeal abates, and until such decision is made the action must be deemed to have been pending in this court. He means to say that an action continues until the judgment is delivered. According to Mr. Mukherjee, the court can very well enter into the question of benami until the court finally finds that the entire appeal has abated. I have already found that the entire appeal abates since a decree is a joint decree. If the entire appeal abates and there is no pending proceeding before this court no decision can be invited as to whether the decree passed by the two courts below is void on account of the mischief under the Act. In other words, the court cannot be invited to adjudicate as to whether the decree is void in view of Section 4 of the Benami Transactions (Prohibition) Act, 1988. Unless an appeal is pending before this court a mere adjudication as to whether the entire appeal abates or otherwise on account of severence of the decree or otherwise does not afford an opportunity to the court to enter into the question as to whether Section 4 of the Act hits the suit. In my opinion, therefore, inspite of pendency of an action in the strict sense of the term or rather in the narrower sense of the term, this court cannot enter into the merit to decide as to whether the suit or as a matter of that the appeal comes within the mischief of the Act.

Mr. Mukherjee then relies upon another decision in Kiran Singh and Others Vs. Chaman Paswan and Others, . It is urged that in this action the appellants can very well challenge the decree since the Supreme Court opined that a void decree can be challenged at any time and in any proceeding. The distinction that we cannot afford to overlook is that there is no proceeding pending before this court since the appeal abates as a whole. Therefore, the appellants cannot urge that the decree is void while inviting the court to decide as to whether the entire appeal abates consequent upon the death of Tarapada and Guiram. In my opinion, this court is not entitled to enter that question of benami while the court is deciding the question as to whether the appeal abates as a whole on the death of Tarapada and Guiram. I am unable to subscribe the view expressed by Mr. Mukherjee. If the decree is void he can challenge in any other proceeding: but not in this appeal. In that view of the matter, the plea raised by Mr. Mukherjee fails.

Mr. Mukherjee lastly relies upon the decision in Urmila Bala v. Probodh Chandra reported in 1989 (1) CHN 179. The Division Bench of this court has opined that on account of the provision in the Benami Transactions (Prohibition) Act, 1988, a right cannot be enforced by an action. In so opining the court has held that the claim of issuance of a writ of delivery of possession is also an action within the meaning of the Act. In the instant case, the respondents do not propose to enforce their rights by means of any action. If by means of any action such any right is sought to be enforced the Act will operate definitely as a bar. Since the respondents in the appeal, which has since abated, did not propose to enforce any right by means of any action, the argument advanced by Mr. Mukherjee is of no avail.

In view of my foregoing reasons, I am unable to interfere with the judgment of the two courts below inspite of the fact that the appellants had a very good case to argue in Second Appeal. In the result the appeal fails.

I make no order as to costs.

Let a copy of this judgment go down to the court below forthwith together with lower court record.