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Sudhindra Coomar Vs. Monmohini Coomar and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberCivil Order No. 1710 of 1982
Judge
Reported in1983(2)CHN192,(1983)1CompLJ163(Cal),[1983]143ITR264(Cal)
ActsIncome Tax Act, 1961 - Section 281A and 281A(1); ;Arbitration Act, 1940 - Sections 32 and 33; ;Code of Civil Procedure (CPC) , 1908 - Section 66
AppellantSudhindra Coomar
RespondentMonmohini Coomar and ors.
Appellant AdvocateA.K. Banerjee, Adv.
Respondent AdvocateManindranath Ghosh, ;Saktinath Mukherjee and ;S. Dinda, Advs.
Excerpt:
- .....held in the name of the benamidar and, secondly, such a claim must be made by or on behalf of aperson claiming to be the real owner. in the facts of the present case there is considerable doubt in our mind as to whether the first of the aforesaid conditions is fulfilled. as indicated hereinbefore, according to the plaintiff both the immovable property and the businesses were held by his father who merely created a sham decree based on a collusive arbitration award. according to the plaintiff, the entire proceeding under the arbitration act was sham and collusive intended to have no effect other than throwing the properties beyond the clutches of the creditors and the i.t. dept.8. assuming, however, that the true effect of the decree on the award was to create a benami transaction as.....
Judgment:

Anil K. Sen, J.

1. This is a revisional application at the instance of the plaintiff and is directed against an order dated March 15, 1982, passed by the learned Subordinate Judge, 9th Court, Alipore, deciding two preliminary issues against the plaintiff. The plaintiff, who is one of the sons of Benoypada Kumar, filed the aforesaid suit for partition and accounts against his mother, defendant No. 1, and his other brothers and sisters, who were the other defendants. The subject-matter involved included several immovable properties and businesses. In claiming partition by inheritance from Benoy, the plaintiff pleaded that Benoy in his lifetime in order to defraud the creditors and the Income-tax Department caused a falseand collusive proceedings to be started under the Arbitration Act, in collusion with defendant No. 1. In that proceeding, the defendant No. 1 raised a sham dispute based on a sham claim and obtained a fictitious award and a decree passed thereon in Title Suit No. 87 of 1967. This decree covers premises No. 4, Loudon Street, and three businesses run under the name and style of M/s. B. Kumar & Company, M/s. Kumar Construction Company and M/s. India Floors. The plaintiff claimed that notwithstanding such a sham decree, Benoy, during his lifetime, continued to remain the owner of the said property and the businesses and on his death the plaintiff has inherited 1/6th share in them along with the other properties incorporated in the plaint schedule.

2. On a contest put forward by the contesting defendant, the court framed two issues as to whether the suit is barred under the provisions of Section 281A of the I.T. Act and Sections 32 and 33 of the Arbitration Act. These two issues having been heard as preliminary issues the learned subordinate judge has decided the issues against the plaintiff when he held that a part of the plaintiff's claim in respect of premises No. 4, Loudon Street, Calcutta, and the three businesses, namely, M/s. B. Kumar & Co., M/s. Kumar Construction Company and M/s. India Floors, stands barred both under the provisions of Section 281A of the I.T. Act and Sections 32 and 33 of the Arbitration Act. Feeling aggrieved, the plaintiff has challenged the said order in the present revisional application. The application is being heard upon notice to and upon contest by the contesting defendants.

3. Mr. Banerjee, appearing in support of this revisional application, has contended that the learned subordinate judge wholly misread the scope and effect of the material provisions of the I.T. Act and the Arbitration Act, in holding that the plaintiff's suit stands barred in part and as a result thereof the plaintiff stands non-suited to that extent.

4. Mr. Ghosh, appearing on behalf of the contesting defendants, supported the view taken by the learned subordinate judge. According to Mr. Ghosh, the plaintiff's claim in substance constitutes a declaration that premises No. 4, Loudon Street, and the three businesses referred to hereinbefore were held by Benoy during his lifetime in the benami of his wife, the defendant No. 1, and after his death by all his heirs including the plaintiff in a similar manner. Such a claim, according to Mr. Ghosh, comes squarely within the provision of Section 281A of the I.T. Act and the three conditions specified therein not having been fulfilled, the suit to that extent had been rightly held to be barred under the said provision.

5. We propose to deal with the two grounds on which the learned subordinate judge has held a part of the claim to be barred separately. Section 33 of the Arbitration Act, no doubt, provides that any person challenging the existence or validity of an arbitration agreementor an award or to have the effect of either determined shall apply to the court obviously under the said Act, and the court shall decide the same. Section 32 bars a suit for a decision upon the existence, effect or validity of an arbitration agreement or award or to set them aside. The point, therefore, that arises for our consideration is as to whether the plaintiff's claim in respect of premises No. 4, Loudon Street, and the three businesses above referred to involves any claim, the adjudication whereof in a separate suit is barred in view of the above provisions of the Arbitration Act. It is, however, difficult for us to answer this question in the affirmative. The plaintiff has not asked for setting aside the award nor has he challenged the existence or validity thereof. The award as such is not being challenged. The plaintiff claims partition on the basis of his title by inheritance not affected by the award and the decree which, being sham, is not in existence in fact. Admitting the existence and the validity of the award otherwise as an award, the plaintiff claims that it is a sham decree set up by his father and mother to defraud the creditors. Such a claim involving an adjudication as to factual existence of the decree based on the award, in our view, does not come within the purview of Section 33 of the Arbitration Act, and, as such, Section 32 does not bar such an adjudication in an independent suit. One of the objections upheld by the learned subordinate judge, therefore, appears to us to be based on a misconception of the scope and effect of the two provisions of the Arbitration Act, referred to hereinbefore.

6. Next we proceed to consider the scope and effect of Section 281A of the I.T. Act. Section 281A(1) provides as follows :

'No suit to enforce any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person shall be instituted in any court by or on behalf of a person (hereafter in this section referred to as the claimant) claiming to be the real owner of such property unless,--

(a) the income, if any, from such property has been disclosed in any return of income furnished by the claimant under this Act; or

(b) such property has been disclosed in any return of net wealth furnished by the claimant under the Wealth-tax Act, 1957 (27 of 1957); or

(c) notice in the prescribed form and containing the prescribed particulars in respect of the property has been given by the claimant to the Income-tax Officer.'

7. Analysing this provision on its terms, we find that two conditions need be fulfilled to attract its application. In the first place, the right to be enforced must be in respect of a property held in the name of the benamidar and, secondly, such a claim must be made by or on behalf of aperson claiming to be the real owner. In the facts of the present case there is considerable doubt in our mind as to whether the first of the aforesaid conditions is fulfilled. As indicated hereinbefore, according to the plaintiff both the immovable property and the businesses were held by his father who merely created a sham decree based on a collusive arbitration award. According to the plaintiff, the entire proceeding under the Arbitration Act was sham and collusive intended to have no effect other than throwing the properties beyond the clutches of the creditors and the I.T. Dept.

8. Assuming, however, that the true effect of the decree on the award was to create a benami transaction as between Benoy and his wife, the present suit cannot be said to be a suit by or on behalf of the person claiming to be the real owner or in other words the second condition referred to hereinbefore cannot be said to have been fulfilled. The person claiming to be the real owner in Sub-section (1) of Section 281A above referred to, necessarily means the real owner vis-a-vis the benamidar, that is, the person who creates the benami. This position is rendered clear when we refer to the statutory form of notice under Clause (c) which is set out here-under:

To

The Income-tax Officer,

Sir,

I/We, .....................hereby bring to your notice that the property, particulars of which are given below, is held by .................. as my/our benamidarand that I am/we are the real owner(s) of the said property :

(a) Detailed description of the property.

(b) Address of benamidar.

(c) Date on which the right, title or interest to or in the property was acquired.

(d) Consideration paid for acquiring the right, title or interest.

2. I/We propose to institute a suit to enforce my/our right in the aforesaid property in the court of.........

Signature

Permanent A/c. No., if any Date Address.

9. This section, therefore, contemplates that a person who having acquired the property in the benami of another, holds the same as such, is required to give notice disclosing that fact to the I.T. authorities before he can institute any suit to enforce any right in respect thereof. This provision, however, does not cover the case of a person like the present plaintiff who claims title to a property by inheritance although in tracingsuch title he pleads that one amongst his predecessors hold the same in benami.

10. In our opinion Section 281A of the I.T. Act was never intended to be made so wide as Section 66 of the CPC which brings within its purview not only the real purchaser but also all those who claim through him. If the Legislature wanted to give such a wider connotation to Section 281A of the I.T. Act, it would have framed the provision in like manner as it did in Section 66 of the Code. For the reasons aforesaid, we are unable to accept the contention of Mr. Ghosh that the plaintiff in the present case is a person who has laid any claim in respect of any property held by him in benami and claiming himself to be the real owner thereof. On the other hand, according to us, he is laying his claim on inheritance from his father setting up a claim that his father was the real owner notwithstanding the sham decree in an arbitration proceeding in favour of the plaintiff's mother. The learned subordinate judge, therefore, materially misread the provision as aforesaid in holding that a part of the plaintiff's claim is barred thereunder.

11. As the learned subordinate judge has totally non-suited the plaintiff in respect of a part of his claim acting upon a clear misreading of statutory provisions, the order impugned needs; to be set aside in exercise of our powers in revision as otherwise the plaintiff would suffer irreparable prejudice in the suit and we direct accordingly. The revisional application, therefore, succeeds and the impugned order is set aside. The two issues are answered in favour of the plaintiff. There will be no order for costs.

S.N. Sanyal , J.

12. I agree.


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