Calcutta High Court (Appellete Side)
Tarun Kumar Ghosh And Another vs Ashoke Kumar Ghosh And Another on 23 March, 2026
Author: Supratim Bhattacharya
Bench: Supratim Bhattacharya
2026:CHC-AS:466-DB
Form No. J(2)
In the High Court at Calcutta
Civil Appellate Jurisdiction
Appellate Side
Present: The Hon‟be Justice Sabyasachi Bhattacharyya
And
The Hon‟ble Justice Supratim Bhattacharya
F.M.A. 708 of 2025
IA No: CAN 1 of 2025
Tarun Kumar Ghosh and another
Vs.
Ashoke Kumar Ghosh and another
For the appellants : Mr. Piyush Chaturvedi, Sr. Adv.
Mr, Tarak Nath Halder, Adv.
For the respondent no.1 : Mr. Ayan Banerjee,
Ms. Madhumita Patra, Advs.
Heard on : 23.03.2026 Judgment on : 23.03.2026 Sabyasachi Bhattacharyya, J.:-
1. In view of arguable questions being involved, to be indicated
below, the appeal is admitted to be heard on the grounds taken
in the Memorandum of Appeal.
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2. Since we have substantially heard the issues involved on merits,
we take up the appeal itself for adjudication along with the
application.
3. The appeal arises out of a temporary injunction order passed in
connection with a suit for partition. In the said suit, declaration
of title has also been sought.
4. Learned senior counsel appearing for the defendant nos.1 and
2/appellants points out that implicit in the declaration of title
sought in the partition suit was a declaration that certain
properties, which are the subject-matter of the suit, were
purchased by the plaintiff/respondent no.1 benami, in the name
of the defendant no.1, who was a mere name-lender, although
the funds for the purchase were supplied by the plaintiff.
5. Learned senior counsel argues that the learned Trial Judge
completely overlooked the bar under Section 4 of the Prohibition
of the Benami Property Transactions Act, 1988 (hereinafter
referred to as „the 1988 Act‟) in granting injunction.
6. Secondly, it is argued that the defendants pointed out in their
written objection to the injunction application that a preemption
suit has been filed in respect of a sale deed executed by the
defendant no.1 in favour of his wife, the defendant no.2
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(appellants herein), thereby admitting the title of the plaintiff
no.1 in the suit property.
7. Thus, having taken a contrary stand admitting the title of
defendant/appellant no.1, the plaintiff/respondent no.1 could
not have asserted his title to the suit property.
8. Learned senior counsel argues that this is not a case of a
partition suit simpliciter, where declaration of title of the parties
is implicit, but the title of the true owner of the property, as
evident from the title deeds themselves, has been sought to be
dislodged on the ground of benami, which is patently barred by
law.
9. Learned senior counsel next points out that apparently an
agreement of 2010 was relied on by the plaintiff/respondent in
the trial court.
10. However, such deed could not have been an indicator of the
urgency involved in an injunction application filed in the year
2020.
11. It is further argued that the deeds-in-question, which stand in
the name of the defendant/appellant no.1, were of the year 2005
-2006, whereas the suit was filed only in the year 2020.
12. Thus, in the absence of any case of urgency or irreparable injury
having been made out, it is argued that the learned Trial Judge
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erred in law in granting injunction in favour of the
plaintiff/respondent no.1.
13. Learned counsel appearing for the plaintiff/respondent no.1, in
reply, places reliance on an unreported judgment of the Hon‟ble
Supreme Court in the matter of Smt. Shaifali Gupta vs. Smt.
Vidya Devi Gupta and others [Special Leave Petition (Civil)
No.4674 of 2023] where, while adjudicating on the rejection of a
plaint under Order VII Rule 11 of the Code of Civil Procedure,
the Hon‟ble Supreme Court observed, inter alia, that the plaint
allegations all through described the suit properties as the Joint
Hindu Family properties and alleged that they had been
purchased either from the nucleus of the Joint Hindu Family
property or the income derived from the joint family business.
14. The properties, it was held, were not described as benami in the
name of any member of the family. Therefore, “from the plaint
reading, the suit properties could not be ex facie held to be
benami properties in respect whereof the suit may not be
maintainable in view of Section 4 of the Benami Act”.
15. In such context, the Hon‟ble Supreme Court observed that the
court was required to consider whether the transactions came
within the exceptions envisaged in Sections 2(8) and 2(9) of the
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1988 Act, which was held to be a mixed question of fact and law
to be decided on evidence at the final hearing of the suit.
16. In the present case, it is submitted, the plaintiff has made out a
case that a sweetmeat shop, which originally belonged to the
father of the plaintiff/respondent no.1 and defendant/appellant
no.1 as well as the proforma defendant no.3/proforma
respondent, was jointly run by the said parties.
17. Subsequently, as per the plaint, a real estate/land transaction
business was started from the funds of the said sweetmeat shop
business.
18. As per the plaint, it is argued, the properties-in-question were
primarily purchased from the funds of the said joint family
business.
19. In such context, learned counsel for the plaintiff/respondent
no.1 submits, the dispute raised in the suit comes within the
exception clause envisaged in Section 2(9)(A)(b)(ii) of the 1988
Act, as per which a person standing in a fiduciary capacity for
the benefit of another person towards whom he stands in such
capacity, including a trustee, executor, partner, Director of a
Company etc., is exempted from the bar contemplated in the Act.
20. Learned counsel appearing for the plaintiff/respondent no.1 next
submits, by handing over a copy of an agreement of 2010, that
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by dint of the same, all the co-owners of the suit properties, that
is, the three brothers, being the plaintiff, defendant no.1 and
proforma defendant no.3 in the suit, agreed that the properties-
in-question were purchased from the funds of the joint real
estate business, which could, in turn, be sourced to the income
from the joint sweetmeat shop business of the parties, which is a
family business.
21. Hence, it is argued that sufficient prima facie case was made out
before the learned Trial Judge, to establish that the suit
properties are joint properties of the parties, for the latter to
pass the impugned order of temporary injunction.
22. Upon hearing learned counsel for the parties, we find that at
this stage, it would not be appropriate to conclusively hold that
the suit is ex facie barred by the prohibition contemplated under
Section 4(1) of the 1988 Act.
23. As rightly contended by the plaintiff/respondent no.1, Section
2(9)(A)(b), sub-clause (ii) carves out a niche for a person
standing in fiduciary capacity for the benefit of another to be
exempted from the operation of the said bar.
24. From the illustrations given in the said sub-clause, it is found
that jural relationships in the nature of partners are also
contemplated therein, as are agents.
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25. Going by the plaint case in the present case, the claim of the
plaintiff is premised on the averment that the subject properties
were substantially purchased from the joint funds derived from
the real estate business run by the parties which, in turn, has
its capital sourced from the sweetmeat shop business of the
parties. Thus, prima facie, the parties stand in fiduciary capacity
inter se insofar as the property transactions from the joint
business funds are concerned.
26. Insofar as the allegations made in paragraph no.5 of the plaint
are concerned, on which much reliance is placed by learned
senior counsel appearing for the appellants, we find that
although initially it has been pleaded in the said paragraph that
the plaintiff paid the consideration of the property mentioned
therein, despite the same standing in the name of the defendant
no.1, simultaneously, the plaintiff has also pleaded that the said
consideration amount was paid in instalments by the plaintiff
from the income of his business, which has been directly related
to the land transaction/real estate business jointly run by the
parties.
27. Thus, from the pleadings in the plaint and the temporary
injunction application filed in the trial court, it cannot be said
that the suit is ex facie barred by Section 4 of the 1988 Act.
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28. As held by the Hon‟ble Supreme Court in Smt. Shaifali Gupta
(supra), if the question pertains to whether the exception clause
under Section 2(9) of the 1988 Act applies, the same is a mixed
question of fact and law, which is required to be decided on
evidence at the final hearing of the suit.
29. Although the said decision was rendered in the context of an
application under Order VII Rule 11 of the Code, which is
different in scope than an injunction application, the principle
laid down therein still holds good inasmuch as if an arguable or
triable issue is raised on a mixed question of law and fact, which
is to be decided by trial on evidence in the suit, it has to be held
that a sufficient prima facie case for grant of injunction has been
made out.
30. Moreover, we cannot overlook at this stage the agreement of
2010 produced by the plaintiff/respondent no.1, which prima
facie evidences the agreement between the contesting parties as
to the properties-in-question being purchased from the joint
funds of the businesses of the family.
31. Insofar as the argument of the appellants regarding dearth of
urgency is concerned, going by the averments made in the
plaint, the cause of action of the suit arose when the
plaintiff/respondent no.1 approached the defendant nos. 1 and
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2/appellants for partition of the property and it was given out by
the said defendants that a transfer deed has been executed by
the defendant/appellant no.1 in favour of his wife,
defendant/appellant no.2.
32. At the earliest after such event, the suit was filed along with the
injunction application.
33. As such, a prima facie case of urgency has also been made out.
34. Even otherwise, it is a well-settled principle of law that in a suit
for partition, the endeavour of the court is to maintain the
property in statu quo till disposal of the lis in order to avoid
multiplicity of proceedings as well as to obviate irreversible
alterations to the title and character of the subject property.
35. Keeping in view such settled proposition of law, this court is of
the opinion that the trial court adopted one of the plausible
views on the basis of the materials before it and there is no
scope of interference by the appellate court merely to substitute
its own views for that of the trial court, in the absence of any
legal error in the impugned order.
36. Hence, the appeal fails.
37. FMA 708 of 2025 is dismissed on contest without any order as to
costs, thereby affirming the impugned order, bearing Order
No.42 dated October 7, 2024, passed by the learned Civil Judge
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(Senior Division), Second Court at Chinsura, District- Hooghly in
Title Suit No.204 of 2020.
38. CAN 1 of 2025 is accordingly disposed of as well.
39. It is made clear that all the aforesaid findings are tentative in
nature, arrived at only for the purpose of adjudicating the
appeal from a temporary injunction order, and it will be open to
the learned Trial Judge to decide all issues involved in the suit
independently and in accordance with law, without being
unnecessarily influenced by any of the observations.
40. Urgent photostat copies of this order, if applied for, be given to
the parties upon compliance of all requisite formalities.
(Sabyasachi Bhattacharyya, J.)
I agree.
(Supratim Bhattacharya, J.)
AD-25
AK