Tarun Kumar Ghosh And Another vs Ashoke Kumar Ghosh And Another on 23 March, 2026

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    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

    SPONSORED

    below, the appeal is admitted to be heard on the grounds taken

    in the Memorandum of Appeal.

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    2026:CHC-AS:466-DB

    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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    2026:CHC-AS:466-DB

    (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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    2026:CHC-AS:466-DB

    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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    2026:CHC-AS:466-DB

    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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    2026:CHC-AS:466-DB

    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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    2026:CHC-AS:466-DB

    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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    2026:CHC-AS:466-DB

    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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    2026:CHC-AS:466-DB

    (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



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