Home Case Index All Cases Benami Property Benami Property + HC Benami Property - 2019 (1) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (1) TMI 1147 - HC - Benami PropertyProhibition of benami transactions - vested right in favour of the respondents/defendants by the repealed provisions of Section 4(3) of the unamended Act when it used the expressions ‘fiduciary capacity’ and ‘trustee’ - Held that:- There did not exist any vested right that a particular transaction was specified as an exempted transaction as not being a barred benami transaction under the expressions ‘fiduciary capacity’ and ‘trustee’ under the repealed provision of Section 4(3) of the unamended Act, and by Section 2(9) of the Amended Act a ‘benami transaction’ is defined and the exceptions have been specifically defined which are the exceptions to the prohibited benami transaction. No vested right is thus taken away, and therefore, the trial court has erred in holding that there existed a vested right in favour of the respondents/defendants by the repealed provisions of Section 4(3) of the unamended Act when it used the expressions ‘fiduciary capacity’ and ‘trustee’. Thus definitions of the exempted transactions to the prohibited benami property transactions, and now contained in the four exceptions in Section 2(9) of the Act are always deemed to have been included in the exceptions to the prohibited benami transactions, and in the facts of the present case, the suit of the appellant/plaintiff would be maintainable by the third exception contained in Section 2(9) of the Amended Act, and that whether or not on facts, the appellant/plaintiff is able to make out a case under the third exception, the same is a disputed question of fact requiring trial, and can only be decided after evidence is led by the parties, and the suit plaint thus could not have been rejected under Order VII Rule 11 CPC without trial. This appeal is therefore allowed. The impugned Judgment of the trial court dated 08.05.2018 is set aside. Suit is remanded back to the trial court for decision in accordance with law.
|