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2021 (3) TMI 367 - HC - Benami PropertyBenami Transaction entered into between spouses - plaintiff being the wife of the appellant-husband - acquasition of substantive right - payment of consideration money to effectuate the sale transaction - HELD THAT:- This Court in exercise of its jurisdiction under Article-100 of the CPC 1908, should not disturb the concurrent finding decreeing the suit in favour of the plaintiff as passed by both the courts below - This submission of the learned counsel appearing for the plaintiff merits no consideration, since both the courts below have misinterpreted and misconstrued the legal issues involved in the facts and circumstances of the present case. It is well- settled that when the courts below had returned a finding which is contrary to law and arrived at a perverse finding both on points of law and facts, this Court in exercise of its powers under Section-100 of CPC would have the solemn duty to set the law in its proper perspective. Plaintiff being the wife of the appellant-husband has not acquired any substantive right, and as a de facto owner, she has not accrued any substantive right. She cannot claim any right over the suit property against the title of the de jure owner/husband/defendant. Defendant has not taken the plea of fiduciary relationship in his written statement which debars the defendant-appellant to take the advantage of Section-4(3)(b) of the old Act. In my opinion, this finding of the learned First Appellate Court suffers from misinterpretation of the provision for the reason that the question involving fiduciary relationship in the context of the present case constitutes a substantial question of law and being the same is a legal question, it is immaterial whether any plea was taken in his pleadings in the written statement. It is settled proposition of law that a statute has to be read in whole. On conjoint reading of both the old and new Act, the object and intent of the legislature is manifestly clear and unambiguous where it prohibits benami transactions and the right to such property held benami with penal provisions for such benami transactions. However, while enacting the Act, the legislatures have kept in mind the practical scenario of the society where a spouse can purchase a property in the name of another spouse and also in the name of their child and consciously have exempted those individuals who were/are the participants of such transactions and such transactions were kept outside the purview of the Act and the Act is not intended to give banami colour to the transactions entered into between spouses. The instant appeal filed by the husband-defendant/appellant must succeed and accordingly, the present second appeal stands allowed.
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