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2020 (3) TMI 931 - HC - Benami PropertyBenami transaction - right of the plaintiff to sue - Whether a registered Kobala executed by one Kusum Kumari Gupta, original plaintiff No.3, since deceased in favour of one Maya Gupta is a Benami transaction or not? - even assuming that the said transaction was a Benami transaction, whether a suit for declaration to such effect is barred under Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 - HELD THAT:- In the instant case, it is specifically pleaded by the plaintiffs/appellants that the original defendant Smt. Maya Gupta made an application in the local Municipality in the year 1970 to mutate her name in respect of the suit property. The said application was rejected by the Municipality on 22nd January, 1970. Immediately thereafter, the plaintiffs filed the suit. Thus, the Trial Court correctly held that right of the plaintiff to sue accrued only when the defendant tried to infringe the plaintiffs’ title over the suit property on the basis of the said two deeds. As already held that this Court cannot re-appreciate the evidence on the factual aspect of motive of the parties to execute such deeds, accumulation of consideration price and payment of the same and other relevant factors necessary to hold a transaction Benami or not. Suffice it to say that the learned Trial Judge in great detail held that though the purported deeds of sale were executed on 11th June, 1957, all along the said deeds were in custody of the vendor. The suit property was recorded in the record of Kanchrapara Municipality in the name of the vendor. The vendor used to collect rent from the tenants. The electricity in the suit property stood in the name of the vendor. The vendor performed all acts incidental to ownership of the suit property in spite of execution of the said two deeds of sale dated 11th June, 1957. All such factual circumstances are recorded by me only to show that the learned Trial Judge had dealt with the issues of fact raised by the respondents and again such finding, the respondents have not filed any cross-objection before the learned First Appellate Court. The plaintiffs filed the suit for declaration that the deeds of sale dated 11th June, 1957 are Benami transaction. They pleaded in the plaint that they are in possession of the suit property. The defendant No.1 Smt. Maya Gupta is in possession of one room of the suit property as a licensee. It is, of course, an executive decision of the appellants as to whether they would allow the respondents to occupy one room in the suit property as a licensee or they would recover possession of the suit property by revocation of license. Under such circumstances, the suit cannot be said to be barred under the Proviso of Section 34 of the Specific Relief Act. Moreover, no such question was raised as the substantial question of law by the respondents in the instant appeal. So this Court has no scope to decide such question in the instant appeal. On the question of law formulated in the instant appeal, have no other alternative but to hold that the Hon’ble Supreme court in R. Rajagopal Reddy [1995 (1) TMI 67 - SUPREME COURT] held that Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 is not retrospective in operation and does not apply to pending suits already filed and entertained prior to coming into force in Section 4. Substantial question of law is necessary in favour of the appellants. Accordingly, the appeal is allowed on contest without costs.
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