TMI Blog2005 (8) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... that purchase of the suit property by the appellant in the name of the respondent was benami in nature. Keeping these concurrent findings of fact in our mind which would conclusively prove that the transaction in question was benami in nature, let us now consider whether the appellant was entitled to raise the plea of benami in view of introduction of the Benami Transaction (Prohibition) Act, 1988 ( Act ). Admittedly, the transaction in question was registered on 24th August, 1970. The suit was filed on 5th of July 1984 which was long before coming into force of the Act. It is an admitted position that the written statement in the suit taking plea of benami was also filed by the appellant long before the Act had come into force. Therefore, it was not a case where Section 4(2) of the Act will have a limited operation in the pending suit after Section 4(2) of the Act had come into operation. In this case, the trial court as well as the appellate court concurrently found that although the suit property was purchased in the name of the respondent but the same was purchased for the interest of the appellant. We are therefore of the opinion that even if the presumption under section 3(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Chitradurga Taluk in the State of Karnataka (hereinafter referred to as the suit property ). The appellant, who suffered defeat in second appeal before the High Court at Bangalore (Karnataka), filed a Special Leave Petition which on admission got registered as a regular appeal being Civil Appeal No. 2867/2000 in this Court. The appellant is the father of the respondent. The suit property was purchased by the appellant in the name of the respondent by a registered sale deed dated 24th of August, 1970 when the respondent was a minor of seven years of age. Subsequently, her marriage was settled and at that point of time she was assured that the respondent shall not be disturbed as she was given to understand that the suit property was her own property. She was married to one Shri C.Thippeswamy on 4th of December, 1980. Relationship between the appellant and the respondent was cordial till 8th of October, 1983, and only thereafter relationship became strained. At that stage she asked for vacation of the suit property not only from the appellant and his family but also from the tenants who were defendants 2 to 5 in the suit and for payment of rent to her. The appellant and the tenant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty. He also obtained permission of the Deputy Commissioner for alienation of the suit property for non-agricultural purposes. He paid taxes levied by the Revenue Authorities in respect of construction of the house. He also paid alienation charges and Kandayam of the suit property from time to time. Accordingly, the appellant sought for dismissal of the suit inter alia on the ground that he was the real owner and in possession of the suit property and the respondent was merely a benamidar in respect of the same. Parties went into trial with the following issues: 1) Does the plaintiff prove that she is the owner of the suit property? 2) Is she entitled to possession of the suit property as contended by her? 3) Is she entitled for damages as claimed by her? 4) To what relief the plaintiff was entitled, if any? An additional issue was framed which is of the following effect: Does defendant No.1 prove that the suit was purchased nominally in the name of the plaintiff under the circumstances pleaded in the written statement, the plaintiff is a benamidar and he is the real owner of the suit property, as contended? Parties went to trial after adducing evidence to support their respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate court. On the other hand, in our view, the findings of the appellate court as well as the trial court were based on due consideration of oral and documentary evidence on record and pleadings of the parties. To consider the intention to purchase the suit property for the benefit of the respondent, in our view, the fact of bequeathing the suit property by executing a Will by the appellant in favour of respondent and two sons could not at all be a factor for consideration. The execution of the Will by the appellant in favour of his sons and the respondent would only indicate that the suit property was treated as the property of his own and the respondent was never accepted by him to be a real owner of the same. The other ground on which the concurrent findings of fact were set aside and suit was decreed is to the following effect: Even otherwise, as could be gathered from the evidence and representation made at the Bar, her father used to purchase the property in the name of all his sons and daughters on auspicious days. It can be clearly gathered that the intention of the father was to benefit his children to avoid any possible conflict or dispute that may arise between them with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, relationship of the parties and subsequent conduct of the appellant tend to show that the transaction was benami in nature. Keeping these concurrent findings of fact in our mind which would conclusively prove that the transaction in question was benami in nature, let us now consider whether the appellant was entitled to raise the plea of benami in view of introduction of the Benami Transaction (Prohibition) Act, 1988 (In short Act ) and whether the Act was retrospective in operation. If so, in view of Section 4(2) of the Act, plea of benami in the defence of the appellant was not available to him. Before a two Judges Bench decision of this Court, in the case of Mithilesh Kumari and another Vs. Prem Behari Khare 1989(2) SCC 95 this question had cropped up. In that decision, it was held that the question of benami cannot be taken as a plea either in the plaint or in the written statement even when the sale deed was executed and registered before the introduction of the Act and when the suit was filed before the Act had come into force. Before we proceed further, we may remind ourselves of certain provisions of the Act. Section 2 (a) defines 'benami transactions' which mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vity for decision to a 3-Judges Bench of this Court. In the case of R.Rajagopal Reddy (Dead) by LRs. And Ors. Vs. Padmini Chandrasekharan (Dead) by LRs. 1995 (2) SCC 630, S.B. Majmudar, J. (As His Lordship then was) writing the judgment for the Three Judges Bench could not agree with the views expressed in Mithilesh Kumari's case and held that the Act was prospective in nature and it has no retrospective operation excepting certain observations made in respect of some cases which would be mentioned hereinafter. In paragraph 10 it was observed as follows:- though the Law Commission recommended retrospective applicability of the proposed legislation, Parliament did not make the Act or any of its sections retrospective in its wisdom. . Thereafter on a careful consideration of the provisions made under sections 3 and 4 of the Act, it was observed: A mere look at the above provisions shows that the prohibition under Section 3(1) is against persons who are to enter into benami transactions and it has laid down that no person shall enter into any benami transaction which obviously means from the date on which this prohibition comes into operation i.e. w.e.f. 5/9/1988. That takes care ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t benami transaction. To that extent the section may be retroactive. In our view, similar is the position in law on the question of retrospectivity of section 4(2) of the Act. Finally, this Court in the aforesaid decision held that the decision in Mithilesh Kumari Anr. Vs. Prem Behari Khare erred in taking the view that under Section 4(2), in all suits filed by persons in whose names properties are held no defence can be allowed at any future stage of the proceedings that the properties are held benami cannot be sustained. It was also held that Section 4(2) will have a limited operation even in cases of pending suits after Section 4(2) had come into force, if such defences are not already allowed. The decision in R. Rajagopal Reddy (Dead) by LRs. And Ors. Vs. Padmini Chandrasekharan (Dead) by LRs. 1995 (2) SCC 630 which overruled the decision of two Judges Bench in the case of Mithilesh Kumari and Anr. Vs. Prem Behari Khare 1989 (2) SCC 95 was also approved by this Court in the cases of Prabodh Chandra Ghosh Vs. Urmila Dassi AIR 2000 SC 2534 and C. Gangacharan Vs. C.Narayanan AIR 2000 SC 589. In view of the aforesaid, this question is, therefore, no longer res integra. Therefore, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellate court concurrently found that although the suit property was purchased in the name of the respondent but the same was purchased for the interest of the appellant. We are therefore of the opinion that even if the presumption under section 3(2) of the Act arose because of purchase of the suit property by the father ( in this case appellant ) in the name of his daughter ( in this case respondent ), that presumption got rebutted as the appellant had successfully succeeded by production of cogent evidence to prove that the suit property was purchased in the benami of the respondent for his own benefit. Let us now consider whether the concurrent findings of fact could be set aside by the High Court in the second appeal. It is well settled by diverse decisions of this Court that the High Court in second appeal is entitled to interfere with the concurrent findings of fact if the said concurrent findings of fact are based on non- consideration of an important piece of evidence in the nature of admission of one of the party to the suit, which is overlooked by the two courts below ( See [2003 (7) SCC 481, Deva (Dead) Through LRs Vs. Sajjan Kumar (Dead) by LRs] ). It is equally we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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