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Samittri Devi and Anr. Versus Sampuran Singh and Anr.

2011 (1) TMI 1518 - SUPREME COURT OF INDIA

Civil Appeal No. 846 of 2011 (Arising out of Special Leave Petition (C) No. 1305 of 2010) - Dated:- 21-1-2011 - H.L. Gokhale and Dalveer Bhandari, JJ. For Appellant : Plaintiff: Sai Krishna Rajagopal, Hari Shankar K., Vikas Singh Jangra and Bharat S. Kumar, Advs. For Respondents : V.K. Monga, Adv. JUDGMENT H.L. Gokhale, J. 1. Leave Granted 2. This Appeal by Special Leave raises the question as to whether the suit of the first Appellant for the recovery of her house property filed prior to the Be .....

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rdaspur in Civil Appeal No. 203 of 1991 filed by Appellant No. 1 herein. The Learned Additional District Judge had allowed the Civil Appeal filed by Appellant No. 1 herein whereby he decreed Civil Suit No. 138 of 1987 filed by Appellant No. 1, which suit had been dismissed by the Sub-Judge at Pathankot by his judgment and order dated 3.10.1991. 4. Short facts leading to this appeal are as follows: The Appellant No. 1 herein purchased a house property situated at Pathankot from Sarvashri Romesh C .....

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nd it continues to be in their possession. 5. It is the case of the Appellant No. 1 that taking advantage of her old age (presently 93 years), the above referred Kamal Chand and Jiwan Kumar stealthily removed the sale deed from her possession, and this Jiwan Kumar sold half share of the suit house to one Sampuran Singh (Respondent No. 1 herein) and that too without her knowledge and consent. The sale was executed by a registered sale deed dated 13.4.1987 despite the fact that Appellant No. 1 had .....

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thankot. She prayed for a permanent injunction also restraining the Defendants from alienating any part of the suit house and forcibly interfering with the possession of the Plaintiff of the suit house. By moving an amendment, she claimed an alternative relief for a decree of ₹ 40,000/- with interest. Her son Kamal Chand was joined as Defendant No. 1, his brother-in-law the above referred Jiwan Kumar as Defendant No. 2, and the purchaser Sampuran Singh as Defendant No. 3. They are Appellan .....

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on) Act 1988, the Defendants Nos. 1 & 2 were the owners of the Suit property, and that the alienation of his share in the property by Defendant No. 2 in his favour had been effected legally. He contended that he had purchased the share of the Defendant No. 2 by sale deed dated 13.4.1987 for a consideration of ₹ 30,000/-, and that he was a bonafide purchaser for value, and that the Suit should be dismissed. 8. The trial court framed the necessary issues including whether the sale deed d .....

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share of the Suit House, but he did not lead any evidence for proving the availability of such funds with him. The Trial Court therefore, held that it was obvious that the payment was not made by Defendant Nos. 1 & 2, but by the Plaintiff i.e. the Appellant No. 1 herein. 10. The Appellant No. 1 had produced before the trial court a copy of the notice dated 8.4.1987 which she had sent to Defendant No. 3, to point out to him that she was the real owner of the suit house. She produced the same .....

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rovisions of Benami Transactions (Prohibition) Act 1988 were retroactive. It had been held that the prohibition under Section 4 of the Act to recover the Benami property was applicable to suits, claims or action pending on the date of commencement of the Act. The Appellant No. 1 had filed her suit on 30.9.1987. The Benami Transactions (Prohibition) Act 1988 came into force on 5.9.1988. Thus, this Suit was pending on the date on which the Act came into force. The Trial Court, therefore, followed .....

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payment from her account. It had, however, declined to decree her suit on two grounds, firstly due to the prohibition under Section 4 of the Benami Transactions (Prohibition) Act 1988 as interpreted in Mithilesh Kumari judgment (supra), and secondly on the ground that the Appellant did not prove the service of her notice dated 8.4.1987 on Respondent No. 1 herein. By the time the first appeal was being heard, the judgment of the two Judges bench in Mithilesh Kumari (supra) had been over-ruled by .....

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utory provision creates a new liability and a new offence, it would naturally have a prospective operation, and Section 4 will not apply to pending suits which were already filed and entertained prior to the Act coming into force. The first appellate Court therefore, held that the suit filed by Appellant No. 1 was not prohibited by the said Act. As far as the notice dated 8.4.1987 is concerned, the Court held that there was a presumption under the law that the letter which was proved to have bee .....

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was the real owner in possession of the house and the sale deed dated 13.4.1987 was null and void. It also granted an injunction against the Defendants that they shall not alienate any part of the suit house and will not interfere in her possession of the suit house. The Court awarded cost of ₹ 1,000/-. 12. Feeling aggrieved by this decision, the first Respondent herein filed a Regular Second Appeal bearing RSA No. 1367 of 1996. The Learned single Judge of the High Court, who heard the ma .....

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87 being sent under postal certificate, but held that there was nothing on record to prove that Defendant No. 3 had been served with that notice. The Learned Single Judge therefore, found fault with the finding of the Additional District Judge to the effect that Defendant No. 3 (Respondent No. 1 herein) was not a bonafide purchaser, and further held that, it amounted to misreading of evidence. The Regular Second Appeal was therefore, allowed and the judgment and decree of the Addl. District Judg .....

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d Judge, and in view thereof the suit filed by the Appellant No. 1 was not hit by the prohibition under Section 4 of the Act. He also pointed out that the Appellants as well as the Respondent No. 1 were staying in the same area i.e. College Road, Pathankot, and therefore, the Learned Additional District Judge was right in his inference that the notice dated 8.4.1987 must be presumed to have been duly served on Respondent No. 1 prior to 13.4.1987 when Respondent No. 3 purchased half share of the .....

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chased half the share of the suit house from his money, and from him the Respondent No. 1 had purchased that share, and therefore, the present appeal should be dismissed. 15. We have noted the submission of the rival parties. As far as the purchase of the suit house by the Appellant No. 1 from her own money is concerned that finding of the trial court has remained undisturbed all throughout and cannot be re-opened in this appeal. The Appellant No. 1 led cogent evidence before the trial court, an .....

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o. 2 had no right to deal with it or to sell his half share merely because his name was shown as a purchaser alongwith the Appellant No. 2. Consequently the purchase of the share of the Defendant No. 2 by the Respondent No. 1 herein without the consent of the Appellant No. 1 gave him no rights whatsoever. Therefore, the High Court ought to have held that the suit of Appellant No. 1 for declaration of her ownership to be valid and maintainable. 16. The High Court has clearly erred in ignoring the .....

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any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. While reversing the earlier decision of this Court in Mithilesh Kumari (supra), a bench of three Judges observed in para 11 of R. Rajagopal Reddy (supra) as follows:- Before we deal with these six considerations which weighed with the Division Bench for taking the view that Section .....

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mi, for matters connected therewith or incidental thereto. Thus it was enacted to efface the then existing right of the real owners of properties held by others benami. Such an Act was not given any retrospective effect by the legislature. Even when we come to Section 4, it is easy to visualise that Sub-section (1) of Section 4 states that no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any othe .....

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ing on the date when Section 4 came into force shall not be proceeded with and shall stand abated. On the contrary, clear legislative intention is seen from the words "no such claim, suit or action shall lie", meaning thereby no such suit, claim or action shall be permitted to be filed or entertained or admitted to the portals of any court for seeking such a relief after coming into force of Section 4(1). (Emphasis supplied) 17. In the impugned judgment, the High Court nowhere refers t .....

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ning the same shall not lie. In fact there was no such misreading of evidence on the part of the first appellate court, and hence there was no occasion for the High Court to frame such a question of law in view of the prevailing judgment in R. Rajagopal Reddy which had been rightly followed by the first appellate court. 18. The High Court has held that there is nothing on record to suggest that Respondent No. 1 herein had, in fact, been served with the notice dated 8.4.1987 and thereby reversed .....

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ch pleading to that effect. It is on this background that the first appellate court has drawn the inference that the notice must be deemed to have been served within the period of five days thereafter i.e. before 13.4.1987, the date on which the Respondent No. 1 herein entered into an agreement to purchase the suit property. It is also material to note that the Appellant's premises are situated on College Road, Pathankot and so also the residence of the first Respondent where the notice was .....

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udgments are concerning the notices sent by registered post. Firstly, the judgment in the case of Harihar Banerji v. Ramshashi Roy AIR 1918 PC 102, wherein the Privy Council quoted with approval the following observations in Gresham House Estate Co. v. Rossa Grande Gold Mining Co. 1870 Weekly Notes 119 to the following effect: ...if a letter properly directed, containing a notice to quit, is proved to have been put into the post office, it is presumed that the letter reached its destination at t .....

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t of a Full Bench of the Allahabad High Court in the case of Ganga Ram v. Smt. Phulwati AIR 1970 Allahabad 446, wherein the Court observed in paragraphs 12 and 13 as follows: 12. When a registered article or a registered letter is handed over to an accepting or receiving post office, it is the official duty of the postal authorities to make delivery of it to the addressee. Human experience shows that except in a few exceptional cases letters or articles received by the post office are duly, regu .....

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course of business, according to which it naturally would have been done, is a relevant fact. Illustrations: (a) The question is, whether a particular letter was dispatched. The facts that it was the ordinary course of business for all letters put in a certain place to be carried to the post, and that that particular letter was put in that place, are relevant. (b) The question is, whether a particular letter reached A. The facts that it was posted in due course, and was not returned through the .....

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erned office. This was because the Respondent rebutted the submission by producing their file to show that such a letter had not been received in their office in the normal course of business. However, the proposition laid down in that case is relevant for our purpose. This Court observed in paragraph 6 of that judgment as follows: 6. ...The certificate of posting might lead to a presumption that a letter addressed to the Assistant Collector of Customs was posted on August 14, 1980 and in due co .....

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letter was received by the addressee or that no letter was ever despatched as claimed. After all, there have been cases in the past, though rare, where postal certificates and even postal seals have been manufactured. In the circumstances of the present case, circumstances to which we have already referred, we are satisfied that no such letter of retraction was posted as claimed by the detenu. 22. The proposition laid down in this judgment has been followed in two subsequent cases coming before .....

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tween the parties were embittered, and the certificate of posting was suspect. As against that, in a subsequent matter under the same section, in the case of V.S. Krishnan v. Westfort Hi-Tech Hospital Ltd. 2008 (3) SCC 363, another bench of two Judges referred to the judgment in M.S. Madhusoodhanan (supra), and drew the presumption in the facts of that case that the notice sent under postal certificate had been duly served for the purposes of Section 53(2) of the Companies Act, 1956, since the p .....

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under postal certificate. 23. Having seen the factual and the legal position, we may note that in the present case it has already been established that the Appellant had purchased the property out of her own funds. Therefore, it could certainly be expected that when she came to know about the clandestine sale of her property to Respondent No. 1, she would send him a notice, which she sent on 8.4.1987. As noted earlier, the notice is sent from one house on the College Road to another house on the .....

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al District Judge that Respondent No. 1 did receive the notice and, therefore, was not a bona fide purchaser for value without a notice. 24. The judgment of the High Court, therefore, deserves to be set aside. The Appellants through their counsel have, however, in all fairness offered to compensate the first Respondent herein by paying him the amount of ₹ 30,000/- with appropriate interest. The first Respondent did not evince any interest in this suggestion. Yet, the end of justice will be .....

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