TMI Blog2017 (3) TMI 1618X X X X Extracts X X X X X X X X Extracts X X X X ..... may at the most suggest that it was the Defendant who held such position of trust or fiduciary capacity. It cannot be suggested that the Plaintiff was either a trustee or a person standing in a fiduciary capacity, vis- -vis the Defendant, holding the property for the benefit of the Defendant. There is, accordingly, no merit whatsoever in this contention. Appeal dismissed - decided against appellant. - Second Appeal No. 749 of 2015 and Civil Application No. 1428 of 2015 - - - Dated:- 1-3-2017 - S.C. Gupte, J. For Appellant: Mohan Pungliya And Abhishek Pungliya For Respondents: Anil V. Anturkar and Abhay A. Anturkar,. Rushkesh Chandrashekhar Barge-Patil JUDGMENT S.C. Gupte, 1. The second appeal challenges a judgment and order passed by the District Court at Pune in Civil Appeal No. 10/2013. By the impugned judgment and order, the learned District Judge dismissed the civil appeal and confirmed the decree passed by the court of Civil Judge, Senior Division, Pune in the Respondent's suit directing the Appellant to hand over vacant and peaceful possession of the suit property to the Respondent and permanently restraining the Appellant from preventing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat after the Plaintiff's return from Saudi Arabia, she raised a dispute about the suit property and claimed ownership thereof. After filing of a police complaint in that behalf, the Plaintiff filed the present suit claiming possession of the suit property and perpetual injunction against the Defendant in respect thereof. The trial court decreed the Plaintiff's suit by ordering delivery of possession and perpetual injunction against the Defendant. This order was confirmed in appeal by the District Court at Pune. Being aggrieved, the Defendant has come before this court in the present second appeal. 3. Mr. Pungalia, learned Counsel for the Appellant, makes the following submissions in support of the appeal: (a) It is submitted that the applicable provisions of law concerning the Defendant's plea of purchase made nominally in the name of the Plaintiff are those that are contained in Benami Transactions (Prohibition) Act, 1988 ( Benami Act ) as amended by the Benami Transactions (Prohibition) Amendment Act, 2016. Learned Counsel submits that second appeal is a continuation of the original lis between the parties by way of suit and that the prohibition contained in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person shall enter into any benami transaction. Sub-section (2) contained two exceptions to the prohibition contained in sub-section (1). The first exception, contained in clause (a) of sub-section (2), was in respect of purchase of property by any person in the name of his wife or unmarried daughter. In the case of such purchase, it was to be presumed, unless the contrary was proved, that the property was purchased for the benefit of the wife or unmarried daughter, as the case may be. Simultaneously, Section 4 of the Benami Act contained a prohibition in respect of right to recover property held benami. Sub-section (1) provided 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 other person, shall lie by or on behalf of a person claiming to be the real owner of such property. Sub-section (2) made provisions likewise in respect of a defence based on a plea of benami transaction. Sub-section (2) provided that no defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er or lineal ascendant or descendant where the names of such brother or sister or lineal ascendant or descendant, as the case may be, and the individual appear as joint owners in any document. Sub-section (1) of Section 3 contains the very same prohibition as under the unamended Act, in that it prohibits all benami transactions. Section 4 likewise prohibits suits, claims or actions or defences based on the plea of benami as in the case of the unamended Act. The submission is that under this scheme of law, step-daughter not having been defined under the Benami Act, but having been defined under the Income Tax Act, 1961, by virtue of sub-section (31) of Section 2 of the amended Benami Act, the meaning of the expression will be the one assigned to it under the Income Tax Act. The definition of daughter under the Income Tax Act admits of a step-child within it. It is submitted that under the amended definition of benami transaction , thus, there is a clear exception in respect of a purchase made in the name of a step-daughter by an individual provided, of course, the consideration has been provided or paid out of known sources of the individual. 5. The central question before the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstantive rights, then prima facie it will only have a prospective application unless the amended law speaks in a language which expressly or by clear intention, takes in even pending matters. . Short of such intendment, the law shall be applied prospectively and not retrospectively. 8. As held by the Supreme Court in the case of R. Rajagopal Reddy v. Padmini Chandrasekharan (1995) 2 SCC 630, Section 4 of the Benami Act, or for that matter, the Benami Act as a whole, creates substantive rights in favour of benamidars and destroys substantive rights of real owners who are parties to such transaction and for whom new liabilities are created under the Act. Merely because it uses the word it is declared , the Act is not a piece of declaratory or curative legislation. If one has regard to the substance of the law rather than to its form, it is quite clear, as noted by the Supreme Court in R. Rajagopal Reddy, that the Benami Act affects substantive rights and cannot be regarded as having a retrospective operation. The Supreme Court in R. Rajagopal Reddy also held that since the law nullifies the defences available to the real owners in recovering the properties held benami, the law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Shaikh Ahmed Shaikh Mohamed Ashraf v. Bai Fatma AIR (30) 1973 Bom.48. Black's Law Dictionary defines daughter as a parent's female child; female child in a parent-child relationship. This decision would take within its hold only natural born or adoptive daughter. The decision of Murphy v. Ingram has no bearing on the controversy before us. In that case, the court was construing the expression child in Section 212(4) of the (English) Income Tax Act, 1952. The question before the court was whether after her marriage, the daughter ceased to be a child for the purposes of Section 212(4) of that Act. The court held that a married daughter did not cease to be a child. To the same effect is the decision in the case of Shaikh Ahmed Shaikh Mohamed Ashraf. Here the question was whether the expression child used in Section 488 of the Criminal Procedure Code has anything to do with the age of the child. The court held that the expression child may be used sometime in a context which would suggest that the expression refers to a young child. Where the word child , however, is used with reference to parentage, it means descendant of the first degree, a son or a dau ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
