TMI Blog2018 (3) TMI 642X X X X Extracts X X X X X X X X Extracts X X X X ..... nsactions (Prohibition) Act, 1988 but the Prohibition of Benami Property Transactions Act, 1988 Held that: - A reading of the provision of Section 2(9)(A)(b)(iv) of the Prohibition of Benami Property Transactions Act, shows that no doubt there can be a transaction, which will not be a benami transaction, if the same is entered into between sisters, but the precondition for applicability of the exception in Section 2(9)(A)(b)(iv) of the Prohibition of Benami Property Transactions Act, is that a person who claims entitlement to a property by the same falling in the exception of Section 2(9)(A)(b)(iv), is a person who is shown as a joint owner in any document, i.e. a document besides the title deeds of the property - In the present case, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugning the judgment of the Trial Court dated 11.8.2017 by which the trial court has dismissed the counter claim as being barred by the Benami Transactions (Prohibition) Act, 1988. I may note that with effect from 1.11.2016 the Benami Transactions (Prohibition) Act, 1988 was amended and the new Act is now called as the Prohibition of Benami Property Transactions Act, 1988. Since the new Act has now become applicable with effect from 1.11.2016 and the counter claim was filed by the appellant nos. 1 and 2 /defendant nos. 1 and 2 in May, 2017, therefore what will govern the parties is not the Benami Transactions (Prohibition) Act, 1988 but the Prohibition of Benami Property Transactions Act, 1988. 2. By the subject suit the respondents/plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Benami Transactions (Prohibition) Act, 1988 as it stood was repealed in terms of the Amended Act which came into force with effect from 1.11.2016 and what was contained in some part of sub-sections (3) of Section 4 of the Benami Transactions (Prohibition) Act, 1988 as originally stood was incorporated in the definition of Benami Transaction as found in Section 2(9) of the Prohibition of Benami Property Transactions Act. This provision of Section 2(9) of the Prohibition of Benami Property Transactions Act, 1988 is reproduced as under:- (9) benami transaction means,- (A) a transaction or an arrangement- (a) where a property is transferred to, or is held by, a person, and the consideration for such property has been prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or made in a fictitious name; or (C) a transaction or an arrangement in respect of a property where the owner of the property is not aware of, or, denies knowledge of, such ownership; (D) a transaction or an arrangement in respect of a property where the person providing the consideration is not traceable or is fictitious; Explanation .-For the removal of doubts, it is hereby declared that benami transaction shall not include any transaction involving the allowing of possession of any property to be taken or retained in part performance of a contract referred to in section 53A of the Transfer of Property Act, 1882, if, under any law for the time being in force,- (i) consideration for such property has been provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nos. 1 and 2/counter-claimants have not claimed to be trustees, executors or partners or directors of company, etc. as per the meaning of these expressions in Section 2(9)(A)(b)(ii) the Prohibition of Benami Property Transactions Act. 6. Let us now examine as to whether appellant nos. 1 and 2 /defendant nos. 1 and 2 can take benefit of Section 2(9)(A)(b)(iv) of the Prohibition of Benami Property Transactions Act, 1988. 7. A reading of the provision of Section 2(9)(A)(b)(iv) of the Prohibition of Benami Property Transactions Act, shows that no doubt there can be a transaction, which will not be a benami transaction, if the same is entered into between sisters, but the precondition for applicability of the exception in Section 2(9)(A)(b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Benami Property Transactions Act, to claim that they are exempted from the bar of the case pleaded by them being hit as a benami transaction under the Act. 8. In view of the aforesaid discussion, the impugned judgment of the trial court is upheld by holding that the claim of the appellant nos. 1 and 2 /defendant nos. 1 and 2 to the suit property is a claim based upon a benami transaction, and which transaction does not fall in the exceptions contained in Section 2(9)(A)(b)(i) to (iv) of the Prohibition of Benami Property Transactions Act, 1988. Thus for the completely independently reasoning given by this Court than as given in the impugned judgment, and which independent reasoning this Court is always entitled to in terms of Order XLI R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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