9911796707
TMI Blog2019 (1) TMI 1147X X X X Extracts X X X X X X X X Extracts X X X X ..... as the Amended Act has been held to not have retrospective application. 3. The limited issue is that whether the suit filed by the appellant/plaintiff, who is the father of the respondents/defendants (respondents/defendants being the sons and daughters of the appellant/plaintiff), claiming rights in the suit property no. G-6, Shop no. 7, Dilshad Colony, Delhi- 110095 by seeking reliefs of declaration, possession, use and occupation charges etc. as barred by the provisions of the unamended Act and as to whether the provisions of the Amended Act apply or the provisions of the unamended act. 4. The present issue arises because the appellant/plaintiff claims that though the registered Sale Deed dated 26.11.2001 of the suit property was in the name of his wife Smt. Khursheed Begum and the three sons, namely Mohd. Tahir (defendant no. 1), Mohd. Zahid (defendant no. 2) and Nadeem Ur Rehman (defendant no. 6), but since only the appellant/plaintiff had paid the entire sale consideration for purchasing the suit property, and therefore it was the appellant/plaintiff who was the actual owner of the suit property. 5. Let us now examine as to whether the trial court has rightly held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Sections 3 and 4 of the unamended Act has referred to the judgments passed by this Court in the cases of Sh. Amar N. Gugnani v. Naresh Kumar Gugnani (Through Legal Heirs) in CS No. 478/2004 decided on 30.07.2015 and JM Kohli v. Madan Mohan Sahni & Anr in RFA No. 207/2012 decided on 07.05.2012 and these judgments held that what was prohibited by the unamended Act and was the subject matter of the repealed Sections 81, 82 and 94 of the Indian Trusts Act, 1882, such prohibitions cannot be brought in as exceptions to prohibited benami transactions by getting them included in the expressions 'fiduciary capacity' or 'trustee' found in the repealed provision of Section 4(3) of the unamended Act. Alongwith this reasoning, the trial court, and as stated above, held that the provisions of the Amended Act are only prospective in nature and not retrospective, and therefore the Amended Act, would not assist the appellant/plaintiff and no benefit of the new Act can be taken by the appellant/plaintiff. 6(ii). The provisions of the Amended Act are not referred to in the impugned judgment and the provision(s) of the Amended Act would be the definition of 'benami transaction' and various excep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontract 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 by the person to whom possession of property has been allowed but the person who has granted possession thereof continues to hold ownership of such property; (ii) stamp duty on such transaction or arrangement has been paid; and (iii) the contract has been registered." 7(i). In my opinion, the trial court has clearly erred in holding that the provisions of the Amended Act will not apply because the issue of prospective operation would only arise if some vested right created by the unamended Act is sought to be taken away by the Amended Act. There has to be a specific vested right and such vested right would not be taken away by a repeal of the earlier provision, and this is so because of Section 6 of the General Clauses Act, 1897. 7(ii). The issue is as to whether the exceptions stated in the unamended provision of Section 4(3) of the unamended Act created a vested right in favour of the respondents/defendants. 7(iii). In my opinion, there does not arise any issue as regards the retrospective applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'fiduciary capacity' and 'trustee', such alleged existing earlier exclusions in the expressions 'fiduciary capacity' and 'trustee' became in the Amended Act allowed as non-prohibited transactions. But, that is not so, inasmuch as, there were no definitions/meaning given to the expressions 'fiduciary capacity' and 'trustee' in the repealed provisions of Section 4(3) prescribing the exclusions to these expressions which will thus not be exempted as not being benami, being fiduciary/trustee transactions. Once that is so, therefore, in my opinion, there did not exist any vested right, and hence, there does not arise any issue of taking away of any vested right on account of the Amended Act giving definitions and meaning to the expressions 'fiduciary capacity' and 'trustee' by the four exceptions (and one Explanation) to prohibited benami transactions as prescribed in Section 2(9) of the Amended Act. 8. In view of the aforesaid discussion, I cannot agree with the ratio of the judgment of the Bombay High Court in the case of Shri Joseph Isharat v. Mrs. Rozy Nishikant Gaikwad in Second Appeal No. 749/2015 decided on 01.03.2017, which was cited on behalf of respondents/defendants that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
