9911796707
TMI Blog2020 (9) TMI 754X X X X Extracts X X X X X X X X Extracts X X X X ..... m service in the year 1975. They had birth to one son and two daughters. Her son died in the year 1986 leaving behind his mother, namely the first plaintiff, two sisters and his wife along with three minor children, namely defendants 2 to 4. The first plaintiff is the mother of the said Viswanathan and the second and third plaintiffs are her daughters. The deceased Panchacharam left only the house property and immovables namely 30 sovereigns of gold. All the properties were maintained by his son Viswanathan. The first plaintiff's husband received terminal benefits of Rs. 9444/- He purchased the suit property in the name of the first defendant's husband, namely their son as benami for the benefit of the plaintiffs. In fact, their son had not paid a single paise to purchase the suit property in the name of their son P.Viswanathan. It is only a benami transaction. The suit property was purchased from one Majan Bi Ammal on 29.09.1977. All the transactions were executed by the said Panchacharam and purchased the suit property in the name of Viswanathan. In the year 1981, the said Panchacharam died leaving behind the plaintiffs and their only son, Viswanathan, namely the husband of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it revealed that the defendants 1 to 4 are the only legal heirs of the deceased Viswanathan. In fact, the first defendant mortgaged the suit property in favour of Vellala Cooperative Bank and borrowed loan. The recitals of the said mortgage deed clearly says that the defendants 1 to 4 alone are the legal heirs of the late Viswanathan. Therefore, the fifth defendant is the bonafide purchaser for value without notice of the alleged claim of the plaintiffs. The fifth defendant had no knowledge about the pendency of the suit between the plaintiffs and the defendants 1 to 4. Only to nullify the sale deed, the plaintiffs took stand that the earlier transaction was a benami transaction and the suit property was purchased by the husband of the first plaintiff in the name of the husband of the first defendant, which is false. The husband of the first defendant had enough income and resources to purchase the suit property as such it is a self acquired property. It is significant to note that the plaintiffs have not whispered anything about the motive of Panchacharam to purchase the suit property in the name of his son P.Viswanathan, who was in possession and enjoyment of the suit property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide the judgment and decree passed by the trial court and remanded the matter back to trial court for fresh trial, and insofar as other plaintiffs dismissed the suit. 6. The trial court thereafter framed issues as directed by the first appellate court and allowed the suit insofar as partition is concerned and dismissed the prayer for permanent injunction. Aggrieved by the same, the fifth defendant preferred appeal suit in AS.No.211 of 1999 before the VII Additional City Civil Court, Chennai and the same was also dismissed and confirmed the judgment and decree passed by the trial court. Aggrieved by the same, the fifth defendant preferred this second appeal. 7. At the time of admission of the second appeal, the following substantial questions of law were framed: (i) When presumption in law is that the person in whose name the property stands is the real owner and the plaintiffs failed to rebuted the presumption by placing evidence regarding source of money motive, nature and possession and dealing with the property after purchase and non production of title deeds whether the courts below are correct in upholding the claim of Benami transaction by the plaintiffs on the basis of o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te court for framing the issues in respect of other plaintiffs' shares as they are the legal heirs of the said Panchacharam, namely the husband of the first plaintiff. Thereafter, the trial court framed proper issues and allowed the suit insofar as partition is concerned and declared that the plaintiffs 1 to 3 are entitled to have their ¾ share in the suit property along with the first defendant. The plaintiffs categorically proved that the suit property was purchased only from the income of the husband of the first plaintiff as well as the father of the second and third plaintiffs. It is nothing but benami transaction and at the time of purchase of the suit property, namely on 29.09.1977 the husband of the first defendant had no income and there was absolutely no sources of income to purchase the property. The first plaintiff's husband was in employment at M/s.Gillandors Abruthnot & Co for very good salary of Rs. 600/- per month and he was retired on 28.04.1975 with a terminal benefit of Rs. 9444/-. Only from the terminal benefits and savings, the suit property was purchased by the husband of the first plaintiff on 29.09.1977 from one, Majan Bi Ammal for valid sale con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n O.S.No.2735 of 1986, there was a compromise between them and the first plaintiff received amount insofar as her share from the terminal benefits of the deceased son. The plaintiffs examined P.W.2, namely the vendor of the suit property, and she categorically deposed that the suit property was purchased by the husband of the first plaintiff for sale consideration of Rs. 7,000/-. The husband of the first plaintiff only paid sale consideration to her husband by two payments i.e. Rs. 4,000/- and Rs. 3,000/-. The first defendant never entered into the witness box and deposed to prove the purchase of the suit property by her husband. It was stated that she was ill and she was unable to depose, but documents were produced to substantiate their stand. Further, the husband of the first plaintiff was retired from service in the year 1975 and he also received a monthly salary of Rs. 600/- and thereafter he received a sum of Rs. 9,444/- as his terminal benefits. Thereafter in the year 1977, the suit property was purchased in the name of the husband of the first defendant. Therefore, the trial court rightly concluded that the entire transaction is binami in nature and the husband of the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... execution of the decree in favour of the appellant was pending when the Ordinance came into force, Ordinance/Act, which is not retrospective in operation, will not apply in this case - Trusts Act, 1882, S.82. B. Benami Transactions (Prohibition of Right to Recover Property) Ordinance, 1988 - S.1 - Retrospectivity - Neither the Ordinance nor the Act which replaced it retrospective in operation - Hence not applicable to pending proceedings 15. He also relied upon the judgment in the case of G.Mahalingappa Vs. G.M.Savitha reported in (2005) 6 SCC 441, the head note of which is extracted hereunder: A. Benami Transactions (Prohibition) Act, 1988 - S.4(2) - Nature of the Act and its applicability - The Act, held, is prospective except to a certain extent S.4(2) is retrospective to the extent that after its commencement the bar on the plea of defence postulated therein would apply even in respect of a past benami transaction - In the present case, father purchasing property in the name of his minor daughter from his own funds - Subsequently, daughter filing a suit for declaration of her title to, and for recovery of possession, of the said property - Defendant father in his written s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son. Section 3(1) and (2) of the said act read as follows: 3. Prohibition of benami transactions- (1) No person shall enter into any benami transaction. (2) Nothing in sub-section (1) shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter. Section 4 of the said Act prohibits the rights to recover the property held benami, which reads as under: 4. Prohibition of the right to recover property held benami- (1) 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. (2) 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 be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. 18. In this regard, the learned counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 of future benami transactions. We are not concerned with subsection (2) but sub-section (3) of Section 3 also throws light on this aspect. As seen above, it states that whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with find or with both. Therefore, the provision creates a new offence of entering into such benami transaction. It is made non-cognizable and bailable as laid down under subsection (4) It is obvious that when a statutory provision creates new liability and new offence, it would naturally have prospective operation and would cover only those offences which take place after Section 3(1) comes into operation." (Underlining is ours). 18. In paragraph 11 of the said decision of this Court, the Supreme Court further observed "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 file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 22. Therefore, we are now to consider in this case whether the facts disclosed would indicate that even after coming into force of the Act the defence under Secion 4 can be available. 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. It is true that the judgment of the trial court was delivered after the Act had come into force but that could not fetter the right of the appellant to take the plea of benami in his defence. Since the Act cannot have any retrospective operation in the facts and circumstances of the present case, as held by ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
