TMI Blog2018 (11) TMI 1871X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the commencement of the Act and the provisions were held applicable to an appeal that was pending. In the matter of R. Rajagopal Reddy (Dead) by LRs and others v. Padmini Chandrasekharan (Dead) by LRs [ 1995 (1) TMI 67 - SUPREME COURT ] the Supreme Court in paragraph 11 of its judgment has clearly held that 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) of the Act of 1988. Undisputedly, the instant suit has been filed on 28.03.2017 after coming into force of the Act of 1988 and plaintiff is claiming title on the basis of Transaction which is said to have been taken place on 13.03.1981 and 09.06. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred by the petitioners, who are defendants before trial Court. 2. Mr. Viprasen Agrawal, learned counsel appearing for the petitioners/defendants submits that the trial Court is absolutely unjustified in answering the issue in negative holding that the issue No. 14 relates to mixed question of law and fact and it will be decided after recording the evidence of the parties and as such, the impugned order is liable to be set aside, as the said question is a pure question of law. 3. Mr. Rajkumar Pali, learned counsel appearing for respondents No. 1 2/plaintiffs, on the other hand, would support the impugned order and submits that the trial Court is absolutely justified in answering the issue in negative as the issue No. 14 relates to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f any benami transaction whether it has been entered into prior to coming into force of the Act of 1988 or after coming into force of the Act of 1988, such suit would be barred by virtue of the provisions contained in Section 4(1) of the Act of 1988. 8. The question as to whether bar would be applicable in suits which are filed after coming into force of the Act of 1988 has been considered by the Supreme Court in the matter of Duvuru Jaya Mohana Reddy and another v. Alluru Nagi Reddy and others AIR 1994 SC 1647 and it has been held that Section 4(1) of the Act of 1988 would apply to proceedings pending on the date of the commencement of the Act and the provisions were held applicable to an appeal that was pending. Similar is the proposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the face of the clear language of Section 4(1). It has to be visualised that the legislature in its wisdom has not expressly made Section 4 retrospective. Then to imply by necessary implication that Section 4 would have retrospective effect and would cover pending litigations filed prior to coming into force of the section would amount to taking a view which would run counter to the legislative scheme and intent projected by various provisions of the Act to which we have referred earlier. It is, however, true as held by the Division Bench that on the express language of Section 4(1) any right inhering in the real owner in respect of any property held benami would get effaced once Section 4(1) operated, even if such transaction had been ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 2 and declaration that he is the title holder. 12. Undisputedly, the instant suit has been filed on 28.03.2017 after coming into force of the Act of 1988 and plaintiff is claiming title on the basis of Transaction which is said to have been taken place on 13.03.1981 and 09.06.1988. This being so, the prohibition imposed under Section 4(1) of the Act of 1988 is squarely attracted as the plaintiff has filed the suit after coming into force of Act of 1988 in order to enforce his right under Benami Transaction which is specifically barred under Section 4(1) of the Act of 1988 and as such the plaint is barred by virtue of Order 7, Rule 11(d) of CPC, therefore, the trial Court is absolutely unjustified in holding that the said question is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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