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TMI Blog2022 (6) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... vour of the appellant under Ex.B1 dated 10.12.1997 was marked. After consideration of the evidence on record, the trial court by judgment and decree dated 27.03.2002 dismissed the suit. Challenging the same, the plaintiff filed A.S.No.57 of 2003 before the Sub Court, Sivagangai. By the impugned judgment and decree dated 25.02.2005, the decision of the Trial Court was reversed and the appeal was allowed and preliminary decree was passed allotting 1/6th share in the suit property in favour of the plaintiff. Challenging the same, this second appeal came to be filed. 3.The second appeal was admitted on 26.07.2010 on the following substantial questions of law:- "1.Whether the Benami Prohibition Act is not retro-active and retrospective? 2.Is the Court below correct in presuming the joint family income, when there is no proof of availability of joint family property or income? 3.Was not the lower Appellate Court wrong in presuming the joint family acquisition? 4.What is the scope and effect of the various provisions of the Benami Prohibition Act 7 of 1998 on the suit transaction ? 5.Is the plaintiff not estopped from making claim against the bonafide purchaser for value, by 5t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inful employment. She was only a house wife. She had no other source of income. The suit property was purchased for a sum of Rs.18,700/- in the year 1981. Umayal Ammal was only a name lender and nothing else. The Trial Court after giving such a finding in favour of the plaintiff dismissed the suit by invoking the statutory bar contained in Section 4(3) of the Prohibition of Benami Property Transactions Act, 1988. 11.The first substantial question of law formulated at the time of admission had already been answered by the Hon'ble Supreme Court in the decision reported in 1995 2 SCC 630 (R. Rajagopal Reddy (Dead) by L.Rs. and Ors. vs. Padmini Chandrasekharan (Dead) by L.Rs.) in the following terms:- "Before we deal with these six considerations which weighed with the Division Bench for taking the view that Section 4 will apply retrospectively in the sense that it will get telescoped into all pending proceedings, howsoever earlier they might have been filed, if they were pending at different stages in the hierarchy of the proceedings even upto this Court, when Section 4 came into operation, it would be apposite to recapitulate the salient feature of the Act. As seen earlier, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would apply even to such pending suits which were already filed and entertained prior to the date when the Section came into force and which has the effect of destroying the then existing right of plaintiff in connection with the suit property cannot be sustained in 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 entered into prior to the coming into operation of Section 4(1), and hence-after Section 4(1) applied no suit can lie in respect to such a past benami transaction. To that extent the Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There is no question of the principle of estoppel operating against the plaintiff. If by his conduct, the plaintiff had induced the other party to do or refrain from doing an act, the plaintiff cannot be allowed to go back on the same. But in this case, even before the first alienation took place, the plaintiff had filed the suit. The appellant was the purchaser from an alienee. The appellant did not purchase from the plaintiff's mother Umayal Ammal. In that event, she can be considered as a bonafide purchaser. The appellant had purchased from the 4th defendant in the suit. Therefore, the question of the plaintiff being estopped will not arise. The fifth substantial question of law is also answered against the appellant. 14.The un-amended Section 4 of the Act is as follows:- "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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld presume that the purchase was for the benefit of Umayal Ammal and it was not a benami purchase. Of-course, the presumption is rebuttable. To rebut the statutory presumption, there must be firm foundation in pleadings as well as evidence. In the pleadings, there is no averment that Umayal Ammal held the property for the benefit of the joint family members. Umayal Ammal examined herself as D.W.3 and not even a suggestion has been put in this regard. This is a clear case of complete lack of pleadings and lack of proofs. The very purpose of enacting the Central Act 45 of 1988 is to prohibit the benami transactions. Of-course, the statute carved out certain exceptions. But then, every benami transaction cannot be allowed to be sustained by bringing it within the scope of the exceptions. 17.The Hon'ble Delhi High Court in Peeyush Aggarwal Vs. Sanjeev Bhavnani (2013 SCC ONLINE DEL 2397) observed as follows:- "25. Even otherwise I am unable to see as to how the case built by the plaintiff does not fall in the trap of benami. The case in nutshell of the plaintiff is of the shares (which are property within the meaning of Section 2(c) of the Benami Act) though in the name of the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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