TMI Blog1989 (2) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... is judgment dated March 13, 1974, decreed the suit declaring the plaintiff to be the sole and real owner of the suit house and permanently restraining the defendant from transferring the suit house to any other person. On first appeal by the defendant-appellant, the learned Additional District Judge, Lucknow, by his judgment dated December 23, 1974, dismissed the appeal agreeing with the findings of the trial court that it was the plaintiff respondent who paid the consideration and purchased the suit house benami in the name of the defendant-appellant who, therefore, had no right to create any equitable mortgage or to transfer the suit house. The defendant-appellant's second appeal thereafter was also dismissed by the High Court of Judicature at Allahabad by the impugned judgment dated March 27, 1978. Hence this appeal by special leave. Mr. A. B. Rohtagi, learned counsel for the appellant, submits, inter alia, that the learned courts below erred in holding that the suit house was not gifted by the plaintiff to the defendant but was held benami in her name ; and that even if it was so held benami, the subsequent legislation, namely, the Benami Transactions (Prohibition) Act, 1988 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of premises of which the respondents were the owners, this court did not interfere with the concurrent findings of fact. Mr. Rohtagi lays emphasis on the facts, namely, that the wife of the plaintiff, Prem Behari Khare, having died in 1955 leaving behind two sons aged about 2 and 3 years respectively, the plaintiff faced great difficulties in managing the household, looking after his sons and carrying on his duties as an employee of the Allahabad Bank ; that, under these circumstances, he agreed to take in the defendant Mithilesh Kumari whose relation with her husband, Ram Swarup, was then estranged ; that the relation between the plaintiff and the defendant came to be such that she bore him two children ; that there were efforts to legalise their de facto living as man and wife by obtaining the defendant's divorce from her husband, and in fact there was a decree for judicial separation in 1958 ; that the plaintiff had full confidence in, and affection towards, the defendant; and that in the court he could give no reason why he purchased the house in the name of the defendant. Under those circumstances, counsel submits, the purchase of the suit house in the name of the def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial leave to appeal was granted by this court on November 15, 1978. The Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988, hereinafter referred to as "the Ordinance", was promulgated on May 19, 1988, to come into force at once. The Benami Transactions (Prohibition) Act, 1988 (45 of 1988), hereinafter referred to as "the Act", received the assent of the President of India on September 5, 1988. The provisions of sections 3, 5 and 8 of the Act came into force at once on that date and the remaining provisions were to be deemed to have come into force on May 19, 1988. It is an Act to prohibit benami transactions and the right to recover property held benami and matters connected therewith or incidental thereto. Mr. Rohtagi submits that the provisions of the Act cover past benami transactions also and that to hold so it would be permissible for this court to refer to the 57th Report of the Law Commission of India wherein it was suggested that the legislation should not be applied to past transactions but that Parliament did not accept that suggestion, and made the law applicable to past transactions also. Learned counsel for the respondent submits t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." Having upheld the finding that the suit house has been held benami by the respondent in the name of the appellant, the question is whether to this transaction, the Act shall be applicable. The Act has not been made retrospective by any specific provision. Is it permissible to refer to the Law Commission's Report to ascertain the legislative intent behind the provision ? We are of the view that where a particular enactment or amendment is the result of a recommendation of the Law Commission of India, it may be permissible to refer to the relevant report as in this case. What importance can be given to it will depend on the facts and circumstances of each case. In Santa Singh v. State of Punjab [1977] 1 SCR 229. Fazal Ali J., in order to answer the question whether the non-compliance with the provisions of section 235(2) of the Criminal Procedure Code, 1973, vitiated the sentence passed by the court, considered it necessary to trace the historical background and social setting under which section 235(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 1988), "to prohibit the right to recover property held benami and for matters connected therewith and incidental thereto" based on the suggestion of the Law Commission of India made as far back as in 1973. With this Ordinance, the judicial acceptance of benami transactions was being removed with a view to help people keep property they were holding for others. It remedied the age old doctrine of benami and made a benamidar the real owner in law, of course with a few exceptions. The Ordinance was referred by the Government on July 22, 1988, to the Law Commission of India requesting the latter to take up the question of benami transactions for detailed examination and to give its considered views as early as possible so that a Bill to replace the Ordinance could be drafted on the basis of its recommendations and got passed before the close of the monsoon session of Parliament. The 130th Report of the Law Commission was submitted to the Government on August 14, 1988. The Benami Transactions (Prohibition) Bill, 1988, drafted after getting the report, was introduced in the Rajya Sabha on 31st August, 1988, and the Bill was passed. The Law Commission devoted several pages to justify ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the court has to be satisfied that the statute is in fact retrospective. The presumption against retrospective operation is strong in cases in which the statute, if operated retrospectively, would prejudicially affect vested rights or the illegality of past transactions, or impair contracts, or impose a new duty or attach a new disability in respect of past transactions or consideration already passed. However, statute is not properly called a retrospective statute because a part of the requisites for its action is drawn from a time antecedent to its passing. We must look at the general scope and purview of the statute and at the remedy sought to be applied, and consider what was the former state of law and what the legislation contemplated. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive. But laws made justly and for the benefit of individuals and the community as a whole, as in this case, may relate to a time antecedent to their commencement. The presumption against retrospectivity may in such cases be rebutted by necessary implication from the language employed in the statute. It cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espective of its date or duration. Section 3, subject to the exceptions, states that no person shall enter into any benami transaction. This section obviously cannot have retrospective operation. However, section 4 clearly provides that 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-This naturally relates to past transactions as well. The expression "any property held benami" is not limited to any particular time, date or duration. Once the property is found to have been held benami, no suit, claim or action to enforce any right in respect thereof shall lie. Similarly, sub-section (2) of section 4 nullifies the defences 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 in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. It means that once a property is found to have been held benami, the real owner is bereft of any defence against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be pending ? Lachmeshwar v. Keshwar Lal, AIR 1941 FC 5 is an authority for holding that the hearing of appeal under the procedural law of India is in the nature of re-hearing and therefore in moulding the relief to be granted in a case on appeal, the appellate court is entitled to take into account even facts and events which have come into existence after the passing of the decree appealed against. Consequently, the appellate court is competent to take into account legislative changes since the decision under appeal was given and its powers are not confined only to see whether the lower court's decision was correct according to the law as it stood at the time when its decision was given. Once the decree of the High Court has been appealed against, the matter became sub judice again and thereafter this court had seisin of the whole case, though for certain purposes, e.g., execution, the decree was regarded as final and the courts below retained jurisdiction in that regard. This was followed in Shyabuddinsab v. Gadag Betgeri Municipal Borough [1955] 1 SCR 1268, where, after the judgment of the High Court and after grant of special leave by this court, the legislation was passed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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