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TMI Blog1997 (11) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... 97, allowing the appeal of Mahesh Dutt Gupta and granting probate in respect of the will dated December 18, 1972, of Rebti Devi in his favour. Learned counsel for the petitioners in the S. L. P. has fairly stated that the S. L. P. and IA No. 1 of 1996 therein are not being pressed. Therefore, we are left only with Civil Appeal No. 6486 of 1983 and in view of the dismissal of the S. L. P. Mahesh Dutt Gupta can continue the said civil appeal in the place of his deceased mother, Rebti Devi. The result also is that Mahesh Dutt can also claim as heir to such interest which Rebti Devi has, even if her case of being the real owner of the property is rejected once again in this court. Suit No. 1263 of 1968 out of which the civil appeal arises was filed by Smt. Rebti Devi for possession of property from the occupation of one of her sons, Ram Dutt Gupta. The plaintiff has impleaded Ram Dutt Gupta as the first defendant and his son, Surendra Nath Gupta, as the second defendant. She claimed that she purchased the suit property on June 1, 1955, under a registered sale deed for Rs. 5,000 out of the money acquired by sale of her jewellery and ornaments and money given to her by her relatives and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t did not call for any interference under article 136 of the Constitution of India. It was also submitted that R. Rajagopal Reddy's case, [1995] 213 ITR 340 (SC), holds good and has not been doubted in Nand Kishore Mehra's case [1995] 215 ITR 218 (SC). So far as the first submission of the appellant's counsel is concerned, we are of the view that it is true that the respondents-defendants who have raised a defence of benami in their written statement have to discharge the initial burden of proof and establish the plea of benami. The parties adduced oral and documentary evidence. The lower appellate court had considered the evidence adduced by both the sides and arrived at a conclusion that the defendants had discharged the said burden. When both the sides had adduced evidence, the question of burden of proof pales into insignificance. The High Court was, therefore, right in not interfering with the said finding. The said finding of fact cannot be canvassed in this civil appeal by the plaintiff or her legal representative. In order to appreciate the second submission, we have to start here with R. Rajagopal Reddy's case [1995] 213 ITR 340 (SC), and find out what is actually decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at such a defence could not be decided after May 19, 1988, even though the plea was raised before May 19, 1988. (4) Fourthly, if such an interpretation as stated in (1) to (3) was given, it could not be validly contended that a question of invalid discrimination arose between cases where suits were filed on or before May 19, 1988, and those filed after May 19, 1988. (5) Fifthly, even though the word 'suit' might include appeal or further appeals, section 4(l) and 4(2) could not be made applicable to these subsequent stages. (6) Sixthly, pleas by plaintiffs or applicants and defences after May 19, 1988, of the real owners against benamidars were barred under section 4(1) and section 4(2), only to the extent indicated above." This in substance is what was decided in R. Rajagopal Reddy's case [1995] 213 ITR 340 (SC). We shall now take up Nand Kishore Mehra's case [1995] 215 ITR 218 (SC). As we shall presently show, that case was concerned with a different factual situation and different legal principles. We have sent for the record in that case and find that there the suit was filed on January 24, 1992 (i.e., after May 19, 1988), by the appellant pleading that he purchased the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven though the plaint was filed after May 19, 1988, such a plea of benami was not shut out. This court directed that the suit be disposed of of course by applying the statutory presumption contained in section 3(2) which is to be mandatorily drawn but which is rebuttable. The plaintiff in a suit filed after May 19, 1988, could still prove that the property had not been purchased by him for the benefit of his wife and he could rebut the presumption, and claim that he was the real owner. Therefore, to the six principles hereinbefore culled out from R. Rajagopal Reddy's case [1995] 213 ITR 340 (SC), the following further principles decided in Nand Kishore Mehra's case [1995] 215 ITR 218 (SC) can be added : "(7) Seventhly, if in a suit, claim or action a plea or defence based on benami is raised even after May 19, 1988, and the purchase is in the name of a wife or unmarried daughter, such a plea of benami is permissible and R. Rajagopal Reddy's case [1995] 213 ITR 340 (SC), will not come in the way merely because the plea is raised after May 19, 1988. Such a plea if raised, will however, have to be decided taking into account the statutory presumption laid down in section 3(2). This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e May 19, 1988, and it was not barred under the Act. This court then proceeded to decide the case on the merits, dismissing the plaintiff's appeal. Sankara Hali and Sankara Institute of Philosophy and Culture v. Kishori Lal Goenka [1996] 7 SCC 55, decided on December 6, 1994, is by a three-judge Bench. It was decided before R. Rajagopal Reddy's case [1995] 213 ITR 340 (SC), but is reported later. In a way it took the same view as in R. Rajagopal Reddy's case [1995] 213 ITR 340 (SC). It noticed that sections 3, 5 and 8 of the Act came into force at once, i.e., September 5, 1988, and the remaining provisions came into force from May 19, 1988. It was held that the plea of benami was raised before May 19, 1988, and that the objection that the deed of release dated December 24, 1964, by the benamidar in favour of the firm was invalid because of the Act, could not be permitted to be raised after May 19, 1988. In that case, the rent control proceedings started around 1970 and the plea of benami was raised and was also proved by the firm, the real owner, by relying on the release deed dated December 24, 1964, executed by the benamidar in favour of the firm. The objection that the deed wa ..... 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