2005 Supreme(SC) 1020

2005(5) Supreme 683
Supreme Court of India
(From Karnataka High Court)
D.M. Dharmadhikari and Tarun Chatterjee, JJ.
G. Mahalingappa —Appellant
versus
G.M. Savitha —Respondent
Civil Appeal No. 2867 of 2000
Decided on 9-8-2005
Counsel for the Parties :
For the Appellant : G.V. Chandrasekhar and P.P. Singh, Advocates.
For the Respondent : N.D.B. Raju, Guntur Prabhakar and Ms. Bharathi, Advocates.

Important points
1. High Court is not justified in interfering with the concurrent findings of fact arrived at by the appellate Court as well as the trial Court which findings were rendered on consideration of the pleadings as well as the material evidence on record.2. The Benami Transaction (Prohibition) Act is prospective in nature and it has no retrospective operation.

Headnote:Benami Transaction (Prohibition) Act, 1988—Sections 2(a), 3(1), (2), 4(2)—Prohibition of benami transaction—Question of retrospectivity of Section 4(2) of the Act—Plea of benami filed by appellant long before the Act had come into force—Defence u/s 4(2) of the Act held not available—Appellant purchased suit property in the name of his daughter, respondent when she was a minor of seven years of age—Subsequently, respondent filed suit for declaration of title and recovery of possession alleging that suit property stood in her name and that it was purchased for the benefit of respondent—According to appellant, suit property was purchased by his own funds in the benami of her daughter—After the suit pro­perty was purchased in benami of respondent, appellant made improvement of suit property—Original title deeds were with appellant—Circumstances surrounding the transaction, relationship of parties and subsequent conduct of appellant show that the transaction was benami in nature—Appellate Court as well as the trial Court dismissed suit of respondent—Whether High Court was justified in setting aside the concurrent decisions—(No)—Even if presumption u/s 3(2) of the Act arose ­because of purchase of property by the father in the name of his daughter, that presumption got rebutted—Appellant had successfully succeeded in proving that suit property was purchased in benami of respondent for his own benefit—Civil Procedure Code, 1908—Section 100—Second appeal.

       Held : Since in this case, we are concerned with the question whether the appellant was entitled to raise the plea of benami in his defence in view of the bar imposed in Section 4(2) of the Act, let us now confine ourselves to the bar imposed in Section 4(2) of the Act of taking this plea in his defence and to the question of retrospective operation of this section or this provision is prospective in operation. Now, therefore, the question arises is whether under section 4(2) of the Act, defence can be allowed to be raised 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 or on behalf of a person claiming to be real owner of such property. (Paras 16 and 17)

       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 this Court in the aforesaid decision, we are therefore of the view that the appellant was entitled to raise the plea of benami in the written statement and to show and prove that he was the real owner of the suit property and that the respondent was only his benamidar. (Para 21)

       Section 3 deals with Prohibition of benami transaction. Sub-section (1) clearly prohibits that no person shall enter into benami transaction. However, sub-section (2) of Section 3 clearly says that nothing in sub-section (1) shall apply to purchase of property of any person in the name of his wife, unmarried daughter and it shall be presumed, unless the contrary is proved, that suit property had been purchased for the benefit of the unmarried daughter. Section 3(2) makes it abundantly clear that if a property is purchased in the name of an unmarried daughter for her benefit, that would only be a presumption but the presumption can be rebutted by the person who is alleging to be the real owner of the property by production of evidences or other materials before the court. In this case, the trial court as well as the appellate court concurrently found that although the suit property was purchased in the name of the respondent but the same was purchased for the interest of the appellant. We are therefore of the opinion that even if the presumption under section 3(2) of the Act arose because of purchase of the suit property by the father (in this case appellant) in the name of his daughter (in this case respondent), that presumption got rebutted as the appellant had successfully succeeded by production of cogent evidence to prove that the suit property was purchased in the benami of the respondent for his own benefit. (Paras 22 and 23)

       As held herein earlier the High Court had set aside the concurrent findings of fact not on consideration of the evidence adduced by the parties but set aside the concurrent findings of fact on the basis of findings contrary to the evidence on record and without considering the findings of fact arrived at by the appellate court and the trial court. From the judgment of the High Court we further find that the concurrent findings of fact were set aside not on consideration of the findings of fact arrived at by the courts below but only on the basis of the arguments of the learned Advocate of the respondent. This was also not permissible to the High Court in Second Appeal to come to a contrary findings of its own only on the basis of the arguments of the learned counsel for the respondent without considering the findings of the trial court as well as the appellate court. (Para 25)

       We ourselves considered the evidence on record as well as the findings of fact arrived at by the two courts below. From such consideration we do not find that the concurrent findings of fact arrived at by the appellate court as well as the trial court were either perverse or without any reason or based on non-consideration of important piece of evidence or admission of some of the parties. We are therefore of the view that the High Court was not justified in interfering with the concurrent findings of fact arrived at by the appellate court as well as the trial court which findings were rendered on consideration of the pleadings as well as the material (oral and documentary) evidence on record. (Para 25)