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2011 (1) Supreme 401
SUPREME COURT OF INDIA
Dalveer Bhandari and H.L. Gokhale, JJ.
Samittri Devi and another. — Appellants
versus
Sampuran Singh and another — Respondents
Civil Appeal No. 846 of 2011
Arising out of Special Leave Petition (C) No. 1305 of 2010
Decided on : 21-1-2011
(b) Transfer of Property Act, 1882 – Section 54 – Appellant no. 1 purchasing the property from her own fund but in name of appellant no. 2 and defendant no. 2 – Defendant no. 2 had no right over any portion of the property – Purchase of so called share of defendant no. 2 by respondent no.1 without consent of appellant no. 1 cannot give him any right whatsoever in the property. (Para 15)
(c) Administration of Justice – Judicial Propriety – By not referring to R. Rajagopal Reddy’s case although relied upon by appellant, High Court committed serious error of law – First appellate court rightly followed R. Rajagopal Reddy’s case. (Para 17)
(d) Indian Evidence Act, 1882 – Section 114 – Service of notice – Appellant and respondent no. 1 residing in the same locality – Appellant no. 1 sending notice by post under certificate of posting – No allegation of certificate of posting having been procured – Nothing wrong in presuming that the notice must have been served within five days. (Para 18)
Facts of the case:
Question raised in this appeal is whether the suit for the recovery of house property filed prior to the Benami Transactions (Prohibition) Act, 1988 coming into force could be considered to be prohibited by Section 4 of that Act.
Finding of the Court:
The High Court ought to have held that the suit of appellant No. 1 for declaration of her ownership to be valid and maintainable.
Result : Appeal allowed.
JUDGMENT
Gokhale J. —
Leave Granted.
2. This Appeal by Special Leave raises the question as to whether the suit of the first appellant for the recovery of her house property filed prior to the Benami Transactions (Prohibition) Act, 1988 coming into force could be considered to be prohibited by Section 4 of that Act.
3. This appeal seeks to challenge the judgment and order passed by a Learned Judge of the Punjab and Haryana High Court dated 10.9.2009 in Regular Second Appeal (R.S.A) No. 1367 of 1996 (O & M), whereby the Judge has allowed the Second Appeal filed by Respondent No. 1 herein, and set aside the judgment and order dated 22.2.1996 passed by the Additional District Judge, Gurdaspur in Civil Appeal No. 203 of 1991 filed by appellant No.1 herein. The Learned Additional District Judge had allowed the Civil Appeal filed by appellant No. 1 herein whereby he decreed Civil Suit No. 138 of 1987 filed by appellant No.1, which suit had been dismissed by the Sub-Judge at Pathankot by his judgment and order dated 3.10.1991.
4. Short facts leading to this appeal are as follows:-
The appellant No.1 herein purchased a house property situated at Pathankot from Sarvashri Romesh Chand and Chatar Chand sons of Shri Kartar Singh, vide registered sale deed dated 26.2.1985 for a consideration of Rs. 40,000/-. This sale deed was, however, executed in the name of her son namely Shri Kamal Chand (the appellant No.2 herein) and his brother-in-law Shri Jiwan Kumar (respondent No.2 herein). The appellant no.1 paid the money by two bank drafts for purchasing the house property which was actually in the possession of a tenant of the previous owner i.e. Home Guard Department and it continues to be in their possession.
5. It is the case of the appellant No.1 that taking advantage of her old age (presently 93 years), the above referred Kamal Chand and Jiwan Kumar stealthily removed the sale deed from her possession, and this Jiwan Kumar sold half share of the suit house to one Sampuran Singh (Respondent No. 1 herein) and that too without her knowledge and consent. The sale was executed by a registered sale deed dated 13.4.1987 despite the fact that appellant No.1 had sent, in the meanwhile, a letter dated 8.4.1987 to Respondent No. 1 herein informing him that she was the real owner of the Suit House.
6. The appellant No. 1 therefore, filed Suit No. 138 of 1987 on 30.9.1987 for a declaration that she was the real owner in possession of the Suit House shown in red in the site plan attached by letters A B C D part of No. Khasra 574/1, No. Khawat 262, No. Khatauni 401, as entered in the Jamabandi for the year 1976-77 situated in village Daulatpur HB No. 331, Pathankot. She prayed for a permanent injunction also restraining the defendants from alienating any part of the suit house and forcibly interfering with the possession of the plaintiff of the suit house. By moving an amendment, she claimed an alternative relief for a decree of Rs. 40,000/- with interest. Her son Kamal Chand was joined as defendant No. 1, his brother-in-law the above referred Jiwan Kumar as defendant No. 2, and the purchaser Sampuran Singh as defendant No. 3. They are appellant No.2, respondent No.2 and respondent No. 1 respectively to this appeal.
7. Defendant No. 1 admitted the entire claim of the appellant, but the defendant No. 2 disputed it, and contended that half of the consideration of Rs. 40,000/- had been paid by him. He denied that it was a Benami Transaction. Defendant No. 3 filed his written statement and contended in para 5 thereof that even if it is proved to be a Benami Transaction, due to the recent legislation of Benami Transactions (Prohibition) Act 1988, the defendants Nos. 1 & 2 were the owners of the Suit property, and that the alienation of his share in the property by defendant No. 2 in his favour had been effected legally. He contended that he had purchased the share of the defendant No. 2 by sale deed dated 13.4.1987 for a consideration of Rs. 30,000/-, and t
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