Back
PATNA HIGH COURT
B.L.Yadav, J.
Barister Singh
Versus
Lahori Sao
Appeal From Appellate Decree No. 239 of 1993 ;
Decided On : AUGUST 04, 1995
BENAMI TRANSACTION (PROHIBITION) ACT, 1988 - SEC. 4 - RETROSPECTIVE OPERATION - GIFT DEED - VALIDITY - FACTUAL FINDING.
Fact of the Case:
Plaintiffs filed a suit for declaration that a gift deed executed by Gyanchand in favor of Sitapati was fraudulent and inoperative, and for a declaration that a mutation case was illegal. The trial court and the lower appellate court decreed the suit. The defendants appealed, arguing that the suit was barred by the Benami Transaction (Prohibition) Act, 1988 (the Act) and that the gift deed was illegal.
Finding of the Court:
The court held that Sec. 4 of the Act was not retrospective in operation and therefore did not apply to the suit, which was pending at the time the Act came into force. The court also found that the gift deed was not a valid document.
Issues: 1. Whether Sec. 4 of the Benami Transaction (Prohibition) Act, 1988 is retrospective in operation. 2. Whether the gift deed executed by Gyanchand in favor of Sitapati was valid.
Ratio Decidendi: 1. The court held that Sec. 4 of the Act was not retrospective in operation based on the following reasoning: a) The Act was not declaratory in nature, as it did not declare or clarify the real intention of the legislature. b) The Act did not create any new rights or obligations. c) The golden rule of construction is that a statute is not to be construed retrospectively unless that effect cannot be avoided without doing violence to the language of the enactment. d) The Apex Court in R. Rajagopal Reddy v. Padmini Chandra Sekharan overruled the earlier view in Mithilesh Kumari v. Prem Behari Khare and held that Sec. 4 of the Act was not retrospective. 2. The court found that the gift deed was not a valid document based on the evidence on record, which showed that the transaction was not a Benami transaction.
Final Decision: The court dismissed the defendants' appeal and upheld the decree of the lower courts.
B.L.Yadav, J.
1. This is a defendants Second Appeal in a suit filed by the plaintiffs respondents for declaration that the deed of gift dated 23-9-1979 purported to have been executed by Gyanchand in favour of Sitapati in respect of the suit property measuring about 8 decimals of land situate in Mauza Telpa Kalampurr Shahartelpa, Police station Karpi, District Jehanabad was fraudulent, sham and inoperative and also for declaration that the Mutation Case No. 519 of 1985 was illegal and also for temporary injunction restraining the defendants from making any alienation of the suit property.
2. The case of the plaintiffs-respondents was that one Jhauri Sao, grand-father of plaintiff No. 1 Lohari Sao has two sons, namely, Ramdhani Sao and Devi Charan Sao. Ram Dhani Sao had a son named Gyanchand who married one Marchhi after the death of his first wife. The plaintiff No. 1 Lohari Sao is the son of said Devi Charan Sao, and that the deed executed by Gyanchand Sao was illegal and sham transaction. The plaintiffs were entitled to the relief claimed.
3. The suit was contested by the defendants also denying the plaint allegations and that the gift deed was legal and genuine executed by Gyanchand Sao in respect of some of the properties and he fraudulently took settlement of the lands in dispute, and that the suit was liable to be dismissed as no case for granting any relief was made out.
4. The trial court decreed the suit, holding that the gift deed dated 23-3-1979 is sham, fraudulent an in operative and that the order in Mutation Case No. 519 of 1983-84 is also illegal and fraudulant, and the suit was accordingly, decreed. The appeal filed by the defendants-appellants before the lower appellate cout was dismissed. Hence the present Second Appeal has been filed.
5. The learned Counsel for the appellants urged that the suit was barred by the provisions of the Benami Transaction (Prohibition) Act, 1988 (for short "the Act"), as it was averred in the plaint in paragraph 6 that Gyanchand, the donee was holding the property, but he was just like a Benamidar and the real owner was plaintiff No. 1.The present suit was barred by Sec. 4 of the Act and that the gift was illegal. Reliance was placed on Mithilesh Kumari V/s. Prem Bihari Khare -- . Some other decisions were also referred but it is not necessary to refer to them.
6. The learned Counsel for the respondents, on the other hand, refuted the submisions of the learned Counsel for the appellants and urged that the suit was filed prior to enforcement of the Act and in any in any case the allegations made in the plaint were not sufficient to make out a case of Benami transaction, rather the matter was covered by the Proviso added to Sec. 4 of the Act and that the gift deed was legal and operative.
7. Having scrutinised the submissions of the learned Counsel for the parties, point for consideration was as to whether the suit was bared by Sec. 4 of the Act and whether the gift deed was legal. As regards the first point the basic question is whether the provision of Sec. 4 of the Act is retrospective in operation. Sec. 4 of the Act is quoted below:
4. Prohibition of the right to recover property held benami: (1) No suit, claim or action of enforce any right in respect of any property held Benami against the person in which name the property is held or against any other person shall be 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 against the person in whose 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.
(3) Nothing in this Section shall apply: (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family, or
(b) where the person in whose n
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
