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IN THE HIGH COURT OF DELHI
Valmiki J. Mehta, J.
Anis Ur Rehman - Appellant
Versus
Mohd. Tahir - Respondent
RFA No. 855 of 2018 and C.M. No. 43186 of 2018(stay)
Decided On : 21-01-2019
JUDGMENT
Valmiki J. Mehta, J. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit impugning the Judgment of the trial court dated 08.05.2018 by which the trial court has rejected the plaint filed by the appellant/plaintiff under Order VII Rule 11 CPC on account of the suit filed by the plaintiff being barred under The Benami Transactions (Prohibition) Act, 1988 (hereinafter `unamended Act`).
2. At the outset, it may be noted that the trial court has referred to the fact that the unamended Act was amended w.e.f. 01.11.2016 and the Amended Act containing various amendments is now called as The Prohibition of Benami Property Transactions Act, 1988, yet, the Amended Act has not been held to be applicable by the trial court as the Amended Act has been held to not have retrospective application.
3. The limited issue is that whether the suit filed by the appellant/plaintiff, who is the father of the respondents/defendants (respondents/defendants being the sons and daughters of the appellant/plaintiff), claiming rights in the suit property no. G-6, Shop no. 7, Dilshad Colony, Delhi-110095 by seeking reliefs of declaration, possession, use and occupation charges etc. as barred by the provisions of the unamended Act and as to whether the provisions of the Amended Act apply or the provisions of the unamended act.
4. The present issue arises because the appellant/plaintiff claims that though the registered Sale Deed dated 26.11.2001 of the suit property was in the name of his wife Smt. Khursheed Begum and the three sons, namely Mohd. Tahir (defendant no. 1), Mohd. Zahid (defendant no. 2) and Nadeem Ur Rehman (defendant no. 6), but since only the appellant/plaintiff had paid the entire sale consideration for purchasing the suit property, and therefore it was the appellant/plaintiff who was the actual owner of the suit property.
5. Let us now examine as to whether the trial court has rightly held the suit to be barred by the provisions of Sections 3 and 4 of the unamended Act. These Sections 3 and 4 read as under:
"Section 3
3. Prohibition of benami transactions. (1) No person shall enter into any benami transaction.
(2) Nothing in sub-section (1) shall apply to
(a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter;
(b) the securities held by a
(i) depository as registered owner under sub-section(1) of section 10 of the Depositories Act, 1996
(ii) participant as an agent of a depository.
Explanation. The expressions "depository" and "Participants shall have the meanings respectively assigned to them in clauses (e) and (g) of sub-section (1) of section 2 of the Depositories Act, 1996.
(3) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under this section shall be non-cognizable and bailable.
Section 4.
4. Prohibition of the right to recover property held benami (1) 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.
(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
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