The Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988 prohibits the right to recover property held benami and repeals certain statutory provisions. The court upheld the validity of the Ordinance and ruled that the defence of benami would be unavailable in the pending second appeal.

The interpretation of the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988 (hereinafter referred to as .'the Ordinance') arises for consideration in the second appeal. As to how the Ordinance is attracted to the case will be revealed from the facts to follow.

FACTS OF THE CASE

2. The facts of the case are short and simple.

3. The suit was filed for partition and the invalidation of Ext. A3 document dated 11-8-1965 executed by the plaintiff's mother the 3rd defendant. He claimed one fifth share in the property and contended that the alienation effected by his mother at a time when he was a minor was invalid as regards his share. One Padmanabhan was the original owner of the property. Through his first wife, he had two sons Bhaskaran and Madhusoodanan, defendants 4 and 5. On the death of his first wife, Padmanabhan married Meenakshi the 3rd defendant. Plaintiff Rajeev, and 6th defendant Sarala are the son and daughter born in that marriage connection.

4. Padmanabhan had acquired the property under Ext. Al sale deed dated 9-2-1961, executed by one Velayudhan. Padmanabhan died on 4-7-1965. It was soon thereafter that the 3rd defendant executed Ext. A3 (the original is Ext. B3) purporting to be a release deed in favour of the 1st defendant, on her own behalf and on behalf of the plaintiff and defendants 4 to o. Later, the 4th defendant affirmed that action by executing Ext. B5 document on 29-3-1976.

5. The plaintiff contended that her mother had no authority to alienate the property in which, she as a legal heir of Padmanabhan, had a one fifth share.

o. The first defendant contended that he was the real owner and that Padmanabhan was only a benamidar. The second defendant is an assignee of a portion of the property.

DECISIONS OF THE COURTS BELOW

I. The trial court dismissed the suit. It held that Padmanabhan was only a benamidar. The appellate court differed from the trial court. It assessed the evidence independently and exhaustively. The fact that the consideration recited in the release deed is a paltry sum of Rs. 25 was noted by that Court. This circumstance by itself will be sufficient to demonstrate that that transaction was positively prejudicial to the interests of the minor children, if they are the real owners of the property. The situation can be salvaged only if it is established that the 1st defendant was the real owner. The defendant in his examination displayed a total lack of familiarity with the crucial matters connected with the transaction. His impression about the consideration for the document came from the information conveyed to him by Padmanabhan! Evidence was lacking as to the availability of the financial resources for the acquisition of the property or about the actual payment of the recited consideration. The motive put forward as a justification for the benami transaction was also found to be unacceptable by the appellate court. On the above finding, the suit was decreed by the court below. The plaintiff's entitlement to one fifth share was declared. The 2nd defendant purchaser of a portion of the property, was afforded some equitable adjustment.

THE SECOND APPEAL AND ITS SCOPE

8. The appellate court decree has been challenged in second appeal. The success of the second appeal depends on the fallibility of the appellate finding.

9. Will the appellant get relief, even if the appellate finding is upset and Ext. Al is held to be a benami transaction? The promulgation of the Presidential Ordinance, has a decisive effect on that aspect of the case.

10. The facts will clearly reveal that the fundamental defence put up by the defendants is a plea of benami. If that plea is not available, the defence edifice will quickly collapse. This called for an interpretation of the scope and amplitude of the Ordinance.

ROLE OF THE COURT

II. There, and then, comes the role of the Court, the role as described by Lord Scar man in Furniss v. Dawson, 1984 S. T. C. 153:

"Whatever a statute may pro