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2015 Supreme(P&H) 221
PUNJAB & HARYANA HIGH COURT
RAJ MOHAN SINGH, J.
Bimla Devi – Appellant
Vs.
Devinder Singh & Others – Respondents
R.S.A. No. 79 of 1989
Decided On : 25.2.2015
Headnote:(A) Benami Transactions (Prohibition) Act, 1988, S.4(3)(b)--Mother purchasing property in the name of her daughter in the year 1976 before coming into force, 1988 Act--Daughter was in fiduciary relationship of mother--Held; mother was benami owner of property--Because under the Act any transactions entered into prior to coming into force of Act, is not voided by any provision whatsoever. (Paras 19, 20 & 21)
(B) Benami Transactions (Prohibition) Act, 1988, S.3(1) & S.4--Fiduciary and Fiduciary relationship--The fiduciary relationship is not exhausted by the few well known patterns of relationship--Any relationship in which one party enjoys the 'active confidence' of another party who is lean on him and is inclined to repose implicit confidence in him is enough to approximate to the kind of relationship--The relationship of parent and child is also inclusive so as to cover the present case in which mother purchased the property as benami 2012(2) RCR (Civil) 922, 2011(3) RCR (Civil) 914 relied on.
(C) Benami Transactions (Prohibition) Act, 1988, S.4(1) & S.3(1)--Scope and object of Act--It is an act to prohibit benami transaction and the right to recover property held benami, for matter connected therewith or incidental thereof--Thus it was enacted to effect the then existing rights of the real owners of properties held by other benami--Such an Act was not given any retrospective effects by the legislature--Hence, the operation of section 4(1) is prospective in nature. (Paras 16 & 24)
RAJ MOHAN SINGH, J.
1. Vide this common judgment, aforesaid two appeals are being disposed of. Facts are taken from RSA No. 79 of 1989.
2. Before embarking upon merits of the case, it is necessary to take stock of status of the parties. The record of RSA No. 79 of 1989 reveals that sole plaintiff/respondent Devinder Singh died on 24-12-1991. Civil Miscellaneous No. 1-C of 1992 was moved on 24-7-1992 for bringing his brother Tarlok Singh son of Gurdev Singh on record as legal representative. Aforesaid Application was allowed and necessary note about impleading of legal representative in the memo of parties was ordered to be recorded vide order dated 11-9-1992 passed by this Court. Thereafter, notice/fresh notice was issued to said Tarlok Singh son of Gurdev Singh and ultimately, this Court recorded the following order on 17-5-1993 in CM No. 2453-C of 1989 :
The only brother of Devinder Singh deceased/ respondent, who was allowed to be impleaded as legal representative by this Court, has written on the summons that he was not interested in the case. Consequently, the stay order granted by this Court is made absolute.
3. In view of aforesaid, since Tarlok Singh legal representative of respondent Devinder Singh was not interested in pursuing this appeal, therefore, none appeared on his behalf before this Court on preceding dates. This Court proceeds to decide the appeals on merits on the aforesaid premise.
4. These appeals are directed against the judgment and decree dated 8-10-1988 passed by Additional District Judge, Ludhiana, whereby judgment and decree dated 18-11-1986 passed by Sub-Judge, Khanna was reversed and suit of the plaintiff was decreed in appeal.
5. Brief facts of the case are that plaintiff Devinder Singh filed a suit for possession on the ground that Harjit Kaur, daughter of Gurdev Singh, was the owner of the land measuring 6 marla detailed in head note of the plaint. The land was purchased from Hari Singh son of Harnam Singh vide registered sale deed dated 8.6.1976. Harjit Kaur expired on 28.11.1977. Plaintiff being the only legal heir of Harjit Kaur (deceased), filed the aforesaid suit with the allegations that defendant No. 2 Jal Kaur had illegally obtained mutation of the land in question in her favour due to connivance of revenue officials. Jal Kaur had sold the land in favour of defendant No. 3 and 4, namely, Charanjit Kaur and Jaswinder Kaur for which she had no right, title or interest. Defendant Nos. 3 and 4, in turn, sold the same to Bimla Devi-defendant No. 1.
6. The suit was contested by the defendants on numerous grounds. Defendants No. 1 and 2 contested the claim of the plaintiff on the ground that the suit was not maintainable. Jal Kaur alleged that the plot in question was purchased by her in the name of her daughter Harjit Kaur as benami transaction. Defendant No. 1 Bimla Devi took the stand that she purchased the plot in question from defendant Nos. 3 and 4 in a bona fide manner.
7. On the pleadings of the parties, trial Court framed the following issues:
1. Whether the sale in favour of Smt. Harjit Kaur deceased was got executed benami by defendant No. 2? If not its effect? OPD
2. If issue No. 1 is proved, whether the plaintiff is owner of the suit property? OPP
3. Whether the defendant No. 1 is a bona fide purchaser of the property in suit? OPD
4. Whether the suit is not maintainable in the present form? OPD
5. Whether the suit is barred by the time? OPD
6. Relief.
8. Trial Court under issue Nos. 1 and 2 found as a matter of fact that admittedly, Harjit Kaur was daughter of Jal Kaur. Harjit Kaur expired on 28-11-1977. The plot in question was purchased by Jal Kaur in the name of Harjit Kaur vide registered sale deed dated 8-6-1976 Ex.D-1. Marriage of Harjit Kaur was solemnized with Devinder Singh (plaintiff) on 13-7-1975. The land in question was purchased from Hari Singh and name of Harjit Kaur was recorded being daughter of Gurdev Singh. It was nowhere mentioned in the sale deed that she was wif
