Back
1993 Supreme(MP) 414
1994 JLJ 521
P.P. Naolekar, J.
Khateeja Bai (Smt) v. Union of India and others
F.A. No. 160 of 1988; Decided on 12.7.1993.
S.C. Jain for appellant; P.D. Gupta for respondents.
Headnote:(1) Benami Transactions (Prohibition) Act, 1988 -- Ss.2 (a), 3 and 4 -provisions under the Act -- are applicable to all transactions which are said to be benami in nature. AIR 1989 SC 1247 and AIR 1992 SC 885 followed. [Para 8
(2) Benami Transactions (prohibition) Act, 1988 -- Ss. 3 (1), (2), (3) and 2 (a) -- if the property is purchased benami in name of wife or unmarried daughter for their benefit -- such benami transaction would not be punishable under S. 3 (3) else it would be so punishable -- exception created under S. 3 (2) is only for saving the punishment.
Property purchased in the name of wife or unmarried daughter for a consideration provided or paid by the husband or father such transaction is taken out of the rigour of sub-section (3) of section 3 unless it is proved that the property so purchased is not for the benefit of wife or daughter. But for the provision of sub-section (2) of section 3, property purchased by husband or father in the name of wife or unmarried daughter, respectively, would have been a benami transaction prohibited under sub-section (1) of section 3 of the Act, 1988, i.e. although the transaction is benami under the definition of clause (a) of section 2 but it shall not be punishable under section 3 (3) of the Act, 1988. [Para 7
(3) Benami Transactions (prohibition) Act, 1988 -- S. 4 (1), (2) and (3) -no defence of benami nature of transaction can be raised – suit, action or other proceeding to that effect cannot also be instituted -- sub-section (3) is an exception for only limited purpose of co-parcenary property and no more. [Para 7
(4) Benami Transactions (prohibition) Act, 1988 -- Ss. 3, 4 and 2 (a) -property standing in the name of wife -- cannot be attached or sold for income tax dues against husband -- transaction cannot be claimed to be benami. [Para 6
¼1½ csukeh laO;ogkj ¼çfr"ks/k½ vf/kfu;e] 1988 & /kkjk 2 ¼d½] 3 rFkk 4 & vf/kfu;e ds v/khu mica/k & mu lHkh laO;ogkjksa ij ykxw gksrs gSa ftUgsa csukeh Lo:Ik dgk tkrk gSA , vkb vkj 1989 ,l lh 1247 rFkk , vkb vkj 1992 ,l lh 885 vuqlfjrA ¿iSjk 8
¼2½ csukeh laO;ogkj ¼çfr"ks/k½ vf/kfu;e] 1988 & /kkjk 3¼1½] ¼2½] ¼3½ rFkk 2 ¼d½ & ;fn laifÙk iRuh vFkok vfookfgr iq=h ds uke ij muds Qk;ns ds fy, csukeh Ø; dh tkrh gS & /kkjk 3 ¼3½ ds v/khu ,slk laO;ogkj naMuh; ugha gksxk vU;Fkk naMuh; gksxk & /kkjk 3¼2½ ds v/khu l`ftr viokn ek= naM ls cpkus ds fy, gSA
ifr vFkok firk }kjk miyC/k djk, x, vFkok lanÙk çfrQy ds fy, iRuh vFkok vfookfgr iq=h ds uke ij Ø; dh xbZ laifÙk dk ,slk laO;ogkj /kkjk 3 dh mi/kkjk ¼3½ dh dBksjrk ds ckgj j[kk x;k gS tc rd fd ;g lkfcr u dj fn;k tk, fd bl çdkj Ø; dh xbZ laifÙk iRuh vFkok iq=h ds Qk;ns ds fy, ugha gSA ;fn /kkjk 3 dh mi/kkjk ¼2½ dk mica/k ugha gksrk rc ifr vFkok firk }kjk Øe‘k% iRuh vFkok iq=h ds uke ij Ø; dh xbZ laifÙk vf/kfu;e] 1988 dh /kkjk 3 dh mi/kkjk ¼1½ ds v/khu çfrf"k) csukeh laO;ogkj gksrk] vFkkZr] ;|fi /kkjk 2 ds [kaM ¼d½ dh ifjHkk"kk ds v/khu ;g laO;ogkj csukeh gS] fdarq ;g vf/kfu;e] 1988 dh /kkjk 3 ¼3½ ds v/khu naMuh; ugha gksxkA ¿iSjk 7
¼3½ csukeh laO;ogkj ¼çfr"ks/k½ vf/kfu;e] 1988 & /kkjk 4¼1½] ¼2½ rFkk ¼3½ & laO;ogkj ds csukeh Lo:Ik dk gksus dh çfrj{kk ugha viukbZ tk ldrh & ml vk‘k; ds okn] dkjZokbZ vFkok vU; dk;Zokgh Hkh lafLFkr ugha dh tk ldrh & mi/kkjk ¼3½ ek= lgnkf;dh laifÙk ds ifjlhfer mís‘; ds fy, viokn gS] mlls vf/kd dqN ughaA ¿iSjk 7
¼4½ csukeh laO;ogkj ¼çfr"ks/k½ vf/kfu;e] 1988 & /kkjk 3] 4 rFkk 2¼d½ & laifÙk iRuh ds uke ij & ifr }kjk ns; vk;dj ds fy, dqdZ vFkok foØ; ugha dh tk ldrh & laO;ogkj csukeh gksus dk nkok ugha fd;k tk ldrkA ¿iSjk 6
P.P. Naolekar, J. -- 1. Plaintiff/appellant filed a suit for declaration that the house attached by the Income-tax Department for recovery of Income-tax dues belongs to the plaintiff/appellant and is not liable to attachment or sale, further for injunction restraining the defendants from attaching and selling the house.
2. As per plaintiff's case, by registered sale-deed dated 11.10.1971 House No. 22, situated at Central (Azad) Library Road, Itwara, Bhopal, was purchase by the plaintiff from Punamchand, s/o Ramchand, for consideration of Rs. 30,000/- and, since then plaintiff is in possession of the house in her own right. There were income-tax dues against the partnership Firm M/s. Kabir Ahmad Haji Abdul Karim Ahmad of which the plaintiff's husband, respondent No.3 Shri Ahmad was the partner. On 17.12.1977 the suit house No. 22 was attached by the Income-tax Department for income-tax dues. The suit House No. 22 is exclusive property of the plaintiff, and therefore, it could not have been attached by the Income-tax Department for the income-tax dues against the Firm of which the plaintiff's husband was partner. The defendants Union of India and Income-tax Recovery Officer filed their written statement contending that the house in fact and law belongs to the husband of the plaintiff/appellant and, plaintiff is only a benamidar of the suit property. The Department is within its right to attach and sell the suit property for the recovery of income-tax dues against the Firm of which the plaintiff's husband respondent No.3 Shri Ahmad was the partner. It was further contendeo that the suit as it is filed is not maintainable as there is remedy provided for appeal under Rule 86 of the Second Schedule to the Income-tax Act, 1961, before the Tax Recovery Commissioner.
3. The trial Court has held that the suit No. 22 of the Central (Azad) Library Road, Itwara, Bhopal, was purchased benami in the name of wife plaintiff appellant by her husband Ahmad and Ahmad was the real owner of the suit property. The Department was within its right to attach the suit house and recover the income-tax dues from the property held by the plaintiff. The objection as to the maintainability of the civil suit, however, was rejected. The trial Court has dismissed the suit riled by the plaintiff appellant. The plaintiff/appellant has challenged the judgment and decree passed by the trial Court on 2.7.1988 by filing appeal in this Court on 18.7.1988.
4. During the pendency of the suit in the trial Court the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988, was promulgated on the 19th May, 1988, and has come into force at once, later on substituted by the Benami Transactions (Prohibition) Act (No. 45 of 1988) received the assent of the President of India on 5th September, 1988. The provisions of the sections 3, 5 and 8 of the Act came into force at once on that date, and the remaining provisions were deemed to have come into force on the 19th of May, 1988.
5. On the basis of the Benami Transactions (Prohibition) Act, 1988 (No. 45 of 1988) (hereinafter referred to as 'Act 1988'), counsel for the appellant argued that the respondents were and are prohibited from challenging the title of the plaintiff/appellant as benami and, in view of the express provision made under section 4 of the Act, 1988, the findings arrived at by the trial Court that the plaintiff is mere benamidar is liable to be set aside. On the other hand, it is contended by the counsel for the respondents that by virtue of sub-section (2) of section 3 of the Act, 1988, it is open for the defendant to prove that the transaction is benami where the property is held by wife or unmarried daughter and restriction imposed under section 4 (2) docs not apply to the case in-hand. To appreciate the arguments of both the counsel it is necessary to decipher section 2 (a) and sections 3 and 4, which are-
"2 (a) "benami transaction" means any transaction in which property is tran
