1988 (10) TMI 6 - HC - Benami Property

Issues Involved:
1. Title and possession of the disputed property.
2. Application of Section 2(1) of the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988.
3. Applicability of the Ordinance to pending proceedings.

Detailed Analysis:

1. Title and Possession of the Disputed Property:
The trial court had initially declared the title of the petitioner in respect of the disputed property, rejecting the contention of the opposite parties that the petitioner and her deceased mother were mere ostensible owners or benamidars. This decree allowed the petitioner to recover possession of the property. However, the first appellate court overturned this decree, and the judgment was affirmed by the High Court in a second appeal, holding that the petitioner and her deceased mother were mere benamidars of the petitioner's father. Consequently, the property was duly inherited by the father's second wife, who properly conveyed it to opposite party No. 1. Following this, opposite party No. 1 applied to the trial court under Section 144 of the Civil Procedure Code for restoration of the disputed property, which was granted ex parte on March 4, 1988. The petitioner was directed to restore possession of the property to opposite party No. 1, who then applied under Order 21, Rule 35 of the Civil Procedure Code for a writ of delivery of possession.

2. Application of Section 2(1) of the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988:
The petitioner objected to the application under Order 21, Rule 35, arguing that the order dated March 4, 1988, was no longer sustainable due to the provisions of the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988, promulgated on May 19, 1988. Section 2(1) of the Ordinance states: "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." The court concluded that the proceeding under Order 21, Rule 35 is a proceeding in execution and not a suit, but it is a proceeding to enforce a claim. The decree recognizes the claim of the respondent that the petitioner and her mother were benamidars, and any step to enforce that decree would be a step to enforce that claim. The court also considered that the term "action" in Section 2(1) of the Ordinance includes execution proceedings necessary for the enforcement of such decrees.

3. Applicability of the Ordinance to Pending Proceedings:
The court examined whether the Ordinance applies to proceedings that were already pending at the time of its promulgation. It was argued that the Ordinance should not apply to pending proceedings without express words to that effect. However, the court found that the language of Section 2(1) of the Ordinance, which uses the expression "shall lie" instead of "shall be instituted," indicates the intention to cover proceedings pending at its commencement. The court held that a proceeding lies until it is disposed of, and if it is provided that a proceeding "shall not lie," it bars both its commencement and continuance. This interpretation aligns with the object of the Ordinance to prohibit the right to recover property held benami, making the provisions applicable to all cases where the right to recover such property is sought to be enforced or resisted after the promulgation of the Ordinance.

The court also noted that the Ordinance has been replaced by the Benami Transactions (Prohibition) Act, 1988, with Section 4 of the Act corresponding to Section 2 of the Ordinance. The provisions of Section 1(3) of the Act provide that Section 4 and other provisions, except Sections 3, 5, and 8, are deemed to have come into force on May 19, 1988. Therefore, the court's observations on Section 2 of the Ordinance apply to Section 4 of the Act.

Conclusion:
The revision was allowed, and the proceedings for recovery of possession of the disputed property and the order directing the issuance of a writ for delivery of possession were quashed as illegal and violative of Section 2 of the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988, now replaced by Section 4 of the Benami Transactions (Prohibition) Act, 1988. No costs were awarded.

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