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TMI Blog2011 (1) TMI 1518X X X X Extracts X X X X X X X X Extracts X X X X ..... uly served on Respondent No. 1 before 13.4.1987. The High Court, therefore, erred in interfering in the finding rendered by the Additional District Judge that Respondent No. 1 did receive the notice and, therefore, was not a bona fide purchaser for value without a notice. The judgment of the High Court, therefore, deserves to be set aside. The Appellants through their counsel have, however, in all fairness offered to compensate the first Respondent herein by paying him the amount of ₹ 30,000/- with appropriate interest. The first Respondent did not evince any interest in this suggestion. Yet, the end of justice will be met, if this amount of ₹ 30,000/- is returned by the Appellants to him as offered by them with simple interest at the rate of 10%. The judgment and order passed by the High court are set aside - Appeal allowed. - Civil Appeal No. 846 of 2011 (Arising out of Special Leave Petition (C) No. 1305 of 2010) - - - Dated:- 21-1-2011 - H.L. Gokhale and Dalveer Bhandari, JJ. For Appellant : Plaintiff: Sai Krishna Rajagopal, Hari Shankar K., Vikas Singh Jangra and Bharat S. Kumar, Advs. For Respondents : V.K. Monga, Adv. JUDGMENT H.L. G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 on 30.9.1987 for a declaration that she was the real owner in possession of the Suit House shown in red in the site plan attached by letters A B C D part of No. Khasra 574/1, No. Khawat 262, No. Khatauni 401, as entered in the Jamabandi for the year 1976-77 situated in village Daulatpur HB No. 331, Pathankot. She prayed for a permanent injunction also restraining the Defendants from alienating any part of the suit house and forcibly interfering with the possession of the Plaintiff of the suit house. By moving an amendment, she claimed an alternative relief for a decree of ₹ 40,000/- with interest. Her son Kamal Chand was joined as Defendant No. 1, his brother-in-law the above referred Jiwan Kumar as Defendant No. 2, and the purchaser Sampuran Singh as Defendant No. 3. They are Appellant No. 2, Respondent No. 2 and Respondent No. 1 respectively to this appeal. 7. Defendant No. 1 admitted the entire claim of the Appellant, but the Defendant No. 2 disputed it, and contended that half of the consideration of ₹ 40,000/- had been paid by him. He denied that it was a Benami Transaction. Defendant No. 3 filed his written statement and contended in para 5 thereof that even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it on 30.9.1987. The Benami Transactions (Prohibition) Act 1988 came into force on 5.9.1988. Thus, this Suit was pending on the date on which the Act came into force. The Trial Court, therefore, followed the judgment in Mithilesh Kumari (supra), and held that the Appellant no longer retained the right to recover the property from the Benami holder. The suit was, therefore, dismissed for being barred by virtue of the provisions of the said Act, though without any order as to costs. 11. The Appellant No. 1 carried the matter in first appeal to the Additional District Judge, Gurdaspur. As we have noted, the trial court had already held that Appellant No. 1 had purchased the suit house by making the payment from her account. It had, however, declined to decree her suit on two grounds, firstly due to the prohibition under Section 4 of the Benami Transactions (Prohibition) Act 1988 as interpreted in Mithilesh Kumari judgment (supra), and secondly on the ground that the Appellant did not prove the service of her notice dated 8.4.1987 on Respondent No. 1 herein. By the time the first appeal was being heard, the judgment of the two Judges bench in Mithilesh Kumari (supra) had been over-r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... continued in that property. The Learned Judge did not give any importance to the notice dated 8.4.1987 being sent under postal certificate, but held that there was nothing on record to prove that Defendant No. 3 had been served with that notice. The Learned Single Judge therefore, found fault with the finding of the Additional District Judge to the effect that Defendant No. 3 (Respondent No. 1 herein) was not a bonafide purchaser, and further held that, it amounted to misreading of evidence. The Regular Second Appeal was therefore, allowed and the judgment and decree of the Addl. District Judge was set aside. 13. Being aggrieved by the judgment and order passed by the High Court this Appeal has been filed by the Appellant. This time, the son of Appellant No. 1, the original Defendant No. 1 has joined her as Appellant No. 2. Mr. Saikrishna Rajagopal, learned Counsel appearing for the Appellants pointed out that the order passed by the High Court does not deal with the law laid down in the judgment of this Court in R. Rajagopal Reddy case (Supra). The judgment was binding on the Learned Judge, and in view thereof the suit filed by the Appellant No. 1 was not hit by the prohibition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignoring the binding judgment of a Bench of three Judges of this Court in R. Rajagopal Reddy (supra). By this decision, this Court had reversed its earlier judgment in Mithilesh Kumari (supra) and had held in terms that suits filed prior to the application of the act would not be hit by the prohibition under Section 4 of that act. Section 4(1) of the Benami Transactions (Prohibition) Act 1988 reads as follows: 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. While reversing the earlier decision of this Court in Mithilesh Kumari (supra), a bench of three Judges observed in para 11 of R. Rajagopal Reddy (supra) as follows:- Before we deal with these six considerations which weighed with the Division Bench for taking the view that Section 4 will apply retrospectively in the sense that it will get telescoped into all pending proceedings, howsoever earlier they might have been filed, if they were pending at differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e part of the first appellate court, and hence there was no occasion for the High Court to frame such a question of law in view of the prevailing judgment in R. Rajagopal Reddy which had been rightly followed by the first appellate court. 18. The High Court has held that there is nothing on record to suggest that Respondent No. 1 herein had, in fact, been served with the notice dated 8.4.1987 and thereby reversed the finding rendered by the first appellate court. It is material to note in this behalf that it was canvassed by Respondent No. 1 before the first appellate court that a certificate of posting is very easy to procure and it does not inspire confidence. The Additional District Judge observed that there was no dispute with this proposition of law, but there was no such averment or even allegation against Appellant No. 1 herein, that she had procured the certificate of posting nor was there any such pleading to that effect. It is on this background that the first appellate court has drawn the inference that the notice must be deemed to have been served within the period of five days thereafter i.e. before 13.4.1987, the date on which the Respondent No. 1 herein entered in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is reasonably expected that in the normal course it would be delivered to the addressee. That is the official and the normal function of the post office. 13. Help can also be taken from Section 16 of the Indian Evidence Act which reads as follows: When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact. Illustrations: (a) The question is, whether a particular letter was dispatched. The facts that it was the ordinary course of business for all letters put in a certain place to be carried to the post, and that that particular letter was put in that place, are relevant. (b) The question is, whether a particular letter reached A. The facts that it was posted in due course, and was not returned through the Dead Letter Office, are relevant. 21. As far as a notice sent under postal certificate is concerned, in Mst. L.M.S. Ummu Saleema v. B.B. Gujaral and Anr. 1981 (3) SCC 317, a bench of three judges of this Court on the facts of that case, refused to accept that the notice sent under a postal certificate by a detenue under the Conservation of Foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judges referred to the judgment in M.S. Madhusoodhanan (supra), and drew the presumption in the facts of that case that the notice sent under postal certificate had been duly served for the purposes of Section 53(2) of the Companies Act, 1956, since the postal receipt with post office seal had been produced to prove the service. Thus, it will all depend on the facts of each case whether the presumption of service of a notice sent under postal certificate should be drawn. It is true that as observed by the Privy Council in its above referred judgment, the presumption would apply with greater force to letters which are sent by registered post, yet, when facts so justify, such a presumption is expected to be drawn even in the case of a letter sent under postal certificate. 23. Having seen the factual and the legal position, we may note that in the present case it has already been established that the Appellant had purchased the property out of her own funds. Therefore, it could certainly be expected that when she came to know about the clandestine sale of her property to Respondent No. 1, she would send him a notice, which she sent on 8.4.1987. As noted earlier, the notice is sent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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