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TMI Blog2019 (1) TMI 1147X X X X Extracts X X X X X X X X Extracts X X X X ..... exceptions in Section 2(9) of the Act are always deemed to have been included in the exceptions to the prohibited benami transactions, and in the facts of the present case, the suit of the appellant/plaintiff would be maintainable by the third exception contained in Section 2(9) of the Amended Act, and that whether or not on facts, the appellant/plaintiff is able to make out a case under the third exception, the same is a disputed question of fact requiring trial, and can only be decided after evidence is led by the parties, and the suit plaint thus could not have been rejected under Order VII Rule 11 CPC without trial. This appeal is therefore allowed. The impugned Judgment of the trial court dated 08.05.2018 is set aside. Suit is remanded back to the trial court for decision in accordance with law. - RFA No. 855/2018 and C.M. No. 43186/2018(stay) - - - Dated:- 21-1-2019 - MR. VALMIKI J. MEHTA J. Appellant Through: Mr. S.D. Ansari, Advocate with Mr. I. Ahmed, Advocate with appellant in person. Respondents Through: Respondent no. 6 in person. VALMIKI J. MEHTA, J 1. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e unmarried daughter; (b) the securities held by a- (i) depository as registered owner under sub-section(1) of section 10 of the Depositories Act, 1996 (ii) participant as an agent of a depository. Explanation .-The expressions depository and Participants shall have the meanings respectively assigned to them in clauses (e) and (g) of sub-section (1) of section 2 of the Depositories Act, 1996. (3) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under this section shall be non-cognizable and bailable. Section 4. 4. 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. (2) No defence based on any right in respect of any property held benami, whether against the person i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the immediate or future benefit, direct or indirect, of the person who has provided the consideration, except when the property is held by- (i) a Karta, or a member of a Hindu undivided family, as the case may be, and the property is held for his benefit or benefit of other members in the family and the consideration for such property has been provided or paid out of the known sources of the Hindu undivided family; (ii) a person standing in a fiduciary capacity for the benefit of another person towards whom he stands in such capacity and includes a trustee, executor, partner, director of a company, a depository or a participant as an agent of a depository under the Depositories Act, 1996(22 of 1996) and any other person as may be notified by the Central Government for this purpose; (iii) any person being an individual in the name of his spouse or in the name of any child of such individual and the consideration for such property has been provided or paid out of the known sources of the individual; (iv) any person in the name of his brother or sister or lineal ascendant or descendant, where the names of brother or sister or lineal ascendant or descendant and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ened is that the expressions HUF , fiduciary capacity and trustee have been defined, giving them the meaning which the law required, and this was done to remove any doubt or confusion with respect to the meaning of the expressions fiduciary capacity and trustee as found in the repealed provisions of Section 4(3). Therefore, by defining the expressions fiduciary capacity and trustee , it is not as if any vested right existing under the earlier provisions of Section 4(3) is taken away. What was the subject matter of Section 4(3) of the unamended Act being the transactions which were exempted from being classified as benami transactions, the said aspects are now brought in the subject matter of Section 2(9) of the Amended Act. The relevant four exceptions [fifth being the Explanation to Section 2(9)] to the definition of benami transaction contained in Section 2(9) of the Amended Act have simply expounded and elaborated and made more exhaustive the meaning of the expressions HUF or fiduciary capacity or trustee , thereby only those specific transactions as specified in the four exceptions contained in Section 2(9) of the Amended Act are taken out of the purview of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 2(9) of the Amended Act a benami transaction is defined and the exceptions have been specifically defined which are the exceptions to the prohibited benami transaction. No vested right is thus taken away, and therefore, the trial court has erred in holding that there existed a vested right in favour of the respondents/defendants by the repealed provisions of Section 4(3) of the unamended Act when it used the expressions fiduciary capacity and trustee . It is, therefore, held that definitions of the exempted transactions to the prohibited benami property transactions, and now contained in the four exceptions in Section 2(9) of the Act are always deemed to have been included in the exceptions to the prohibited benami transactions, and in the facts of the present case, the suit of the appellant/plaintiff would be maintainable by the third exception contained in Section 2(9) of the Amended Act, and that whether or not on facts, the appellant/plaintiff is able to make out a case under the third exception, the same is a disputed question of fact requiring trial, and can only be decided after evidence is led by the parties, and the suit plaint thus could not have been rejected ..... X X X X Extracts X X X X X X X X Extracts X X X X
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