9911796707
TMI Blog1994 (6) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... The parties to his appeal are hereinafter referred to as the Plaintiff and defendant for the sake of convenience. The relevant facts are summarised in the latter part of the judgment. 3. On or about 24th February 1978, the plaintiff filed Special Civil Suit No. 66 of 1978 against the defendant for declaration of his title in respect of the suit flat and for eviction of the defendant therefrom etc. The plaintiff also sought an order for determination of mesne profits payable by the defendant to the plaintiff for the period commencing from the date of the filing of the suit till vacant possession of the suit flat was handed over by the defendant to the plaintiff. The suit flat consists of 3 rooms and kitchen with attached hall, bathroom, etc. admeasuring 800 sq. ft. forming part of the building No. 11 bearing No. 196 on 1st floor in Meera Co-operative Housing Society, Poona. Prior to 12th September, 1974, the suit flat was held by Mr. N. D. Khosla and Mrs. Leela N. Khosla in their capacity as members of the Meera Cooperative Housing Society, hereinafter referred to as the Society on the basis which is popularly known as 'ownership basis'. By an agreeement dated 12th Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jadhav is duly reflected in a writing signed by Smt. Shalinibai Dattajirao Jadhav on 10th March, 1975 in Exh. 80 . The said writing was duty attested by a witness known as Mr. Nimbalkar on 10th March, 1975. The said writing was admittedly signed by the mother of the plaintiff. Smt. Shalinibai D. Jadhav expressly acknowledged that the plaintiff shall have to be continued as owner of the suit flat and the defendant did not have any right, title and interest therein. It was also stated in the said writing that the defendant will nominate the plaintiff as her nominee in respect of the said flat and the right, title and interest of the plaintiff in the said flat was not affected by transfer of the flat in favour of the plaintiff's mother Smt. Shalinibai D. Jadhav in any manner whatsoever. It emerges from the record of the suit that the plaintiff and Smt. Shalinibai Dattajirao Jadhav were residing in the suit flat for some time. The rented flat being Flat No. 8 in building No. 134 was kept lock. On 1st December, 1977, Smt. Shalinibai Dattajirao Jadhav died. It is the plaintiff's case that some time in the month of December 1977 or nearabout, the plaintiff learnt that Smt. Shalin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... halinibai D. Jadhav in the name of the plaintiff? The other important issue framed at the trial was as to whether the plaintiff proved that he had got the name of his mother Smt. Shalinibai D. Jadhav entered in the record of the Society as owner of the said flat nominally and merely for the sake of convenience. The several other issues were also framed by the trial Court. The basic question requires to be considered by the trial Court as well as by this court is as to whether the plaintiff has requisite title to the suit property or as to whether the defendant has requisite title thereto. 7. At the trial of the suit, the parties to the suit led oral as well as documentary evidence. The plaintiff examined himself in support of his case as P. W. 1. One Vashi Mohanlal Sindhavani, an Estate Agent, was examined as P.W. 2 for on behalf of the plaintiff. The defendant did not choose to depose in favour of the defence case. The defendant could have come to Pune and led the necessary evidence at the trial of the suit. The defendant could have been examined even on commission if the Court was satisfied that the case was made out for issue of commission. One Sunetra Udaysing Shinde, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 ). (i) Letter dated 1st March, 1978 issued by Atlas Copco (India) Employees' Co-operative Credit Society Limited certifying that the plaintiff had taken a loan of ₹ 3,000/- from the said Society on 27th November, 1973 (Exhibit 73 ). (j) Certificate dated 1st March, 1978 issued by the said Co-operative Society in respect of the loan of ₹ 2,400/- taken by the plaintiff from the said Society some time in the year 1975 (Exhibit 74 ). (k) Letter dated 18th March 1974 addressed by Atlas Copco (India) Limited Employees' Provident Fund certifying that the plaintiff had taken loan of ₹ 5,000/- from his Provident Fund Account as stated therein. (Exhibit 75 ). (l) Sale Deed dated 12th December, 1974 in respect of Kolhapur property executed by Shalinibai D. Jadhav, mother of the plaintiff stating therein that Shalinibai D. Jadhav had received a sum of ₹ 45,000/- from the purchaser in presence of the Sub-Registrar at the time when the document was presented for registration i.e. on 12th December, 1974.(Exhibit 76 ). (m) Letter dated 20th November, 1977 addressed by the plaintiff to the defendant. (Exhibit 77 ). (n) Will dated 4th Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00/- per month. During the course of his testimony, the plaintiff stated that the plaintiff had taken a loan of ₹ 5,000/- from his Provident Fund Account, and a loan of ₹ 3,000/- from Credit Society of his Company. The plaintiff had a sum of ₹ 7,000/- available with him from his savings. The plaintiff has stated that the sum of ₹ 10,000/- was gifted to him by his father-in-law, and ₹ 10,000/- was realised from the sale of his wife's Jewellery. The plaintiff deposed to the effect that the plaintiff had obtained a sum of ₹ 7,000/- from his friend one Shri Dhairshil Ingale of Kolhapur, ₹ 5,000/- from his cousin sister Smt. Meeradevi of Gargoti, and a sum of ₹ 5,000/- from Mrs. Sofi Nirmal of Poona. Nothing could be brought out in the cross-examination of the plaintiff so as to shaken his testimony. The plaintiff produced all counterfoils from the cheque book issued by the Bank of Maharashtra during the relevant period (Exhibit 72 ). The plaintiff had made the payment towards sale of price of the flat to the vendors and to the Society by cheques. There is no material on record whatsoever to show that the defendant had provided funds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the defendant that Smt. Shalinibai D. Jadhav had paid any amount to the plaintiff while obtaining the transfer of the flat in her name as aforesaid. It is not the case of the defendant that the plaintiff had made gift in respect of the said flat in favour of Smt. Shalinibai D. Jadhav. The plaintiff's case on this aspect is supported not merely by his oral testimony but also by writing Exhibit 80 . There is no material whatsoever on record to doubt the correctness of the contents appearing in writing Exhibit 80 . The plaintiff was asked the question during the course of his cross-examination as to what was the occasion for the plaintiff to obtain the writing (exhibit PO) from his own mother Smt. Shalinibai D. Jadhav. The plaintiff is an educated person. During the course of testimony, the plaintiff stated that since the matter was a property matter, it was thought proper to obtain such a writing from his mother and his mother voluntarily executed the said writing in favour of the palintiff. The Plaintiff is the only brother of several sisters. There is nothing peculier about this conduct of the plaintiff. In view of reasons set out in the judgment under appeal and als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Smt. Shalinibai at point of time. The defendant did not enter the witness box. The defendant did not decline the written statement. It appears to me that the relations between the plaintiff and Smt. Shalinibai deteriorated in later years and Shalinibai was under the influence of the defendant at time of execution of the above referred Will. Letter Exhibit 77 dt. 20th November, 1977 throws light on this aspect of the matter. 18. The learned counsel for the appellant has submitted that in any event, the appeal should be allowed in view of retrospective operation of the provisions of the Benami Transactions (Prohibition) Act, 1988. The learned counsel, for the appellant submitted that the plaintiff was not entitled to urge the plea that the transfer of the suit flat in favour of Shalinibai D. Jadhav was nominal in view of the provisions contained in Section 4(1) of Act No. 45 of 1988. The learned counsel for the appellant relied upon thejudgment of the Supreme Court in the case of Mithilesh Kumari v. Prem Behari Khare . The learned counsel for the respondent relied upon several authorities during course of his argument to which reference would be made by the Court little latter. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber, 1974 as alleged or otherwise. The trial Court has held that the plaintiff purchased the suit flat with this own funds and from his own resources. This Court as the First Appellate Court has reached the same conclusion. 22. The learned counsel for the appellant submits that the transaction pertaining to transfer of the suit flat by the plaintiff in favour of Smt. Shalinibai in December, 1974 or nearabout is liable to be considered as benami transaction. The learned counsel submits that the plaintiff is precluded in law from contending that the plaintiff continued to be the owner of the suit flat notwithstanding the transfer the suit flat in favour of the defendant in record of the Society. There is no merit in this contention of the learned counsel for the appellant. 23. In view of definition of expression benami transaction as set out in the said Section 2(a), it cannot be held that the transfer of the property without consideration are covered by Act No. 45 of 1988. In the case of Bathula Anasuya V. Bathula Rayudu , the High Court of Andhra Pradesh held that the nominal transaction was not covered by the Ordinance No. 2 of 1988 which was replaced by Act No. 45 of 198 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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