9911796707
TMI Blog1990 (11) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 1, was a sham and fictitious transaction. The original owners sold the suit property to the plaintiff, vide registered sale deed, dated October 26, 1960. On August 24, 1960, they leased out the suit land to defendants Nos. 1 and 2 for 99 years on an annual rent of Rs. 500. The plaintiff sought a declaration that the transaction of lease was only a sham and fictitious transaction and was created to circumvent the provisions of the Punjab Pre-emption Act. Defendant No. 1 is the husband of the sister of the plaintiff. Defendant No. 2 is son-in-law of Chunghar Mal, uncle of the plaintiff. The lease deed was created with an express understanding that the plaintiff will retain possession of the suit property and the lease will be only a paper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 and 3 were dealt with together and it was held that the plaintiff had purchased the suit land from Jagan Nath and Wasu Ram and the lease deed dated August 24, 1960, was not a sham transaction issue No. 4 was answered in favour of the plaintiff and it was held that the suit was properly valued for purposes of jurisdiction ; issue No. 5 and the additional issue were not pressed ; under issue No. 6 it was held that defendant No. 2 had failed to prove that there was any collusion between the plaintiff and defendant No. 1 ; issue No. 7 was answered against the plaintiff and it was held that he was estopped by his conduct from filing the suit ; issues Nos. 8 and 9 were answered against the defendants. On appeal by the plaintiff, the first ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act which was then in force. The plea of defendant No. 2 that the sale in favour of the plaintiff was only benami was never put in issue. It was indirectly taken in the written statement but was not pressed before any of the courts below. No evidence was led to substantiate the plea and this plea had not been urged and taken up in the grounds of appeal in this court. Learned counsel for the first time during the course of arguments submitted that, in view of the provisions of section 4 of the Benami Transactions (Prohibition) Act (45 of 1988), the suit was not maintainable and, in support of this submission, he relied upon Mithilesh Kumari v. Prem Behari Khare, [1989] 177 ITR 97 ; AIR 1989 SC 1247. The facts in that case were that the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mi. In the instant case, apart from the indirect assertion in the pleadings that the property in suit was purchased benami in the name of the plaintiff from the vendors, no proof was led to substantiate the plea. A mere allegation that the property is held benami by the plaintiff will not attract the provisions of section 4 of the Benami Transactions (Prohibition) Act. Section 4, ibid, is not attracted to the instant case. Learned counsel for the appellant then submitted that the plaintiff executed sale deeds, exhibits P. W.4/2 and P. W.-4/3, in favour of Bhima and Kishan Lal in respect of the suit land and, in both these documents, it was stated that the vendees were given symbolic possession. The plaintiff indirectly admitted in these d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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