9911796707
TMI Blog1990 (12) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... e stated to exist which showed the transaction to be benami in nature. Kamla Devi sold the house on June 11, 1973, to Smt. Prem Wati Bhandari, defendant No. 2 (hereinafter referred to as the appellant) for Rs. 30,000. It was pleaded by the appellant that the plaintiff, Ved Parkash, had no locus standi to file the present suit and that the house was purchased by her after paying a consideration of Rs. 30,000 before the Sub-Registrar. A number of other pleas were also taken. The trial court, after framing the issues, decreed the suit and gave a declaration to the effect that Ved Parkash, plaintiff-respondent, is the sole owner in possession of house No. 264-R, Model Town, Jalandhar. Smt. Prem Vati Bhandari, the vendee from Kamla Devi, has c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny particular time, date or duration. Once the property is found to have been held benami, no suit, claim or action to enforce any right in respect thereof shall lie. Similarly, sub-section (2) of section 4 nullifies the defences based on any right in respect of any property held benami whether against the person in whose name the property is held or against any other person in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. It means that once a property is found to have been held benami, the real owner is bereft of any defence against the person in whose name the property is held or any other person. In other words, in its sweep, section 4 envisages past benami transactions also within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the real owner in recovering the benami property from the benamidar, the law must apply irrespective of the time of the benami transactions. The expression 'shall lie' in section 4(1) and 'shall be allowed' in section 4(2) are prospective and shall apply to present (future stages) and future suits, claims or actions only. This leads us to the question whether there was a present suit between the plaintiff-respondent and the defendant-appellant on the date of the law coming into force. We have noted the dates of filing the suit and judgments of the courts below. On the date of section 4 of the Act coming into force, that is, May 19, 1988, this appeal was pending and, of course, is still pending. Can the suit itself be said to be pending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chased in the name of the wife or unmarried daughter, still the character of the transaction remains benami and is not taken but of the purview of section 2 (a) of the Act which defines "benami transaction" as any transaction in which property is transferred to one person for a consideration paid or provided by another person. Sub-section (2) of section 3 of the Act, no doubt, creates an exception to the effect that property can be purchased by any person in the name of his wife or unmarried daughter but this does not mean that the rigour of section 4(1) of the Act which bars the filing of a suit, claim or action to recover such a property is taken away. Section 3(1) of the Act provides that no person shall enter into any benami transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 of the Act benami in the name of his wife or unmarried daughter but the right of the real owner to recover the property from the benami holder has been eliminated by section 4 of the Act. Earlier, there was a right to recover or resist the claim of the real owner against the benamidar but now that remedy stands barred and the right rendered unenforceable as has been held by the apex court in Mithilesh Kumari's case [1989] 177 ITR 97. It is a disabling statute and all the real owners are equally affected by the disability provision provided in section 4 of the Act. Hence, I find no force in the submission of learned counsel for the respondent. In view of my finding recorded above, I would not go into the factual merits of this case. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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