9911796707
TMI Blog1990 (1) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... ff alleged that one Mariyam Bibi, mother of the plaintiff, took settlement of five katthas of land bearing plot No. 260 appertaining to khata No. 3 of Mouza Bhandaridih, by reason of a registered deed of settlement dated March 10, 1950, and came into possession thereof. It has further been asserted that the aforementioned Mariyam Bibi constructed house over a portion of the aforementioned land being three kathas in area and began to live there with her family members. Admittedly, Mariyam Bibi died in the year 1973 leaving the plaintiff as her only daughter and the aforementioned Lalu Mian, her husband, and as such the plaintiff's share in her property is 3/4ths. According to the plaintiff, there had been a partition between her and Lalu Mian as a result whereof, three kathas of land with house fell to the share of the plaintiff and two kathas of parti land fell to the share of Lalu Mian. Lalu Mian executed a deed of sale dated February 9, 1983, in favour of one Nabisa Khatoon and thereafter he left the village and began to live at his father-in-law's place at Chirua. It has further been asserted that, however, the defendant was allowed to live in one of the rooms of the dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question of law formulated by this court in its order dated September 2, 1988, is not relevant and the following substantial question of law arises for consideration in this appeal: (i) Whether the learned court of appeal below committed an error of record in holding that the defendant in her written statement did not set up the plea of benami and thus it came to a wrong finding that Mariyam Bibi was not the benamidar of Lalu Mian ? Having regard to the fact that the aforementioned question arises on the face of the judgment of the learned court below, I permitted Sri Prasad to argue the aforementioned point. Mr. Prasad drew my attention to para 9 of the written statement and submitted that from a perusal thereof, it would be evident that the defendant had raised the necessary plea of the benami nature of the transaction by Lalu Mian in the name of his wife, Mariyam Bibi. According to learned counsel, the learned trial court on the basis of the evidence on record, came to the conclusion that Lalu Mian was the real owner of the property and constructed the suit premises and, as such, Mariyam Bibi was merely his benamidar. Such a finding of fact has wrongly been reversed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf and has nothing to do with sub-section (2) of section 3 thereof. The President of India, in exercise of its power conferred upon him in article 123(1) of the Constitution of India, promulgated an Ordinance on May 19, 1988, known as the Benami Transactions (Prohibition of the Right to Recovery of Properties) Ordinance, 1988, by reason whereof an embargo was put on persons to claiming a right in a, property held benami and for matters connected therewith and incidental thereto. The aforementioned Ordinance was later on repealed and replaced by a parliamentary Act known as the Benami Transactions (Prohibition) Act, 1988 (Act 45 of 1988). Section 2(a) of the said Act defines "Benami transaction" in the following terms : 'benami transaction' means any transaction in which property is transferred to one person for a consideration paid or provided by another person. Section 3 provides for prohibition of benami transactions in the following terms : "(1) No person shall enter into any benami transaction. (2) Nothing in sub-section (1) shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel, therefore, sections 3 and 4 of the aforementioned Act do not deal with the same subject-matter. In my considered opinion, the submission of learned counsel does not, appear to be correct. As noticed hereinbefore, the said Act itself has been enacted to prohibit benami transaction and the right to recover a property held benami. It is therefore, clear that a right to recover property held benami presupposes the previous benami transaction as unless and until a transaction itself takes place, the question of recovering the property on the basis of such transaction would not arise. Further, such a construction will lead to an absurdity in the sense that whereas a claim or a defence in a suit in relation to a right to recover property held benami would become barred in relation to a benami transaction which takes place after the coming into force of the aforementioned Act, if the plaintiff or defendant can show that he comes within the purview of sub-section (2) of section 3 thereof. The very fact that in Mithilesh Kumari's case [1989] 177 ITR 97, the Supreme Court held that the said Act will have retrospective operation as it seeks to do away with a claim or defence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With those glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his wife, or by father in the name of his son, it must be presumed that they are benamidars, and if they claim it as their own by alleging that the husband or the father intended to make a gift of the property to them, the onus rests upon them to establish such a gift. In Sura Lakshmiah Chetty's case, AIR 1925 PC 181, 182 the law was stated with clarity by Sir John Edge in these words : 'There can be no doubt now that a purchase in India by a native of India of property in India in the name of his wife unexplained by other proved or admitted facts is to be regarded as a benami transaction by which the beneficial interest in the property is in the husband although the ostensible title is in the wife.' It is but axiomatic that a benami transaction does not vest any title in the benamidar but vests in the real owner. When the benamidar is in possession of the property standing in his name, he is in a sense the trustee for the real owner ; he is only a name-lender or an alias for the real owner. In Petherpermal Chetty v. Muniandy Servai [1908] LR 35 IA 98 ; ILR 35 Cal 551, the Judicial Committee quoted with approval the following passage from Mayne's Hindu Law, 7th Edn., para 446 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar. The principle is embodied in section 41 of the Transfer of Property Act. The section makes an exception to the rule that a person cannot confer a better title than he has. The section is based on the well-known passage from the judgment of the Judicial Committee in Ramcoomar Koondoo v. Macqueen [1872] IA Supp. 40, at page 43 : 'It is a principle of natural equity, which must be universally applicable, that where one man allows another to hold himself out as the owner of an estate and a third person purchases it for value from the apparent owner in the belief that he is the real owner, the man who so allows the other to hold himself out shall not be permitted to recover upon his secret title unless he can overthrow that of the purchaser by showing, either that he had direct notice, or something which amounts to constructive notice, of the real title, or that there existed circumstances which ought to have put him upon an inquiry that, if prosecuted, would have led to a discovery of it.' A benamidar is an ostensible owner and if a person purchases from benamidar, the real owner cannot recover unless he shows that the purchaser had actual or constructive notice of the real tit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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