9911796707
TMI Blog1992 (1) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by him alone and he was the real owner of said land. The name of the defendants/ appellants were included in the said sale deeds only as benamidar. The defendants-appellants took the plea that they had paid their part of the sale consideration and the land was jointly purchased in the name of both the parties. It may be noted that the defendant-appellant Om Prakash and plaintiff-respondent Jai Prakash are brothers and defendant-appellant No. 2 Smt. Satyawati is the wife of appellant Om Prakash. It has come on record that the appellant No. 1 Om Prakash was in Government service ever since 1953 and the plaintiff-respondent was looking after the entire agricultural property in the village. Consolidation proceedings also took place in the vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received the assent of the President of India on 5.9.1988. The defendants filed an application on 1.5.1989 for allowing them to take additional grounds made available on the basis of the aforesaid 'Benami Act'. Thereafter special leave was granted by this Court by order dated 21.8.1989 and it was directed that printing of record is dispensed with and appeal will be heard on the special leave petition paper books. The parties were given liberty to file additional documents if any within four weeks and the appeal was directed to be listed on 13.12.1989 for hearing. Pending disposal of the appeal, the parties were directed to maintain status quo as existing on that day. 3. In the above circumstances, the matter came up for hearing b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be allowed to take such plea for which no foundation was laid in the pleadings. 6. The next important and formidable question which arises for consideration is whether any suit relating to benami transactions can be decreed after the coming into force of the Benami Act. this Court in Mithilesh Kumari and Anr. v. Prem Behari Khare [1989]177ITR97(SC) , has already held that the expression shall lie in Section 4(1) and shall allow in Section 4(2) of the Benami Act are prospective and shall apply to present (future stages) and future suits, claims or actions only. The expression any property held benami is not limited to any particular time, date or duration. In a suit for recovery of benami property if any appeal is pending on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. It was vehemently contended by the learned Counsel for the plaintiff-respondent that even if the ratio of Mithilesh Kumari's case is applied, it can be made available only in a case where appeal was pending before the higher Court. It was contended that in the present case, only special leave petition filed on 15th March, 1988 was pending at the time when the Benami Act came into force. It was pointed out that the Ordinance was promulgated on 19.5.1988 and the Benami Act received the assent of the President on 5.9.1988. It was thus contended that no appeal was pending on 19.5.1988 or 5.9.1988 as the special leave was granted much after on 21.8.1989 and thus no advantage can be taken by the defendants-appellants of Section 4 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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