9911796707
TMI Blog1989 (3) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... that she had been in possession of the plaint schedule property for the last 50 years and the income from this property was set apart for the conduct of poojas and other ceremonies in the aforesaid samadhi stanam nagam. In 1967, an R. C. C. building was put up on the property at the place of worship according to the wishes of the "Gurunadhan". Religious ceremonies are being performed in the "samadhi". The plaintiff further alleged that the defendants have no title or possession over the property. After the filing of the written statement submitted by the defendants, the plaintiff amended the plaint and added paragraph 5a to the plaint. An additional prayer for declaration was incorporated in the plaint. In para 5a of the plaint, the plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efendants. The defendants filed an appeal before the sub-court, Tellicherry, and the learned sub-judge held that the plaintiff had been in possession of the property and the decree for permanent prohibitory injunction was confirmed. The defendants challenge the judgment and decree passed by the courts below. The trial court as well as the lower appellate court found that the disputed property has been in the possession of the plaintiff. The finding regarding the possession has been entered on the basis of some documents produced by the plaintiffs. These documents showed that it was at the instance of PW-1, the son of the original plaintiff, Madhavi, that the " samadhi stanam nagam" was constructed on the eastern side of the property. On t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t A-11 document was executed in the name of Yesoda, her daughter, consideration in fact, was paid by the plaintiff. That seems to be the present case of the plaintiff. It is important to note that the plaintiff did not plead any such case in the plaint. However, by an amendment of the plaint, certain additional pleadings were incorporated and even then the plaintiff did not specifically allege that the plaintiff, Madhavi, purchased the property in the name of Yesoda and that exhibit A-12 also was executed at the instance of the plaintiff and that she paid consideration for that. The plaintiff only alleged that Krishnan never possessed or enjoyed this property and even before exhibit A-12 sale deed, the property was in continuous enjoyment b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property". It may be noted that this court in Velayudhan Ramakrishnan v. Rajeev [1988] 174 ITR 482 (Ker) considered the scope and effect of section 4 of the Benami Transactions (Prohibition) Act, 1988, on a pending suit and it was held (headnote): "The words 'no defence' convey an emphasis of extraordinary rigour ; they rope in all that is within the vision and in the horizon. The succeeding words, 'shall be allowed in any suit, claim or action', are equally wide and equally sweeping in their effect and operation. The deprivation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but the sale deed mentions X as the purchaser. Here the sale itself is genuine, but the real purchaser is B, X being his benamidar. This is the class of transactions which is usually termed as benami. But the word 'benami' is also occasionally used, perhaps not quite accurately, to refer to a sham transaction, as for example, when A purports to sell his property to B without intending that his title should cease or pass to B. The fundamental difference between these two classes of transactions is that whereas in the former there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none such, the transferor continuing to retain the title notwithstanding the execution of the transfer deed. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiff wanted to set up a case of benami. Moreover, the present contention of the plaintiff that the transaction was not benami transaction cannot be accepted in view of the definition of "benami transaction" in section 2 (a) of the said Act. Section 2 (a) reads as follows : " benami transaction' means any transaction in which property is transferred to one person for a consideration paid or provided by another person." Here the case is that the plaintiff paid consideration and that Krishnan never obtained the possession under exhibit A-12 transaction. The plaintiff respondents are not entitled to raise such a plea and the court cannot enforce any right against the defendants on that basis. This is clear from section 4 of the said Act. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
