9911796707
TMI Blog2012 (1) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... nt No. 1 Mrs. P.E. Lyall, the appellant herein, is the sister of the plaintiff/Sh. Balwant Singh. The other defendants being defendant Nos. 2 to 4 were the legal heirs of the late brother of the respondent/plaintiff namely, late Sh.George J. Singh. Defendant No. 2 was the widow of late Sh. George J. Singh and defendant Nos. 3 and 4 were the children of late Sh. George J. Singh. Defendant Nos. 2 to 4, after passing of the impugned judgment, had vacated the portion in their possession i.e. a portion in the ground floor of the property. 3. The dispute is now confined only to original defendant No. 1-Smt. P.E. Lyall, who is the appellant in this Court, and between the original plaintiff-Sh. Balwant Singh, who is the respondent herein. 4. I may state that for the sake of convenience I am referring to respondent as the original plaintiff-Sh. Balwant Singh, inasmuch as, Sh.Balwant Singh, original respondent in the appeals expired during the pendency of the appeals and is now represented by his legal heirs. Reference in this judgment will be made to original appellant and the original respondent when the appeals were filed i.e. to plaintiff/respondent-Sh. Balwant Singh and defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by appellant/defendant No. 1 after promulgation of the Act. The written statement, therefore, taking up a defence of benami was clearly prohibited inasmuch as the written statement taking up the defence of benami is specifically barred as per Section 4(2) of the Act. This aspect has been clarified by the Supreme Court in the judgment of R.Rajagopal Reddy (Supra) case which has held as under:- 13. So far as Section 4(2) is concerned, all that is provided is that if a suit is filed by a plaintiff who claims in his favour and holds the property in his name, once Section 4(2) applies, no defence will be permitted or allowed in any such suit, claim or action by or on behalf of a person claiming to be the real owner of such property held benami. The disallowing of such a defence which earlier was available, itself, suggests that a new liability or restriction is imposed by Section 4(2) on a pre- existing right of the defendant. Such a provision also cannot be said to be retrospective or retroactive by necessary implication. It is also pertinent to note that Section 4(2) does not expressly seek to apply retrospectively. So far as such a suit which is covered by the sweep of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the Act. In this context, it would be anomalous if the bar in Section 4 is not applicable if a suit pleading 'benami' is already filed prior to the prescribed date, and it is treated as applicable only to suit which he filed thereafter. It would have the effect of classifying the so-called 'real' owners into two classes - those who stand in the position of plaintiffs and those who stand in the position of defendants. This may be clarified by means of an illustration. A and B are 'real' owners who have both purchased properties in say 1970, in the names of C and D respectively who are ostensible owners viz benamidars. A files a suit in February 1988 i.e. before the coming into force of the Act against C, for a declaration of his title saying that C is actually holding it as his benamidar. According to the petitioner's argument, such a plea would be open to A even after coming into force of the Act, since the suit has already been laid. On the other hand, if D files a suit against B at the same for declaration and injunction, claiming himself to be the owner but B's opportunity to file a written statement comes in say November 1988 when the Act ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l not be allowed by virtue of Section 4(2) of the Act. A further reference to the highlighted portion of para 14 shows that the Supreme Court specifically held that though there was discrimination with respect to defences which were already taken up prior to coming into force of the Act and those defences were pleaded after coming into force of the Act, however, the Supreme Court observed that such discrimination is inbuilt in the provision and a grievance raised that discrimination is caused cannot be sustained. 8. Though, the impugned judgment of the trial Court is a detailed judgment running into 26 pages and deciding all the issues in the two suits, I need not go into the details on any of these aspects inasmuch as the only issue which is required to be determined in this appeal, and as argued before me, was with respect to the plea of benami i.e the appellant claimed that respondent/plaintiff was not a real owner of the property because the funds for the purchase of property were infact given by the father of the parties late Sh. Jivan Singh. Since I am not required to go into the merits of the matter, I am not going into the issue on merits as to whether really the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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