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TMI Blog2010 (2) TMI 1297X X X X Extracts X X X X X X X X Extracts X X X X ..... tiff is that he purchased the suit property of course in the name of his mother, as the petitioner herein was a bachelor then. The mother has no independent source of income. Therefore, he is the absolute owner of the suit property. 5. The petitioner/defendant resisted such a plea emanated from the plaintiff. The petitioner/defendant contends that she is the absolute owner of the suit property. It is further contended that as per Section 4 of the Benami Transaction (Prohibition) Act, 1988 the respondent/plaintiff is debarred from filing a Suit making a claim over the property which was allegedly held Benami in the name of his mother. 6. A separate petition in I.A. No. 5010 of 2007 was filed by the petitioner/defendant praying to rejec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laid as against him. The said provision will not apply to a Suit or appeal which was already pending. The Courts have held that Section 4 of the said Act will have prospective operation and net retrospective operation to mean that Section 4(1) and (2) of the Benami Transaction (Prohibition) Act, 1988 would not apply to the pending Suit or Appeal. 11. The Hon'ble Supreme Court in Rajappa Hanamantha Ranoji v. Mahadev Channabasappa 2000(6) SCC 120 : II (2000) CLT 251 (SC) , has categorically held as follows: 9. In R. Rajagopal Reddy v. Padmini Chandrasekharan, this Court has overruled the excision in the case of Mithilesh Kumari and has held that the provisions of Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 are no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Legislature while imposing an embargo on the institution of a Suit by the real owner as against the ostensible owner to enforce his right with respect to the Benami transaction. 13. To fortify his submission, the learned Counsel appearing for the respondent submits a decision of the Hon'ble Supreme Court in Sankara Hall and Sankara Institute of Philosophy and Culture v. Kishori Lal Goenka and Anr. : 1996(7) SCC 55, wherein the Hon'ble Supreme Court has held as follows: A reading of Section 4 of the Act shows that the real owner is precluded from claiming title to the property against the person holding the same Benami either by way of assertion or defence. Under the Act any transaction entered into prior to the coming into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y specific provision in the Act. We are, therefore, of the opinion that the High Court was wrong in concluding that the title continued in Surender Kumar. We set aside that part of the High Court's finding and hold that the appellant was the owner of the property insofar as it related to the interest of Surender Kumar therein. That was the case where a tenant in occupation of the premises resisting the proceedings initiated for eviction, contended that the petitioner who laid the eviction proceedings was not the real owner of the property. On facts set out in the said case, it is found that the ostensible owner released his interest in the properly in favour of the real owner admitting his position as Benamidar way back in the year 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the property in favour of the real owner of the property long prior to the coming into force of the present Act. 15. In view of the above, the Court find that the plaintiff has filed the Suit after coming into force of the Benami Transaction (Prohibition) Act, 1988 in order to enforce his right under Benami transaction which is specifically barred under Section 4(1) of the Benami Transaction (Prohibition) Act, 1988. 16. The Trial Court has simply made an observation that sufficient materials were not produced before it to come to a decision as to whether the subject transaction squarely falls under the provision of the Benami Transaction (Prohibition) Act, 1988 and chose to dismiss the petition filed by the defendant seeking reje ..... X X X X Extracts X X X X X X X X Extracts X X X X
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