9911796707
TMI Blog1997 (11) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... ve and each of the cases continues to govern different provisions of the Act. Appeal dismissed. - - - - - Dated:- 19-11-1997 - Judge(s) : M. JAGANNADHA RAO., S. B. MAJMUDAR JUDGMENT The judgment of the court was delivered by M. JAGANNADHA RAO J.--Civil Appeal No. 6486 of 1983, is filed by Smt. Rebti Devi (since deceased) and is being continued by her son, Sri Mahesh Dutt Gupta, claiming to be her sole legatee under a registered will dated December 18, 1972. This appeal is preferred against the judgment of the Allahabad High Court in Regular Second Appeal No. 1001 of 1973 dated February 29, 1980, arising out of Suit No. 1263 of 1968. In the civil appeal the respondents are the legal heirs of the brother of Mahesh Dutt Gupta, i.e., the late Ram Dutt Gupta. Special Leave Petition No. 17883 of 1997 is filed by the legal representatives of Ram Dutt Gupta (brother of Mahesh Gupta) impleading Mahesh Gupta and other family members against the judgment of the Allahabad High Court in First Appeal No. 378 of 1996 dated May 30, 1997, allowing the appeal of Mahesh Dutt Gupta and granting probate in respect of the will dated December 18, 1972, of Rebti Devi in his favour. Learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel for the plaintiff-appellant (legal representative of Rebti Devi) submitted that the property was standing in the name of Rebti Devi and that the defendants who had come up with a plea of benami had not discharged the onus that was on them. It was also contended, referring to the Benami Transactions (Prohibition) Act, 1988, that the plea of benami raised in defence was not open to the defendants and that in Nand Kishore Mehra v. Sushila Mehra [1995] 215 ITR 218 ; [1995] (4) SCC 572, (which is a three-judge judgment), the principles decided in R. Rajagopal Reddy v. Padmini Chandrasekharan [1995] 213 ITR 340 ; [1995] 2 SCC 630, (which is also a decision of three learned judges) have been doubted and hence the said Act is applicable to the facts of the case even though the defence of benami was raised long before May 19, 1988, when the Act came into force. Learned counsel for the respondents contended that the finding of fact arrived at by the first appellate court was rightly not interfered with by the High Court, and that it did not call for any interference under article 136 of the Constitution of India. It was also submitted that R. Rajagopal Reddy's case, [1995] 213 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to May 19, 1988, and no suit could be filed on the basis of such a plea after May 19, 1988. The same prohibition applied in the case of section 4(2) to a defence taken after May 19, 1988, pleading benami in respect of a transaction prior to May 19, 1988. The Act could be said to be retrospective only to that extent. But from this it did not follow that where such a plea was already taken before May 19, 1988, to the effect that the property was held benami, such a plea got shut out merely because the proceeding in which such a plea was raised before May 19, 1988, was pending on May 19, 1988. (3) Thirdly, where a suit had been filed before May 19, 1988, and in any written statement filed on or after May 19, 1988, a plea of benami was raised, then such a plea of benami could not also be gone into. If however such a plea in defence had been raised before May 19, 1988, the Act did not preclude that question to be decided in proceedings which were pending on May 19, 1988. Mithilesh Kumari's case [1989] 177 ITR 97 (SC), was wrong in holding that such a defence could not be decided after May 19, 1988, even though the plea was raised before May 19, 1988. (4) Fourthly, if such an interp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unless of course the case fell within the exceptions stated either in section 3(2) or in section 4(3) of the Act. In that case, this court permitted the plea of benami in a post May 19, 1988, suit because the court was concerned with the exception in section 3(2). The court also incidentally referred to the other exceptions falling under section 4(3). This court in that case noticed that the purchase was on April 24, 1964, and was in the name of the wife. That was why this court proceeded to refer to the exception in section 3(2) which concerns benami purchases in the name of a wife or unmarried daughters. This court also referred to the presumption contained under the same exception in section 3(2) to the effect that unless the contrary was proved, in the cases of purchase in the name of wife or unmarried daughters, it shall be presumed that the property had been purchased for the benefit of the wife or the unmarried daughters. In view of the exception in section 3(2), the prohibition under section 3(1) was held not to apply. It was held that even though the plaint was filed after May 19, 1988, such a plea of benami was not shut out. This court directed that the suit be disposed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceeds to accept the said judgment and then considers the case of exceptions provided in section 3(2). It holds incidentally that there is another exception contained in section 4(3) of the Act. These exceptions apply even to suits filed after May 19, 1988, and are not affected by what is decided in R. Rajagopal Reddy's case [1995] 213 ITR 340 (SC). In order to complete the discussion, we shall also refer to two subsequent cases. The case in Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S. Shalt [1996] 222 ITR 391 (SC), was one where the suit was filed in 1981 claiming that the defendant in whose name the deed dated December 16, 1963, stood was benami. The plaintiff's heirs filed an appeal in the Gujarat High Court in 1990 against the judgment of the trial court. No contention based on the Act of 1988 was raised in the High Court. For the first time, it was argued in this court that the plea was prohibited by the Act. This court, followed R. Rajagopal Reddy's case [1995] 213 ITR 340 (SC), and held that the plea was raised in a suit filed before May 19, 1988, and it was not barred under the Act. This court then proceeded to decide the case on the merits, dismissing the plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X
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