High Court
Legal Reasoning
1 SA.197-1995+1.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO.197 OF 1995WITHCIVIL APPLICATION NO.3262 OF 1995IN SECOND APPEAL NO.197 OF 1995Safdar Ali Deshmukh S/o Sujat Ali Deshmukh,Since deceased through his legal representative,Sirajuddin s/o Safdarali Deshmukh,Age major, Occu. Agril.,R/o Beed, Tq. & Dist. Beed.… Appellant. Versus1.Atiya Sultana W/o S.K. Nazir,Since died through her legal representatives,1/1SK Abdul Nazir s/o Abdul Kadar,Age 75 years, Occu. Nil,R/o Nariman Nagar, Near Railway Station,Old Jalna, Jalna, Dist. Jalna.1/2Md. Jameel Shaikh,Age 46 years, Occu. Business,R/o Nariman Nagar, Near Railway Station,Old Jalna, Jalna, Dist. Jalna.1/3Muzammil Begum D/o SK Abdul Nazir,Age 44 years, Occu. Household,R/o Nariman Nagar, Near Railway Station,Old Jalna, Jalna, Dist. Jalna.1/4Mudassir Begum D/o SK Abdul Nazir,Age 42 years, Occu. Household,R/o Nariman Nagar, Near Railway Station,Old Jalna, Jalna, Dist. Jalna.1/5Anjum Begum D/o SK Abdul Nazir,Age 39 years, Occu. Household,R/o Nariman Nagar, Near Railway Station,Old Jalna, Jalna, Dist. Jalna. 2 SA.197-1995+1.odt1/6Md. Khalil Shaikh S/o SK Abdul Nazir,Age 37 years, Occu. Business,R/o Nariman Nagar, Near Railway Station,Old Jalna, Jalna, Dist. Jalna.1/7Md. Hakim Shaikh S/o SK Abdul Nazir,Age 34 years, Occu. Business,R/o Nariman Nagar, Near Railway Station,Old Jalna, Jalna, Dist. Jalna.1/8Farheen Begum D/o SK Abdul Nazir,Age 31 years, Occu. Household,R/o Nariman Nagar, Near Railway Station,Old Jalna, Jalna, Dist. Jalna.1/9Md. Mujeeb Shaikh S/o SK Abdul Nazir,Age 29 years, Occu. Business,R/o Nariman Nagar, Near Railway Station,Old Jalna, Jalna, Dist. Jalna.2.Asmat Beg S/o Dilawar Beg,Age 34 years, Occu. Labourer,3.Asad Beg S/o Dilawar Beg,Age 33 years, Occu. Labourer,4.Shahad Beg S/o Dilawar Beg,Age 19 years, Occu. Nil,5.Naseem Sultana D/o Dilawar Beg,Age 24 years, Occu. Nil,6.Nayeem Beg, Age 22 years,7.Javed Beg, Age 20 years,8.Wasim Beg, Age 16 years,9.Salim Beg, Age 16 years,Nos.8 & 9 minors u/g of their brotherplaintiff No.2Above all R/o Jalna, Tq. & Dist. Jalna. 3 SA.197-1995+1.odt10.Aquila Sultana W/o Salar Khan,Age 40 years, Occu. Household,R/o Mandwa, Taluka Mehkar,District Buldhana.… Respondents....Advocate for Appellant : Mr. M. M. Patil-Beedkar.Advocate for Respondent Nos.1/1 to 1/9, 2 to 10 : Mr. KshitijSurve – Through V. C. …CORAM : S. G. MEHARE, J.RESERVED ON : 11.12.2023PRONOUNCED ON : 19.01.2024JUDGMENT :- 1.Heard the learned counsels for the respective parties.2.The defendant has preferred this second appeal againstthe judgment and decree of learned 3rd Additional DistrictJudge, Beed, passed in Regular Civil Appeal No.286 of 1984,dated 11.01.1995. 3. The "appellant" will be referred to as the "defendant", andthe "respondents" will be referred to as the "plaintiffs". 4.The plaintiffs had a case that the suit field of villagePendgaon, Taluka Beed, were owned by Dilawar Beg, theirfather. Dilawar Beg died five years back. The defendant had noconcern with the suit lands. The defendant was an influentialperson and a big landlord. The defendant took advantage of 4 SA.197-1995+1.odtthe poverty of the deceased Dilawar Beg and illegallydispossessed him seven years back. The possession of thedefendant was illegal and unauthorized. He was a trespasser.They often requested the defendant to hand over thepossession, but he denied it. Hence, they filed a suit forpossession. 5.The defendant resisted the suit, claiming that thedeceased Dilawar was a Benamidar. The plaintiff did not pleadhow Dilawar acquired the title of the suit field. The plaint isvague and ambiguous. The defendant is the real owner andactual possessor of the suit field. Late Dilawar Beg was theBenamidar. He had no beneficial interest in the suit field,which was standing in his name nominally. His legal heirs wereonly the trustees and never acquired the title. Dilawar Beg washis maternal brother. He was financially poor. The family ofDilawar Beg had no property. He was brought from the villageAntarwali. He educated him. Dilawar Beg started looking afterthe defendant's properties. He was MLA. He had no time tolook after the lands. He had confidence in the deceasedDilawar Beg. The defendant performed his post-deathceremonies. The suit fields were purchased in the name ofDilawar Beg. Dilawar Beg had no financial capacity to purchase 5 SA.197-1995+1.odtthe suit fields for Rs.1,000/- and Rs.2,000/- each. The saledeeds were Benami. Therefore, the suit is liable to bedismissed.6.The learned Court of first instance appreciated theevidence and dismissed the suit. However, the First AppellateCourt reversed the judgment of the Court of First Instance,holding that Section 4 of the Benami Transactions(Prohibition) Act, 1988 (the Act of 1988) prohibits the defenceof Benamidar. It was further held that the defendant could notclaim the real ownership of the suit fields based on the saledeed dated 17.06.1960 (Exh.54). The plaintiffs, being the legalheirs of Dilawar Beg, were entitled to get the possession anddecreed the suit.7.The second appeal was admitted as per the followingorder :"There involves a substantial question of law on thepoint of Benami Transaction."8.Hearing the respective learned counsels, the substantialquestion of law is re-formulated as follows : 6 SA.197-1995+1.odt1.Was the defendant prohibited from raising thedefence of Benamidar as provided under Section 4 ofthe Benami Transactions Act, 1988?2.Did the Benami Transactions (Prohibition) Act1988 has a retrospective effect?9.Learned counsel for the appellant, referring to the factsof the case, has vehemently argued that the Act of 1988 cameinto force during the pendency of the suit. Since the Act cameinto force subsequent to the defence raised, Section 4 of theAct of 1988 does not apply. The ratio laid down in MithileshKumari Vs. Prem Behari Khare ; AIR 1989 SC 1247 has beendeclared not a good law. He relied on the case of R. RajagopalReddy (Dead) by L.Rs. and others Vs. PadminiChandrasekharan (Dead) by L. Rs. ; 1995 AIR SCW 1422. Healso relied on the case of Rebti Devi Vs. Ram Dutt andanother ; (1997) 11 Supreme Court Cases 714 and SamittriDevi and another Vs. Sampuran Singh and another ; 2011 AIRSCW 680. The sole question of law is whether the defendantcould raise the defence of Benami involved in the case. Hefurther argued that the defence was available to the defendantbecause the Act of 1988 was not enacted when the defencewas raised. The First Appellate Court did not consider the factsin detail. It was proved that the defendant paid the sale 7 SA.197-1995+1.odtconsideration. The First Court of Instance correctly appreciatedthe evidence. Dilawar Beg had no means to purchase the suitlands. During his lifetime, he never complained aboutdispossession because he knew that the defendant was theowner of the suit field and he was cultivating for him. Revenueentries are for fiscal purposes. It does not confer the title. Oncethe title goes, 7/12 entries are immaterial. He prayed to allowthe appeal. 10.Per contra, learned counsel Mr. Surve for therespondents has vehemently argued that the First AppellateCourt has correctly applied the law laid down in the case ofMithilesh Kumari (supra). The First Appellate Court correctlyheld that the revenue record was in favour of the plaintiffs.The relationship, as claimed by the defendant, was denied. Thepresumption of the revenue record was not rebutted. The caselaw relied upon by the defendant does not apply to the case athand. The defendant could not raise the defence of the benamitransaction in view of Section 4 of the Act of 1988. The Act of1988 was retrospective. Hence, it was applied to the pendingcases. 11.Considering the issues involved in this case. Particularly,upon the retrospective effect of the Act of 1988, it would be 8 SA.197-1995+1.odtprofitable to mention certain dates. The suit was filed on16.01.1979. The written statement was filed on 30.08.1979.The Act of 1988 came into force on 19.05.1988. However,Sections 3, 5 and 8 of the said Act came into force on05.09.1988.12.The First Appellate Court dismissed the defence of thedefendant/present appellant, relying on the ratio laid down bythe Supreme Court in the case of Mithilesh Kumari. In the saidcase, the ratio was that though Section 3 is prospective andthough Section 4(1) is also not expressly made retrospective bythe legislature by necessary implication, it appears to beretrospective and would apply to all pending proceedingswherein the right to property allegedly held Benami is indispute between the parties and that Section 4(1) will apply atwhatever stage the litigation might be pending in the hierarchyin the proceeding. The ratio laid down in the case of MithileshKumari was the sole pronouncement of the Hon'ble SupremeCourt when the appeal was decided. The issue of the defenceof the Benami transaction went to the Supreme Court. Thelandmark judgment of the 3 Judges Bench of the SupremeCourt in the case of R. Rajagopal Reddy (Dead) and others Vs.Padmini Chandrasekharan (Dead) by L. Rs. ; 1995 AIR SCW 9 SA.197-1995+1.odt1422 overruled the two Judges' Bench in Mithilesh Kumari. Ithas been held in the said case that Section 4, or for that matterthe Act as a whole, was not a piece of declaratory or curativelegislation.It creates substantive rights in favour of Benamidarsand destroys the substantive rights in favour of the realowners. It creates a new offence of entering into such Benamitransactions. It was, therefore, held that when a statutoryprovision creates new liability and a new offence, it wouldnaturally have a prospective operation, and Section 4 will notapply to pending suits which are already filed and entertainedprior to the Act coming into force. It was further observed thatSection 4(1) places a bar on a plaintiff pleading 'Benami', whileSection 4(2) places a bar on a defendant pleading 'Benami'after coming into force of the Act. In this context, it would beanomalous if the bar in Section 4 is not applicable. If the suitpleading "Benami" is already filed prior to the prescribed date,it is treated as applicable only to the suit which he had filedthereafter. 13.As discussed above, the respondents filed a suit on16.01.1979, and the defendant filed his written statement on30.08.1979. The pleadings were completed before the Act of1988 came into force. In view of the ratio laid down by the 10 SA.197-1995+1.odtHon'ble Supreme Court in the case of R. Rajagopal (citedsupra) and the facts of the present case, the Court is of theview that Section 4(2) of the Act of 1988 does not prohibit thedefendant from raising the defence of benami transaction.Hence, question No.1 is answered in negative.14.A clear verdict has been given in the case of R.Rajagopal (cited supra) that Sections 4(1) and 4(2), as well asSection 3 of the Act of 1988, have no retrospective effect.Hence, question No.2 is answered in the negative. 15.The evidence led before the Trial Court was not seriouslyobjected to before this Court. It was proved that Dilawar Begwas the defendant's relative. The defendant brought him to hisvillage. He was looking after his properties. The defendant hadhuge properties. The defendant proved that the originalplaintiffs had no financial condition to purchase the land. TheCourt of First Instance appreciated the evidence and held thatit was a Benami transaction, and the defendant was the realowner. The father of the plaintiffs was not the true owner.Appreciating evidence, the learned Court of First Instancerecorded the correct findings. The discussion above leads thisCourt to conclude that the appeal should be allowed. Hence,the following order :
Decision
11 SA.197-1995+1.odtO R D E R(i)The appeal is allowed. (ii)The judgment and decree of learned 3rdAdditional District Judge, Beed, passed inRegular Civil Appeal No.286 of 1984, dated11.01.1995, is quashed and set aside.(iii)No order as to costs.(iv)R & P should be returned to the Court of thefirst instance.(v)Civil Application No.3262 of 1995 standsdisposed of. (S. G. MEHARE, J.)...vmk/-