PETITIONER: SMT. REBTI DEVI Vs. RESPONDENT: RAM DUTT & ANR. ETC. DATE OF JUDGMENT: 19/11/1997 BENCH: S.B. MAJMUDAR, M. JAGANNADHA RAO ACT: HEADNOTE: JUDGMENT:
THE 19TH DAY OF NOVEMBER, 1997
Present:
Hon’ble Mr.Justice S.B.Majmudar
Hon’ble Mr.Justice M.Jagannadha Rao
Arvind Kumar and Mrs.Laxmi Arvind Kumar and Mrs. Laxmi
Arvind, Advs for the appellant.
Mrs. S.Janani, Adv. for the Respondents.
J U D G M E N T
The following Judgment of the Court was delivered:
WITH IA NO. 1 OF 1996 IN SLP (C) NO. 17883 OF 1997
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 18.12.1972. This appeal is preferred
against the judgment of the Allahabad High Court in Regular
Second Appeal No. 1001/1973 dated 29.2.1980 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. late Ram Dutt Gupta.
Special Leave Petition No. 17883/1997 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 30.5.1997 allowing the appeal
of Mahesh Dutt Gupta and granting probate in respect of the
will date 18.12.1972 of Rebti Devi in his favour. Learned
counsel for the petitioners in S.L.P has fairly stated that
the S.L.P and IA 1 of 1996 therein are not being pressed.
Therefore, we are left only with Civil Appeal No. 8486 of
1983 and in view of the dismissal of S.L.P., Mahesh Dutt
Gupta can continue the said Civil Appeal in the place of his
deceased mother Rebti Devi. The result also is that Mahesh
dutt can also claim as heir to such interest which Rebti
has; even if her case of being real owner of the property is
rejected once again in this Court.
The Suit No.1263 of 1968 out of which the Civil Appeal
arises was filed by Smt. Rebti Devi for possession of
property from the occupation of one of her sons Ram Dutt
Gupta. The plaintiff has impleaded Ram Dutt Gupta as 1st
defendant and his son Surendra Nath Gupta as 2nd defendant.
She claimed that she purchased the suit property on 1.6.1995
under a registered sale deed for Rs. 5000/- out of the
income derived by her by lending her money regularly. She
also pleaded that her husband Ujagar Lal had no movable or
immovable property. Apart from Ram Dutt, she has other
children Brahm Dutt, Ramesh Dutt, Mahesh Dutt and daughters
Prem Devi, Chandrakanta. She claims that the sons separated
and that in 1960 she permitted Ram Dutt to occupy the ground
floor of the suit property for his business and as Ram Dutt
did not vacate, she was suing for possession. The defence
of Ram Dutt and his son was that the property was purchased
by his father Ujagar Lal in the name of Ram Dutt’s mother
Rebti Devi benami on 1.6.1995 and that the entire
consideration was paid by his father, that his father was
the real owner and that after his death, the property has
devolved on his wife (plaintiff) and other children in
accordance with law.
Both sides led evidence. The trial Court accepted the
plaintiff’s case in its judgment dated 18.11.1971 and held
that the plaintiff was not a benamidar and her husband was
not the real owner. But on appeal, the appellate Court, in
a well considered judgment, reversed the judgment and decree
and dismissed the suit on 9.3.1973. That judgment was
affirmed by the High Court in Second Appeal on 29.2.1980
Plaintiff preferred this Civil Appeal in this Court.
Learned 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 us with a plea of benami had not
discharged the onus that was on them. It was also
contended, referring to 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 Vs.
Sushila Mehra [1995 (4) SCC 5723 (which is a three judge
Judgment), the principles decided in R. Rajagopala Reddy Vs.
Padmini Chandrasekharan [1995 (2) SCC 630] V(which is also
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
19.5.1988 when the act came into force. Learned counsel for
the respondent contended that the finding of fact arrived it
by the first appellate court was not rightly 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. Rajagopala Reddy’s case holds
good and has not been doubted in Nand Kishore Mehras case.
So far as the first submission of the appellant’s
counsel is concerned, we are of the view that it is true
that the respondent-defendats who have raised a defence of
benami in their written statement have to discharge the
initial burden of proof and establish the plea of benami.
Parties adduced oral and documentary evidence. The lower
appellate Court had considered the evidence adduced by both
sides and arrived at a conclusion that the defendants had
discharged the said burden. When both sides had adduced
evidence, the question of burden of proof pales into
insignificance. The High Court was therefore right in not
interfering with the said finding. The said finding of fact
cannot be convassed in this Civil Appeal by the plaintiff or
her legal representative.
In order to appreciate the second submission, we have
to start here with Rajagopala Reddy’s case [1995 (2) SCC
630] and find out what it actually decided in regard to the
Benami Transactions (prohibition) Act, 1988 (hereinafter
called the ‘Act’). Sections 3,5 and B of the Act came into
force at once i.e. w.e.f. 5.9.1988 while the remaining
provisions were deemed to have come into force from
19.5.1988. The principles decided in that case, while
overruling Mithilesh Kumari Vs. Prem, Behari Khare [1989 (2)
SCC 95], can be summarised as follows:
(1) “Firstly while section 4(1)
prohibited a plea of benami to be
raised in a suit, claim or action
and again section 4(2) precluded a
defence of these two provisions did
not come in the way of a decision
on such pleas in matters pending as
on 19.5.1988 if such pleas were
already raised before 19.5.1988 by
one party or other. This was
because such pleas which were
already raised before 19.5.1989
were not intended to be affected by
the act, if they were raised in
suits, claims or actions pending as
on 19.5.1988. The repeal provision
in Section 7 repealed S. 82 of the
Trust Act only in that manner and
to that extent.
(2) Secondly on the express
language of Section 4(1), any right
inhering in the real owner in
respect of any property held benami
would be not enforceable once
Section 4(1) operated, even if such
transaction had been entered into
prior to 19.5.1988 and no suit
could be filed on the basis of such
a plea after 19.5.1988. The same
prohibition applied in case of
Section 4(2) to a defence taken
after 19.5.1988 pleading benami in
respect of a transaction prior to
19.5.99. 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 19.5.1988 to
the effect that the property was
held benami, such a pleas got shut
out merely because the proceeding
in which such the plea was raised
before 19.5.1988 was pending on
19.5.1988.
(3) Thirdly, where a suit had been
filed before 19.5.1988, and in any
written statement filed on or after
19.5.1988, a plea of benami was
raised, then such a plea of benami
could not also be gone into. If
however such a plea in deference
had been raised before 19.5.1988,
the act did not preclude that
question to be decided in
proceedings which were pending on
19.5.1988. Mithlesh Kumari’s case
was wrong in holding that such a
deference could not be decided
after 19.5.1988 even though the
plea was raised before 19.5.1988.
(4) Fourthly, if such an
interpretation as stated in (1 to
(3) was given, it could not be
validly contended that a question
of invalid discrimination arose
between cases where suits were
filed on or before 19.5.1988 and
those filed after 19.5.1988.
(5) Fifthly, even though the word
‘suit’ might include appeal or
further appeals, Section 4(1) and 4
(2) could not be made applicable to
these subsequent stages.
(6) Sikthly pleas by plaintiffs or
applicants and defences after
19.5.1988 of real owners against
benamidars were barred under
section 4(1) and section 4(2), only
to the extent indicated above.
This is substance is what was decided in R. Rajagopala
Reddy’s case.
We shall now take up Nand Kishore Mehra’s case [1995
(4) SCC 572]. As we shall presently show, that case was
concerned with a different factual situation and different
legal principles. We have sent for the record in that case
and find that there the suit was filed on 24.1.1991 (i.e.
after 19.5.1988) by the appellant pleading that he purchased
the property on 24.4.1964 in trust for himself but in the
name of hi wife. (the defendant). The wife relied on the
Act and filed an I.A. for rejection of the plaint under
Order 7 Rule 11 C.P.C. The Delhi High Court (on Original
Side) in its order dated 18.11.1993 dismissed the
application under Order 7 Rule 11 filed by the wife for
rejection of the plaint. On appeal by the defendant – wife,
a Division Bench of the High Court by judgment dated
21.4.1994 allowed the (wife’s) appeal and directed rejection
of the plaint as the Division Bench felt that Section 3(1)
of the Act applied. On further appeal by the plaintiff
husband, this Court allowed the appeal and the application
under Order 7 Rule 11 filed by the defendant wife was
dismissed and the suit was directed to be disposed of on
merits, taking into account the statutory presumption under
Section 3(2) and holding that Section 3(1) did not apply
because the case fell under the exception contained in
Section 3(2).
The Court referred to R. Rajagopala Reddy’s case [1995
(2) SCC 630]. The plaint being subsequent to 17.5.1988, the
principle that the act was not retrospective as stated in
R.Rajagopala Reddy’s case was no doubt initially not
attracted to that case. That would mean that Section 4(1)
applied unless of course the case fell within the exception
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 19.5.88 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
24.4.1964 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 purchases 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
19.5.1988 such a plea of benami was not shut out. This Court
directed that the suit to be disposed of course by applying
the statutory presumption contained in Section 3(2) which is
to be mandatorily drawn but which is rebuttable. The
plaintiff in a suit filed after 19.5.1988 could still prove
that the property had not bee purchased by him for the
benefit of his wife and he could rebut the presumption, and
claim that he was the real owner.
Therefore, to the six principles hereinbefore culled
out from R.Rajagopala Reddy’s case, the following further
principles decided in Nand Kishore Mehra’s case can be
added:
“(7) Seventhly, if in a suit, claim
or action a plea or defence based
on benami is raised even after
19.5.1988 and the purchase is in
the name of a wife or unmarried
daughter, such a plea of benami is
permissible and R.Rajagopala
Reddy’s case will not come in the
way merely because the plea is
raised after 19.5.88. Such a plea
if raised, will however have to be
decided taking into account the
statutory presumption laid down in
section 3(2). This is because the
act says that if the purchase is in
the name of the wife or unmarried
daughter, the prohibition in
section 3(1) will not apply.
Section 3(2) is enacted as an
exception to the provisions in the
act and does not depend for its
interpretation on the question as
to what extent section 4(1) and
4(2) are retrospective.
(8) Eighthly, if the case falls
within the exception in section
4(3)(a) i.e. where the person in
whose name the property is held is
a coparcener in a Hindu Undivided
Family and the property is held for
the benefit of the coparceners in
the family, or where as stated in
section 4(3)(b) the person in whose
name the property is held is a
trustee or other person standing in
a fiduciary capacity and the
property is held for the benefit of
another person for whom he is a
trustee or towards whom he stanos
in such capacity, then in both
situations if such a plea or
defence is raised in a suit filed
after 19.5.88, the same can be
decided by the Court
notwithstanding sections 4(1) or
4(2) and notwithstanding what is
decided in R.Rajagopala Reddy’s
case.”
For the above reasons, we are unable to find how Nand
Kishore Mehra’s case can be said to have doubted
R.Rajagopala Reddy’s case. In fact far from doubting it, it
proceeds 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 19.5.1988 and are not affected by what is
decided in R.Rajagopala Reddy’s case
In order to complete discussion, we shall also refer to
two subsequent cases. The case in Heirs of Vrajlal Ganatra
Vs. Heirs of Parshottam S. Shah 1996 (4) SCC 490 was one
where the suit was filed in 1981 claiming that the defendant
in whose name the deed dated 16.12.1963 stood was benami.
The plaintiff’s heirs filed appeal in 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 High Court. For the
first time it was argued in this Court that the plea was
prohibited by the Act. This Court, followed R.Rajagopala
Reddy’s case and held that the plea was raised in a suit
filed before 19.5.1988, and it was not barred under the
act. This Court then proceeded to decide the case on
merits, dismissing the plaintiff’s appeal.
Sankana Hali & Sankana Institute Vs. Kishori Lal Goenka
[1996 (7) SCC 55] decided on 6.12.1994 is by a three judge
Bench. It was decided before R.Rajagopala Reddy’s case but
is reported later. In a way it took the same view as in
R.Rajagopala Reddy’s case. It noticed that Section 3, 3 and
8 of the Act came into force at one i.e. 5.9.1988 and the
remaining provisions came into force from 19.5.1988 and that
the objection that the deed of release dated 24.2.1964 by
the benamidar in favour of the firm was invalid because of
the Act, could not be permitted to be raised after
19,5,1988. In that case, the rent control proceedings
started around 1970 and the plea of benami was raised and
was also proved by the firm, the real owner, by relying on
the release deed dated 24.12.64 executed by the benamidar in
favour of the firm. The objection that the deed was invalid
because of the provisions of the Act was raised after
19.5.88, relying upon Mithilesh Kumari’s case [1989 (2) SCC
95] which held the Act was retrospective. That judgment has
since been reversed in R.Rajagopala Reddy’s case. It is
clear that the conclusion arrived at in Sankana Hali’s case
can now be easily justified by R. Rajagopala Reddy’s case
overruling Mithilesh Kumari’s case and on the basis of the
principles laid down in the said case.
For the aforesaid reasons we hold that the decision in
R. Rajagopala Reddy is not in any manner snaken by anything
said in Nand Kishore Mehra’s case and that both cases deal
with different aspects of the Act as stated above and each
of the cases continues to govern different provisions of the
act.
Civil Appeal and Special Leave Petition are dismissed