JUDGMENT
The appellant is the original plaintiff and the respondents are the original defendants 1, 2 and 4 to 7. For the sake of convenience, the parties shall be referred to as original plaintiff and original defendants.
2. The brief facts are as under :
The plaintiff filed a suit for possession, for declaration and partition. The plaintiff and defendants 1. and 3 are the brothers and defendants 4 to 7 are their sisters and defendant No. 2 is a nephew of the plaintiff. The father of the plaintiff and defendants died about 30 years before filing of the suit and left behind him agricultural land, house of Bhojapur and Gopiwada and residential house in Ramnagar at Bhandara. After his death, Banabai the mother of the parties was managing the affairs of the Joint Hindu Family. The case of the plaintiff is that though the partition was not made, in order to avoid repeated quarrels they were living separately. It is the case of the plaintiff that their father had purchased Kh. No. 273/1 area admeasuring 9.47 acres for a consideration of Rs. 14,000 by a registered sale-deed dated 4-9-1941 and it was purchased jointly in the name of the plaintiff, defendant No. 3 and Rangrao. It is their case that this land and house at Gopiwada was sold to 3 persons and out of the sale-proceeds, the land Kh. No. 380, area admeasuring 8.76 acres at village Bhandara was purchased by a registered sale-deed. It is their case that since Banabai was the Manager of the Joint Family property and the defendant were minors, the sale-deed was registered in her name as Benamidar.
3. It is the further case of the plaintiff that the plaintiff was cultivating one acre of land at Bhojapur and two acres from the suit field. In the year 1982-83 the plaintiff had sown paddy and tur crops in the two acres out of the said field but the defendants 1 and 2 damaged the crop and disturbed their possession on 30-7-1983. The plaintiff, therefore, issued a notice dated 29-7-1983 and demanded 1/4th share in the suit property. The defendants served a notice on the plaintiff dated 28-7-1981 in which it was mentioned that this land was gifted by Banabai to defendants 1 and 2 by gift deed dated 11-6-1980. The plaintiff, therefore, issued notice dated 4-7-1981 and challenged the gift-deed. The plaintiff, therefore, filed the suit challenging the gift-deed on the ground that it was obtained fraudulently and sought declaration that the gift-deed dated 11-6-1980 was not legal and it was not binding on him and that he should get 1/4th share in the suit property.
4. Defendants 1 and 2 filed their written statement and denied the claim of the plaintiff. Though, the relationship between the parties was admitted, they stated that they had become the exclusive owners of the suit land as deceased Banabai had gifted this land to them by a registered gift-deed. It was further averred in the written statement that there was a partition and, therefore, the plaintiff had taken his share. The trial court framed issues and decreed the suit of the plaintiff and declared that the gift-deed dated 11-6-1980 was not valid and that the land admeasuring 6.57 acres should be divided equally in 3 parts and one share should be given to the plaintiff. The defendants filed the appeal before the lower Appellate Court. The lower Appellate Court allowed the appeal and set aside the judgment and order passed by the trial court. The lower Appellate Court came to the conclusion that the sale-deed in favour of Banabai was not a Benami Transaction and that by virtue of the said transaction late Banabai was the exclusive owner of the suit land. The lower Appellate Court therefore, set aside the finding of the trial court that the said transaction was Benami transaction.
5. This second appeal was admitted on 6-11-1992 and the following order was passed :
“Heard Advocates. Admitted on ground No. C, which is a substantial question of law involving interpretation of the provisions of the Benami Transactions (Prohibition) Act. Notice on merits.”
Ground No. C is reproduced hereinbelow :
“Could Banabai execute a gift-deed in favour of the respondents 1 and 2 admittedly when the suit land was purchased from the sale proceeds of the Joint Hindu Family Property.”
6. The short question which is raised in this second appeal is whether Banabai could execute a gift-deed in respect of the suit land which was purchased by her as Benamindar and secondly whether the suit transaction would be hit by the provisions of the Benami Transactions (Prohibition) Act, 1988.
7. I have heard the learned counsel appearing on behalf of the appellant. He submitted that the lower Appellate Court has erred in holding that the said transaction was not a Benami Transaction in view of the specific bar of sections 3 and 4 of the Benami Transactions (Prohibition) Act, 1988. The learned counsel appearing on behalf of the appellant submitted that in fact so far as the said transaction is concerned viz., the sale-deed executed in favour of Banabai was executed before the Benami Transactions (Prohibition) Act, 1988, came into force and as such the bar as provided under sections 3 and 4 would not be applicable retrospectively in respect of the transactions which were executed prior to coming into force of the said Act. He relied on the judgment in the case of R. Rajagopal Reddy v. Padmini Chandrasekharan 1996 (Suppl) Bom. C.R. (SC) 367, in which the Apex Court held that section 4 of the said Act shall not retrospective in operation. He further relied on the judgment of the Apex Court in a case of Probodh Chandra Ghosh v. Urmila Dassi (2000) 6 SCC 526 where the Apex Court held that though section 4(1) was not retrospective in operation, it could cover the past transactions between the real owner and Benamidar but only in the sense where the transactions have taken place prior to coming into force of the Act where a suit in respect of such transaction would not lie after coming into force of the Act. However, it was clarified that the bar of section 4 would not be applicable to a suit, claim or action which was pending on the date the Act came into force. In the present case the said transaction had taken place in the year 1956 much before the suit was filed, i.e., much prior to said Act coming into force and as such claim was not pending on the date on which the Act came into force. In my view, the submission of the learned counsel appearing on behalf of the appellant will have to be accepted. In my view the ratio laid down by the Apex Court is very clear and since there cannot be retrospective application to the provisions of the said Act, it will have to be held that the suit was maintainable. The lower Appellate Court was obviously in error in coming to the conclusion that the sale-deed executed in the name of Banabai could not be treated as Benami transaction in view of section 3 of the said Act and, therefore, she was treated as owner. The said finding of the lower Appellate Court is clearly contrary to the ratio laid down by the Apex Court as stated hereinabove.
8. In my view, the reasoning of the learned lower Appellate Court is clearly erroneous. In the present case, the admitted position is that the father of the plaintiff died in the year 1952; Banabai in 1956 purchased the suit property after selling one land which was purchased by her husband Sonu and one house and since all the other parties were minor the suit property was purchased in her name. Both the trial court as well the lower Appellate Court have come to the conclusion that the defence of the defendant that the plaintiff had received his share of Rs. 940 was not proved. Thus, this is an admitted position that Banabai had purchased the property out of sale proceeds of the property i.e. suit field and one house which was purchased by Sonu her husband and father of the plaintiff and defendants. The plaintiff and other defendants had undivided interest in the suit property and Banabai therefore, had no right to gift this property to defendants 1 and 2 to the exclusion of the other co-parceners. In this view of the matter, judgment and order passed by the lower Appellate Court is set aside and the judgment and order passed by the trial court is confirmed.
9 . The Second Appeal is allowed. Under the circumstances, there shall be no order as to costs.
Second appeal allowed.