PETITIONER: C.GANGACHARAN Vs. RESPONDENT: C. NARAYANAN DATE OF JUDGMENT: 14/12/1999 BENCH: B.N.Kirpal, R.P.Sethi JUDGMENT:
DER
There “is more than one reason for allowing this
appeal. It appears that the appellant had sent money from
abroad to the respondent to enable him to purchase immovable
property in the name of the appellant. The respondent
purchased properties in his own name and in the names of his
other brothers in India. The appellant on 20th July, 1983
fi1ed.O.S, No. 349/83 for possession of the suit property
or its market value. The case of the appellant was that the
money which was sent was wrongly utilised in purchasing the
properties in the name of the respondent and the brothers
instead of purchasing the same in the name of the appellant.
On 31st July, 1985, suit for possession was decreed
with costs and mesne profits were to be determined in
execution proceedings. The respondent filed an appeal to
the High Court which dismissed the same on 27th August,
1987, inter alia, holding as follows:
“There is no evidence in this case to show that ‘the
plaintiff wanted to benefit the defendants when he provided
funds for purchase of landed properties. On the other hand,
the avidence is overwhelming in this case to the effect that
money was sent by the plaintiff to the defendant in OS. No.
345 of 1983 for the specific purpose of purchasing landed
properties in the name of the plaintiff, but, instead, he
purchased the properties in the name of himself and his
other brothers with the fund so provided by the plaintiff.
Therefore it has to ‘be held that the plaintiff is the
beneficial owner and he is entitled to recover possession of
the plaint schedule properties from the defendants in these
suits. In our view this is a case where S.82 of the Indian
Trusts Act squarely applies,”
A special leave petition filed by the respondent was
dismissed by this Court on 7th April, 1988.
The appellant then- filed an execution application
being E.P. .No. 30/88 before the trial ‘court. Before the
said apoli cation was disposed of, on 19th May, 1988 the
Benami Transactions (Prohibition of the Right to Recover
Property) Ordinance. 1986 was promulgated. Basing on this
Ordinance, objections were filed by the respondent to the
effect that the decree could not be executed inview of the
provisions of the said Ordinance. The executing court
disallowed the objections and thereafter the respondent
filed a revision petition before the High Court. By
judgment dated 2nd August, 1988, the petition was allowed
and in the impugned judgment it was observed that the said
Ordinance of 1988 prohibited the recovery of possession of
the suit, property which was being held by the respondent as
a benami of the appellant herein. It is now well settled
that the executing court cannot go behind the decree of
acourt of competent jurisdiction or without Jurisdictiol.
except when the decree is void ab 1nitio/ In the
present case, the High Court on 27th August, 1387, as is
evident from the passage quoted hereinabove, had given a
categorical finding to the effect that the respondent herein
was only a trustee and the case was governed by Section 82
of the Indian Trusts Act. Section 4 which contains the
prohibition to recover the property held benami expressly .
provides in sub-section (3), clause (b) that the said
Section is not to; apply, inter alia. in a case where the
property is held in the name of a trustee. In view of the
finding of the Migh Court in its judgment of 27th August,
1987 that the . property was being held in the name of the
respondent as a …trustee, the questici of t.he respondent
invoking the provisions of the Benami Transactions Ordinance
or the Act did not arise. The provisions of the Act did not
prohibit a suit being filed against a trustee for the
recovery of the trust property.
That aparti this Court in R. Rajagopal Reddy (Dead)
by LRs and Others vs. Padmini Chandrasekharan (Dead) by.
LRs, 1995 (2) SCC 630, has held that the said Act and the
Ordinance were not retrospective in operation and the Act
did not apply
to pending suits which had already been filed and
entertained prior to the coming into force of Section 4 of
the Act.. This being so, the High Court in the present case
fell in error in setting aside the decision of the executing
court and in holding that the right.of the appellant to
recover possession had. come to an end fay virtue of the
said Act.
For the aforesaid reasons, the appeal is allowed and
the judgment of the High Court under appear dated 2nd
August, 1988 is set aside, with costs throughout.
. By order dated 16th September, 1391, the respondent
herein was directed to deposit Rs.10,000/~’ in the trial
court towards annual mesns profits. When this deposit was
not made, an application was filed by the appellant for
appointment of a Receiver in respect of the suit property.
By order dated 3th February, 1993, the appellant him self
was appointed as a Receiver and was’ put in possession but
he was required to deposit Rs.10,000/- per year in the trial
court. Inview of the fact that the appe”1ant has now
succeeded in this appeal, he is entitled to retain the
possession of the property as an absolute owner thereof and
will be entitled to withdraw from the trial court the amount
deposited by him pursuant to the aforesaid order of this
Court.