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SA/284/2009 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 284 of 2009
With
CIVIL
APPLICATION No. 11750 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
PATEL
HIRALAL VIRCHANDDAS - Appellant(s)
Versus
PATEL
HIRALAL MADHAVLAL & 1 - Defendant(s)
=========================================
Appearance
:
MR MEHUL
SHARAD SHAH for
Appellant(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5,1.2.6 MR RC JANI
for Defendant(s) : 1 - 2, 2.2.5,2.2.6
None for Defendant(s) :
2,
MR HM PARIKH for Defendant(s) : 2.2.1, 2.2.2,2.2.4
MR
RASESH H PARIKH for Defendant(s) : 2.2.1, 2.2.2,2.2.4
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 21/12/2010
ORAL
JUDGMENT
The
present Second Appeal has been filed by the appellants-original
defendants raising the following substantial questions of law:
Whether,
on the facts and circumstances of the case, the so-called
transaction between plaintiffs and defendants is barred by Benami
Transaction (Prohibition) Act, 1988? And whether suit is
maintainable in view of the enactment of the above Act after filing
of the suit and more particularly by virtue of Section 7 of the said
Act, Sections 81, 82 and 94 of the Indian Trust Act are repealed?
Whether,
on the facts and circumstances of the case, the suit, claim or
action to enforce any right in respect of any property held benami
would be maintainable in view of the Benami Transaction
(Prohibition) Act, 1988?
Whether,
on the facts and circumstances of the case, Section 3 of the said
Act would apply or Section 4(3)(B) of the said Act would apply to
the present fact situation?
Whether,
on the facts and circumstances of the case, the lower Appellate
Court is right in holding that Section 4(3)(B) would apply to the
present fact situation?
What
is the meaning of “Fiduciary Relation” and whether, on
the facts and circumstances of the case, it can be said that
relation of uncle (Masa) and nephew is fiduciary relation?
2. The
short facts of the case, briefly stated, are that the plaintiffs
filed a suit being Special Civil Suit No. 87/1980 before the Court of
Civil Judge (S.D.), Mehsana for the prayer of declaration that the
plaintiffs are co-owners of the agricultural land with two-third
share and it may also be declared that the defendants are the
benamidar holding in a trust for and on behalf of the plaintiffs.
The said suit, after considering the evidence which has been
discussed, came to be dismissed by the learned Civil Judge (S.D.),
Mehsana, vide judgment and order dated 5.8.1989. The said judgment
and order was challenged by way of Regular Civil Appeal No. 16/2006
(First Appeal No. 1347 of 1989 before the High Court) which came to
be allowed, whereby the judgment and order passed by the trial court
in Special Civil Suit No. 87/80 was quashed and set aside for the
reasons discussed therein.
3. The
main focus by the lower appellate court was on Benami Transaction
(Prohibition) Act and it has been discussed with reference to the
said Act as well as the provisions of sec. 81, 82 etc. of the Indian
Trust Act. However, it has also been discussed that even though sec.
82 of Indian Trust Act has been repealed, there was fiduciary
relation and the appeal was allowed. Therefore, the present Second
Appeal has been preferred by the appellants raising the aforesaid
substantial questions of law.
4. However,
after hearing for some time, both the learned advocates have stated
that the issue is covered by the judgment of the Hon’ble Apex Court.
Learned advocate Mr. Mehul Shah has referred to and relied upon the
judgment of the Hon’ble Apex Court reported in AIR 1989 SC 1247 and
submitted that the issue or questions of law sought to be raised in
this Second Appeal has been decided and squarely covered. However,
it was pointed out by learned advocate Mr. Parikh that this judgment
has been subsequently overruled in a judgment in the case of R.
Rajagopal Reddy (dead) by LRs and ors. v. Padmini Chandrasekharan
(dead) by LRs, reported in AIR 1996 SC 238, for which discussions are
to be found in Para 7 & 13. Learned advocate Mr. Shah has also,
after perusing the said judgment, fairly stated that the issue is
covered in this judgment also.
5. It
is in this background the substantial questions of law posed in this
Second Appeal would not survive as it has been covered by the
subsequent judgment of the Hon’ble Apex Court in the case of R.
Rajagopal Reddy (dead) by LRs and ors. (supra) and therefore the
present Second Appeal would not survive as there is no substantial
question of law and the same has already been decided.
6. It
is well-settled that the scope of exercise of discretion under sec.
100 of CPC in the second appeal is very limited and only when there
is substantial question of law involved, as observed in catena of
judicial pronouncements including the judgment of the Hon’ble Apex
Court in the case of Gurudev Kaur & ors. v. Kaki & ors.,
reported in (2007) 1 SCC 546 wherein general principles have been
laid down referring to the scope in Para 70 of the judgment, such
discretion is exercised. It is in these circumstances, the present
appeal deserves to be dismissed and accordingly stands dismissed.
7. It
goes without saying that in light of the disposal of the present
appeal, the procedure which is required to be followed would be
undertaken before the appropriate authority which will be decided in
accordance with law expeditiously.
8. In
view of the dismissal of the Second Appeal, the Civil Application
would not survive and the same is accordingly disposed of.
(Rajesh
H. Shukla, J.)
(hn)
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