{"id":125598,"date":"1997-11-19T00:00:00","date_gmt":"1997-11-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/smt-rebti-devi-vs-ram-dutt-anr-etc-on-19-november-1997"},"modified":"2016-06-13T15:49:03","modified_gmt":"2016-06-13T10:19:03","slug":"smt-rebti-devi-vs-ram-dutt-anr-etc-on-19-november-1997","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/smt-rebti-devi-vs-ram-dutt-anr-etc-on-19-november-1997","title":{"rendered":"Smt. Rebti Devi vs Ram Dutt & Anr. Etc on 19 November, 1997"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Smt. Rebti Devi vs Ram Dutt & Anr. Etc on 19 November, 1997<\/div>\n
Author: M J Rao<\/div>\n
Bench: S.B. Majmudar, M. Jagannadha Rao<\/div>\n
           PETITIONER:\nSMT. REBTI DEVI\n\n\tVs.\n\nRESPONDENT:\nRAM DUTT & ANR. ETC.\n\nDATE OF JUDGMENT:\t19\/11\/1997\n\nBENCH:\nS.B. MAJMUDAR, M. JAGANNADHA RAO\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t       THE 19TH DAY OF NOVEMBER, 1997
\nPresent:\n<\/p>\n
\t      Hon’ble Mr.Justice S.B.Majmudar
\n\t      Hon’ble Mr.Justice M.Jagannadha Rao
\nArvind Kumar  and Mrs.Laxmi  Arvind  Kumar  and\t Mrs.  Laxmi
\nArvind, Advs for the appellant.\n<\/p>\n
Mrs. S.Janani, Adv. for the Respondents.\n<\/p>\n
\t\t      J U D G M E N T
\n     The following Judgment of the Court was delivered:
\nWITH IA NO. 1 OF 1996 IN SLP (C) NO. 17883 OF 1997
\nM. JAGANNADHA RAO, J.\n<\/p>\n
     Civil Appeal  No. 6486  of 1983  is filed by Smt. Rebti
\nDevi (since  deceased) and is being continued by her son Sri
\nMahesh Dutt  Gupta, claiming  to be her sole legatee under a
\nregistered will\t dated 18.12.1972.  This appeal is preferred
\nagainst the  judgment of the Allahabad High Court in Regular
\nSecond Appeal  No. 1001\/1973  dated 29.2.1980 arising out of
\nSuit No.  1263 of 1968.\t In the Civil Appeal the respondents
\nare the\t legal heirs  of the  brother of  Mahesh Dutt Gupta,
\ni.e. late Ram Dutt Gupta.\n<\/p>\n
     Special Leave  Petition No.  17883\/1997 is filed by the
\nlegal representatives  of Ram  Dutt Gupta (brother of Mahesh
\nGupta) impleading  Mahesh Gupta\t and  other  family  members
\nagainst the  judgment of  the Allahabad\t High Court in First
\nAppeal No.  378 of  1996 dated 30.5.1997 allowing the appeal
\nof Mahesh  Dutt Gupta and granting probate in respect of the
\nwill date  18.12.1972 of  Rebti Devi in his favour.  Learned
\ncounsel for  the petitioners in S.L.P has fairly stated that
\nthe S.L.P  and IA  1 of\t 1996 therein are not being pressed.
\nTherefore, we  are left\t only with  Civil Appeal No. 8486 of
\n1983 and  in view  of the  dismissal of\t S.L.P., Mahesh Dutt
\nGupta can continue the said Civil Appeal in the place of his
\ndeceased mother\t Rebti Devi.  The result also is that Mahesh
\ndutt can  also claim  as heir  to such\tinterest which Rebti
\nhas; even if her case of being real owner of the property is
\nrejected once again in this Court.\n<\/p>\n
     The Suit  No.1263 of 1968 out of which the Civil Appeal
\narises was  filed by  Smt.  Rebti  Devi\t for  possession  of
\nproperty from  the occupation  of one  of her  sons Ram Dutt
\nGupta.\t The plaintiff\thas impleaded  Ram Dutt Gupta as 1st
\ndefendant and  his son Surendra Nath Gupta as 2nd defendant.
\nShe claimed that she purchased the suit property on 1.6.1995
\nunder a\t registered sale  deed for  Rs. 5000\/-\tout  of\t the
\nincome derived\tby her\tby lending her money regularly.\t She
\nalso pleaded  that her\thusband Ujagar Lal had no movable or
\nimmovable property.   Apart  from Ram  Dutt, she  has  other
\nchildren Brahm\tDutt, Ramesh Dutt, Mahesh Dutt and daughters
\nPrem Devi, Chandrakanta.  She claims that the sons separated
\nand that in 1960 she permitted Ram Dutt to occupy the ground
\nfloor of  the suit property for his business and as Ram Dutt
\ndid not\t vacate, she  was suing for possession.\t The defence
\nof Ram\tDutt and his son was that the property was purchased
\nby his\tfather Ujagar  Lal in  the name of Ram Dutt’s mother
\nRebti  Devi   benami  on   1.6.1995  and   that\t the  entire
\nconsideration was  paid by  his father,\t that his father was
\nthe real  owner and  that after\t his death, the property has
\ndevolved on  his wife  (plaintiff)  and\t other\tchildren  in
\naccordance with law.\n<\/p>\n
     Both sides\t led evidence.\tThe trial Court accepted the
\nplaintiff’s case  in its  judgment dated 18.11.1971 and held
\nthat the  plaintiff was\t not a benamidar and her husband was
\nnot the\t real owner.  But on appeal, the appellate Court, in
\na well considered judgment, reversed the judgment and decree
\nand dismissed  the suit\t on 9.3.1973.\t That  judgment\t was
\naffirmed by  the High  Court in\t Second Appeal\ton 29.2.1980
\nPlaintiff preferred this Civil Appeal in this Court.\n<\/p>\n
     Learned  counsel  for  the\t plaintiff-appellant  (legal
\nrepresentative of  Rebti Devi)\tsubmitted that\tthe property
\nwas standing  in  the  name  of\t Rebti\tDevi  and  that\t the
\ndefendants who\thad come  us with  a plea  of benami had not
\ndischarged  the\t onus  that  was  on  them.    It  was\talso
\ncontended, referring  to Benami\t Transactions  (Prohibition)
\nAct, 1988  that the plea of benami raised in defence was not
\nopen to\t the defendants\t and that  in Nand Kishore Mehra Vs.
\nSushila Mehra  [1995 (4)  SCC 5723  (which is  a three judge
\nJudgment), the principles decided in R. Rajagopala Reddy Vs.
\nPadmini Chandrasekharan\t [1995 (2)  SCC 630] V(which is also
\ndecision of  three learned  Judges) have  been\tdoubted\t and
\nhence the  said Act  is applicable  to the facts of the case
\neven though  the defence  of benami  was raised\t long before
\n19.5.1988 when\tthe act came into force. Learned counsel for
\nthe respondent contended that the finding of fact arrived it
\nby the first appellate court was not rightly interfered with
\nby the\tHigh Court,  and  that\tit  did\t not  call  for\t any
\ninterference under Article 136 of the Constitution of India.
\nIt was\talso submitted that R. Rajagopala Reddy’s case holds
\ngood and has not been doubted in Nand Kishore Mehras case.\n<\/p>\n
     So far  as the  first  submission\tof  the\t appellant’s
\ncounsel is  concerned, we  are of  the view  that it is true
\nthat the  respondent-defendats who  have raised a defence of
\nbenami in  their written  statement have  to  discharge\t the
\ninitial burden\tof proof  and establish\t the plea of benami.
\nParties adduced\t oral and  documentary evidence.   The lower
\nappellate Court\t had considered the evidence adduced by both
\nsides and  arrived at  a conclusion  that the defendants had
\ndischarged the\tsaid burden.   When  both sides\t had adduced
\nevidence,  the\tquestion  of  burden  of  proof\t pales\tinto
\ninsignificance.\t  The High  Court was therefore right in not
\ninterfering with the said finding.  The said finding of fact
\ncannot be convassed in this Civil Appeal by the plaintiff or
\nher legal representative.\n<\/p>\n
     In order  to appreciate  the second submission, we have
\nto start  here with  Rajagopala Reddy’s\t case [1995  (2) SCC
\n630] and  find out what it actually decided in regard to the
\nBenami Transactions  (prohibition)  Act,  1988\t(hereinafter
\ncalled the  ‘Act’).  Sections 3,5 and B of the Act came into
\nforce at  once i.e.  w.e.f.  5.9.1988  while  the  remaining
\nprovisions  were   deemed  to  have  come  into\t force\tfrom
\n19.5.1988.   The principles  decided  in  that\tcase,  while
\noverruling Mithilesh Kumari Vs. Prem, Behari Khare [1989 (2)
\nSCC 95], can be summarised as follows:\n<\/p>\n
     (1)  “Firstly  while  section  4(1)
\n     prohibited a  plea of  benami to be
\n     raised in\ta suit,\t claim or action
\n     and again\tsection 4(2) precluded a
\n     defence of these two provisions did
\n     not come  in the  way of a decision
\n     on such pleas in matters pending as
\n     on 19.5.1988  if  such  pleas  were
\n     already raised  before 19.5.1988 by
\n     one  party\t or  other.    This  was
\n     because  such   pleas  which   were
\n     already  raised   before  19.5.1989
\n     were not intended to be affected by
\n     the act,  if they\twere  raised  in
\n     suits, claims or actions pending as
\n     on 19.5.1988.  The repeal provision
\n     in Section\t 7 repealed S. 82 of the
\n     Trust Act\tonly in\t that manner and
\n     to that extent.\n<\/p><\/blockquote>\n
     (2)   Secondly   on   the\t express
\n     language of Section 4(1), any right
\n     inhering  in   the\t real  owner  in
\n     respect of any property held benami
\n     would  be\t not  enforceable   once
\n     Section 4(1) operated, even if such
\n     transaction had  been entered  into
\n     prior  to\t19.5.1988  and\tno  suit
\n     could be filed on the basis of such
\n     a plea  after 19.5.1988.\tThe same
\n     prohibition  applied   in\tcase  of
\n     Section 4(2)  to  a  defence  taken
\n     after 19.5.1988  pleading benami in
\n     respect of\t a transaction\tprior to
\n     19.5.99. The  Act could  be said to
\n     be\t retrospective\t only  to   that
\n     extent.   But from\t this it did not
\n     follow that  where such  a plea was
\n     already taken  before 19.5.1988  to
\n     the effect\t that the  property  was
\n     held benami,  such a pleas got shut
\n     out merely\t because the  proceeding
\n     in which  such the\t plea was raised
\n     before  19.5.1988\twas  pending  on
\n     19.5.1988.\n<\/p><\/blockquote>\n
     (3) Thirdly,  where a suit had been
\n     filed before  19.5.1988, and in any
\n     written statement filed on or after
\n     19.5.1988, a  plea\t of  benami  was
\n     raised, then  such a plea of benami
\n     could not\talso be\t gone into.   If
\n     however such  a plea  in  deference
\n     had been  raised before  19.5.1988,
\n     the  act\tdid  not  preclude  that
\n     question\tto    be   decided    in
\n     proceedings which\twere pending  on
\n     19.5.1988.\t  Mithlesh Kumari’s case
\n     was wrong\tin holding  that such  a
\n     deference\tcould\tnot  be\t decided
\n     after  19.5.1988  even  though  the
\n     plea was raised before 19.5.1988.\n<\/p><\/blockquote>\n
     (4)   Fourthly,\tif    such    an
\n     interpretation as\tstated in  (1 to
\n     (3) was  given,  it  could\t not  be
\n     validly contended\tthat a\tquestion
\n     of\t invalid   discrimination  arose
\n     between  cases   where  suits  were
\n     filed on  or before  19.5.1988  and
\n     those filed after 19.5.1988.
\n     (5) Fifthly,  even though\tthe word
\n     ‘suit’  might   include  appeal  or
\n     further appeals, Section 4(1) and 4
\n     (2) could not be made applicable to
\n     these subsequent stages.
\n     (6) Sikthly  pleas by plaintiffs or
\n     applicants\t  and\tdefences   after
\n     19.5.1988 of  real\t owners\t against
\n     benamidars\t  were\t  barred   under
\n     section 4(1) and section 4(2), only
\n     to the extent indicated above.<\/p><\/blockquote>\n
     This is  substance is what was decided in R. Rajagopala
\nReddy’s case.\n<\/p>\n
     We shall  now take\t up Nand  Kishore Mehra’s case [1995
\n(4) SCC\t 572].\t As we\tshall presently\t show, that case was
\nconcerned with\ta different  factual situation and different
\nlegal principles.   We have sent for the record in that case
\nand find  that there  the suit\twas filed on 24.1.1991 (i.e.
\nafter 19.5.1988) by the appellant pleading that he purchased
\nthe property  on 24.4.1964  in trust  for himself but in the
\nname of\t hi wife.  (the defendant).   The wife relied on the
\nAct and\t filed an  I.A. for  rejection of  the plaint  under
\nOrder 7\t Rule 11  C.P.C. The  Delhi High  Court (on Original
\nSide)  in   its\t order\t dated\t18.11.1993   dismissed\t the
\napplication under  Order 7  Rule 11  filed by  the wife\t for
\nrejection of the plaint.  On appeal by the defendant – wife,
\na Division  Bench  of  the  High  Court\t by  judgment  dated
\n21.4.1994 allowed the (wife’s) appeal and directed rejection
\nof the\tplaint as  the Division Bench felt that Section 3(1)
\nof the\tAct applied.   On  further appeal  by the  plaintiff
\nhusband, this  Court allowed  the appeal and the application
\nunder Order  7 Rule  11 filed  by  the\tdefendant  wife\t was
\ndismissed and  the suit\t was directed  to be  disposed of on
\nmerits, taking\tinto account the statutory presumption under
\nSection 3(2)  and holding  that Section\t 3(1) did  not apply
\nbecause the  case fell\tunder  the  exception  contained  in
\nSection 3(2).\n<\/p>\n
     The Court\treferred to R. Rajagopala Reddy’s case [1995
\n(2) SCC 630].  The plaint being subsequent to 17.5.1988, the
\nprinciple that\tthe act\t was not  retrospective as stated in
\nR.Rajagopala  Reddy’s\tcase  was  no  doubt  initially\t not
\nattracted to  that case.   That would mean that Section 4(1)
\napplied unless\tof course the case fell within the exception
\nstated either in Section 3(2) or in Section 4(3) of the act.
\nIn that\t case, this  Court permitted the plea of benami in a
\npost 19.5.88  suit because  the Court was concerned with the
\nexception in  Section 3(2).   The  Court  also\tincidentally
\nreferred to the other exceptions falling under Section 4(3).
\nThis Court  in that  case noticed  that the  purchase was on
\n24.4.1964 and  was in  the name\t of the\t wife.\tThat was why
\nthis Court  proceeded to  refer to  the exception in Section
\n3(2) which  concerns benami  purchases in the name of a wife
\nor unmarried  daughters.   This Court  also referred  to the
\npresumption contained  under the  same exception  in section
\n3(2) to\t the effect  that unless the contrary was proved, in
\nthe cases  of purchases\t in the\t name of  wife or  unmarried
\ndaughters, it  shall be\t presumed that the property had been
\npurchased for  the benefit  of the  wife  or  the  unmarried
\ndaughters.   In view  of the  exception in Section 3(2), the
\nprohibition under  Section 3(1)\t was held  not to apply.  It
\nwas held  that –  even though  the plaint  was\tfiled  after
\n19.5.1988 such a plea of benami was not shut out. This Court
\ndirected that the suit to be disposed of  course by applying
\nthe statutory presumption contained in Section 3(2) which is
\nto be  mandatorily drawn  but  which  is  rebuttable.\t The
\nplaintiff in  a suit filed after 19.5.1988 could still prove
\nthat the  property had\tnot bee\t purchased by  him  for\t the
\nbenefit of  his wife and he could rebut the presumption, and
\nclaim that he was the real owner.\n<\/p>\n
     Therefore, to  the six  principles hereinbefore  culled
\nout from  R.Rajagopala Reddy’s\tcase, the  following further
\nprinciples decided  in Nand  Kishore  Mehra’s  case  can  be
\nadded:\n<\/p>\n
     “(7) Seventhly, if in a suit, claim
\n     or action\ta plea\tor defence based
\n     on\t benami\t is  raised  even  after
\n     19.5.1988 and  the purchase  is  in
\n     the name  of a  wife  or  unmarried
\n     daughter, such  a plea of benami is
\n     permissible    and\t    R.Rajagopala
\n     Reddy’s case  will not  come in the
\n     way  merely  because  the\tplea  is
\n     raised after  19.5.88.  Such a plea
\n     if raised,\t will however have to be
\n     decided  taking  into  account  the
\n     statutory presumption  laid down in
\n     section 3(2).   This is because the
\n     act says that if the purchase is in
\n     the name  of the  wife or unmarried
\n     daughter,\t the\tprohibition   in
\n     section  3(1)   will   not\t  apply.
\n     Section  3(2)   is\t enacted  as  an
\n     exception to  the provisions in the
\n     act and  does not\tdepend\tfor  its
\n     interpretation on\tthe question  as
\n     to what  extent  section  4(1)  and
\n     4(2) are retrospective.
\n     (8) Eighthly,  if\tthe  case  falls
\n     within  the  exception  in\t section
\n     4(3)(a) i.e.  where the  person  in
\n     whose name\t the property is held is
\n     a coparcener  in a\t Hindu Undivided
\n     Family and the property is held for
\n     the benefit  of the  coparceners in
\n     the family,  or where  as stated in
\n     section 4(3)(b) the person in whose
\n     name the  property\t is  held  is  a
\n     trustee or other person standing in
\n     a\tfiduciary   capacity   and   the
\n     property is held for the benefit of
\n     another person  for whom  he  is  a
\n     trustee or\t towards whom  he stanos
\n     in\t such  capacity,  then\tin  both
\n     situations\t if   such  a\tplea  or
\n     defence is\t raised in  a suit filed
\n     after  19.5.88,  the  same\t can  be
\n     decided\t  by\t  the\t   Court
\n     notwithstanding  sections\t4(1)  or
\n     4(2) and  notwithstanding\twhat  is
\n     decided  in   R.Rajagopala\t Reddy’s
\n     case.”<\/p><\/blockquote>\n
     For the  above reasons,  we are unable to find how Nand
\nKishore\t Mehra’s   case\t can   be  said\t  to  have   doubted
\nR.Rajagopala Reddy’s case.  In fact far from doubting it, it
\nproceeds to  accept the said judgment and then considers the
\ncase of\t exceptions provided  in Section  3(2).\t   It  holds
\nincidentally that  there is  another exception\tcontained in
\nSection 4(3)  of the  act.   These exceptions  apply even to
\nsuits filed  after 19.5.1988 and are not affected by what is
\ndecided in R.Rajagopala Reddy’s case
\n     In order to complete discussion, we shall also refer to
\ntwo subsequent\tcases.\tThe case in Heirs of Vrajlal Ganatra
\nVs. Heirs  of Parshottam  S. Shah  1996 (4)  SCC 490 was one
\nwhere the suit was filed in 1981 claiming that the defendant
\nin whose  name the  deed dated\t16.12.1963 stood was benami.
\nThe plaintiff’s\t heirs filed appeal in Gujarat High Court in
\n1990 against the judgment of the trial Court.  No contention
\nbased on  the Act of 1988 was raised in the High Court.\t For
\nthe first  time it  was argued\tin this High Court.  For the
\nfirst time  it was  argued in  this Court  that the plea was
\nprohibited by  the Act.\t  This\tCourt, followed R.Rajagopala
\nReddy’s case  and held\tthat the  plea was  raised in a suit
\nfiled before  19.5.1988,   and it  was not  barred under the
\nact.   This Court  then proceeded  to  decide  the  case  on
\nmerits, dismissing the plaintiff’s appeal.\n<\/p>\n
     Sankana Hali & Sankana Institute Vs. Kishori Lal Goenka
\n[1996 (7)  SCC 55]  decided on 6.12.1994 is by a three judge
\nBench.\t It was decided before R.Rajagopala Reddy’s case but
\nis reported  later.   In a  way it  took the same view as in
\nR.Rajagopala Reddy’s case.  It noticed that Section 3, 3 and
\n8 of  the Act  came into  force at one i.e. 5.9.1988 and the
\nremaining provisions came into force from 19.5.1988 and that
\nthe objection  that the\t deed of  release dated 24.2.1964 by
\nthe benamidar  in favour  of the firm was invalid because of
\nthe  Act,   could  not\tbe  permitted  to  be  raised  after
\n19,5,1988.   In that  case,  the  rent\tcontrol\t proceedings
\nstarted around\t1970 and  the plea  of benami was raised and
\nwas also  proved by  the firm, the real owner, by relying on
\nthe release deed dated 24.12.64 executed by the benamidar in
\nfavour of the firm.  The objection that the deed was invalid
\nbecause of  the provisions  of\tthe  Act  was  raised  after
\n19.5.88, relying  upon Mithilesh Kumari’s case [1989 (2) SCC
\n95] which held the Act was retrospective.  That judgment has
\nsince been  reversed in\t R.Rajagopala Reddy’s  case.  It  is
\nclear that  the conclusion arrived at in Sankana Hali’s case
\ncan now\t be easily  justified by  R. Rajagopala Reddy’s case
\noverruling Mithilesh  Kumari’s case  and on the basis of the
\nprinciples laid down in the said case.\n<\/p>\n
     For the  aforesaid reasons we hold that the decision in
\nR. Rajagopala  Reddy is not in any manner snaken by anything
\nsaid in\t Nand Kishore  Mehra’s case and that both cases deal
\nwith different\taspects of  the Act as stated above and each
\nof the cases continues to govern different provisions of the
\nact.\n<\/p>\n
     Civil Appeal and Special Leave Petition are dismissed<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Smt. Rebti Devi vs Ram Dutt & Anr. Etc on 19 November, 1997 Author: M J Rao Bench: S.B. Majmudar, M. Jagannadha Rao 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-125598","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSmt. Rebti Devi vs Ram Dutt & Anr. 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