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2002 DIGILAW 1183 (JHR)

Md. Zakaria v. Md. Aslam

2002-11-25

GURUSHARAN SHARMA

body2002
JUDGMENT Gurusharan Sharma, J. 1. Defendants are appellants. Plaintiffs tiled suit for declaration that deed of gift dated 16.3.1962 (Exhibit D) executed by Mostt Mahtabo in favour of Mostt. Aziman, the sole defendant was void and inoperative and she did not acquire any right, title and interest in the properties mentioned therein. 2. Plaintiffs grand father Gulam Hussain Khalifa @ Meghun Khalifa left behind two widows, namely, Amiran and Mehtabb. Shakoor was his son from his first wife Amiran and Ibrahim, the plaintiffs father and Aziman, the defendant were respectively his son and daughter from his wife Mahtabo. 3. According to the plaintiffs, after death of Gulam Hussain Khalifa there was partition between Shakoor and Ibrahim, wherein property involved in the present suit was allotted to Ibrahim. After death of Shakoor, plaintiffs also succeeded to the estate left by him. 4. Plaintiffs further case was that their grand father had acquired the properties in suit in the name of his wife Mahtabo. Defendant claimed to have obtained a deed of gift dated 16.3.1962 (Exhibit D) from Mostt. Mahtabo and applied for mutation in the year 1966, which was allowed by the Commissioner, South Chotanagpur Division on 31.5.1968 (Exhibit G). Hence the suit. 5. During pendency of the suit, Mostt. Aziman, the sole defendant died and her heirs were substituted. According to them, Mostt. Mahtabo was not a Benamidar, rather absolute owner of the suit property. It was true that Gulam Hussain Khalifa had filed a suit in the year 1945 against Mostt. Mahtabo for declaration that the property in question belonged to him and she was simply a benamidar, but the plaint of the said suit was returned for want of pecuniary jurisdiction of Munsifs Court where it was filed but thereafter Gulam Hussain Khalifa did not file any suit. Mostt. Mahtabo had full authority to make a gift of the property in suit to her daughter Mostt. Aziman. 6. Defendants further case was that in the said Title Suit No. 17 of 1945 filed by Gulam Hussain Khalifa, plaintiffs father Ibrahim after death of Mostt. Mahtabo was substituted as defendant. In his written statement (Exhibit L) Ibrahim adopted the written statement filed by her mother and specifically stated that the said written statement be treated as part of his written statement. Consequently, Ibrahim had accepted Mostt. Mahtabo was substituted as defendant. In his written statement (Exhibit L) Ibrahim adopted the written statement filed by her mother and specifically stated that the said written statement be treated as part of his written statement. Consequently, Ibrahim had accepted Mostt. Mahtabo as real owner of the property in question and refuted plaintiffs claim in the said suit that she was merely a benamidar. Plaintiffs being sons of Ibrahim were, therefore, estopped to take a contrary stand in the present suit. Further the plaintiffs suit for setting aside the deed of gift dated 16.3.1962 was also barred by time. 7. It is true that plaintiffs were not parties to the said deed of gift, but they admitted to have got knowledge about it in the year 1966 itself, when Mostt. Aziman applied for mutation of her name in the revenue records of the State. According to the contesting defendants for the purpose of counting limitation for filing the present suit, Article 59 of the Limitation Act, 1963 was applicable and as such the suit having been filed after more than 3 years from the date of knowledge, in the year 1970, was clearly barred by time. 8. The trial Court decreed the suit holding that Mostt. Mahtabo was neither owner of the suit property nor was in exclusive possession thereof. It was benami acquisition by Gulam Hussain Khalifa in the name of his wife. She was, therefore, not entitled to execute the deed of gift (Exhibit D) in favour of her daughter. The donee was also not put in possession over the gifted property and as such Exhibit D was invalid in the eye of Mohammedan Law and was not binding on the plaintiffs. 9. According to the trial Court the suit was governed by Article 113 and not by Article 59 of the Limitation Act. Hence, the suit was filed within time from 31.5.1968, on which date the Commissioner allowed the mutation of defendants name in the revenue records, which gave cause of action to the plaintiffs to file the present suit. 10. Defendants preferred appeal against trial Courts judgment and decree, which was also dismissed by impugned judgment and decree dated 15.12.1987. 11. On 23.8.1989 instant second appeal was admitted on following substantial question of law. "When admittedly the property stood in the name of Mostt. 10. Defendants preferred appeal against trial Courts judgment and decree, which was also dismissed by impugned judgment and decree dated 15.12.1987. 11. On 23.8.1989 instant second appeal was admitted on following substantial question of law. "When admittedly the property stood in the name of Mostt. Mahtabo, whether the plaintiffs suit for declaring the deed of gift made by her to be void on the ground that she was merely a benamidar is maintainable in view of the provision of Benami Transaction (Prohibition) Act, 1988". Appellants were also given liberty to formulate other or further substantial question of law, if any, at the time of hearing of the Appeal. 12. In R. Rajagopal Reddy (Dead) by LRs and Ors. v. Padmini Chandrashekharan (Dead) by LRs., (1995) 2 SCC 7630, Apex Court held that Benami Transaction (Prohibition) Act, 1988 was enacted to efface the then existing right to the real owners of the properties held by others benami. Such an Act was not given any retrospective effect by the legislature. Section 4(1) of the Act was not retrospective in operation and was not applicable to pending suits already filed and entertained prior to coming into force of Section 4, which provided that only from the date of its coming into operation, no suit, claim or action preferred by the real owner, to enforce any right in respect of any property held benami, would lie in any Court. Section 4(2) was also not retrospective, in operation and it became operative only from 19.5.1988. 13. The present suit was, therefore, maintainable and the substantial question of law framed in this Appeal is thus answered accordingly on the ratio of Rajgopals case (supra). 14. After answering the substantial question of law quoted in paragraph 11 above, in my view the following substantial questions of law also arise in this Appeal : 1. Whether the admission of plaintiffs father in Exhibit L would operate as estoppel against plaintiffs contrary claim in the present suit that Mostt. Mahtabo was a benamidar? 2. Whether the suit was barred under Article 59 of the Limitation Act, 1963 ? 15. It is not in dispute that plaintiffs father Ibrahim had accepted Mostt. Whether the admission of plaintiffs father in Exhibit L would operate as estoppel against plaintiffs contrary claim in the present suit that Mostt. Mahtabo was a benamidar? 2. Whether the suit was barred under Article 59 of the Limitation Act, 1963 ? 15. It is not in dispute that plaintiffs father Ibrahim had accepted Mostt. Mahtabo to be real owner of the property in question in Title Suit No. 17 of 1945 and the plaintiffs in the present suit have not given any explanation to depart therefrom and to call her benamidar in the present suit. Although the said suit was not decided on merit, but in my view unless the plaintiffs in the present suit furnished cogent explanation for departing from the aforesaid admission, their contention to the contrary that Mostt. Mahtabo was a benamidar was not fit to be adjudicated and decided in the present suit. I find that there is absolutely no such explanation on record on behalf of the plaintiffs. 16. Plaintiffs claimed to have acquired knowledge of the deed of gift, Ext. D only in the year 1966, when step for mutation was taken by the donee, but the suit was filed in the year 1970. Hence, under Article 59 of the Limitation Act, 1963 the suit was barred by time. 17. In view of the fact that the plaintiffs were estopped to call Mostt. Mahtabo as benamidar, the present suit was not maintainable for the reliefs sought for therein against the defendants and it was also barred by time. I, therefore, set aside the impugned judgments and decrees passed by both the Courts below and dismiss the suit. 18. In the result, this appeal is allowed, but without costs.