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2002 DIGILAW 49 (JHR)

Md. Ibrahim v. Mostt. Zarina Khatoon

2002-01-17

GURUSHARAN SHARMA

body2002
JUDGMENT Gurusharan Sharma, J.,-Plaintiff is appellant. He filed suit for partition of his half share in the suit property detailed in Schedule 'A' to the plaint, claiming to be residuary of the property left by his sister Bibi Zafiran, wife of Haji Abdul Gafoor, on her death. 2. Haji Abdul Gafoor was made defendant in the suit and after his death, his second wife, Mostt. Zarina Khatoon was substituted in his place. Defendant contested the suit on the ground that, in fact, suit property was purchased by the husband in the name of his wife Bibi Zafiran, who was Benamidar. She died on 2.7.1973, but the plaintiff was not entitled to any share therein, on her death. Defendant's further case was that subsequently on 2.2.1976 Haji Abdul Gafoor made a gift of the suit property to his second wife, namely, Zarina Knatoon. 3. Both the courts below on the basis of evidence adduced by the parties recorded concurrent findings of fact that the purchase by registered sale deed dated 22.11.1965 was made by Haji Abdul Gafoor in the name of his wife, Bibi Zafiran and it was a Benami purchase. The consideration amount thereof was paid by Haji Abdul Gafoor and Bibi Zafiran had no independent income. Haji Abdul Gafoor had not purchased the suit property exclusively for the benefit of his wife Bibi Zafiran, but it was purchased for the benefit of the whole family. Plaintiff being brother of Bibi Zafiran was, therefore, not entitled to any share in the suit property on the basis of his claim as residuary of the property, left by Bibi Zafiran. 4. At the time of admission of this appeal, the following substantial question of law was framed: "Whether in view of the provisions of Benami Transactions (Prohibition) Act, 1988. the plaintiff's suit could have been dismissed?". 5. At the relevant time when the aforesaid substantial question of law was framed, the decision of the apex Court in Mithilesh Kumari and another vs. Prem Behari Khare ( AIR 1989 SC 1247 ) was holding the field, whereby provisions of Benami Transactions (Prohibition) Act, 1988, (hereinafter referred to as 'the Act') was made retrospective and thereby a complete bar was put to the defendant's claim that Bibi Zafiran was a Benamidar. The courts below, therefore, could not have gone into and held Bibi Zafiran to be Benamidar of her husband Haji Abdul Gafoor. 6. The courts below, therefore, could not have gone into and held Bibi Zafiran to be Benamidar of her husband Haji Abdul Gafoor. 6. It is relevant to state that subsequently in R. Rajgopal Reddy (dead) by L.Rs. and others vs. Padmini Chandrasekharan (dead) by L. Rs. ( AIR 1996 SC 238 ) held that it was an Act to prohibit Benami transactions and the right to recover property held Benami, for matters connected therewith or identical thereto. Thus, it was enacted to enforce the then existing rights of the real owners of the property held by others Benami. Such an Act was not given any retrospective effect by the Legislature. Section 4 is not retrospective. It is obvious that when statutory provision creates a new liability and new offences, it would naturally for prospective operation and would cover only those offences which take place after section 3(1) comes into operation. Provisions of sections 4(1) and (2) cannot be treated to be impliedly retrospective so as to cover all the pending litigations in connection with enforcement of such rights of real owners who are parties to the Benami transactions entered into prior to coming into operation of the Act and specially section 4 thereof. 7. In the present case, the courts below examined the question whether transaction in question by registered sale deed dated 22.11.1965 was Benami or not in detail and on the basis of materials brought on record came to the conclusion that it was Benami. The real owner of the property was Haji Abdul Galoor and not Bibi Zafiran in whose name the atoresaid purchase was made. 8. In such circumstance, the courts below were justified in examining the defendant's claim of Benami purchase and after it was found that in fact Bibi Zafiran was Benamidar of Haji Abdul Gafoor, plaintiff's suit was rightly dismissed. 9. In the result this second Appeal is dismissed, having no merit. There shall be no order as to costs. Lower court records may be sent down.