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2004 DIGILAW 354 (PAT)

Bibi Halima v. Sitaram Mahton

2004-03-26

PRABHAT KUMAR SINHA

body2004
Judgment Prabhat Kumar Sinha, J. 1. Heard learned counsel for the appellants and learned counsel for the respondents. 2. In this second appeal following substantial questions of law have been formulated by this court on 9.3.1990 for consideration, viz: (1) Whether section 4 of the Benami Transactions Act, 1988 applies in the suits in the light of the Supreme Court decision in A.I.R. 1989 S.C. 1247? (2) Whether sub-section 3(a) of section 4 of Benami Transaction Act applies only to Hindu Mitakshra Family and not to Hindu governed by Daya Bhag School & Muslims and Christians in which there is no concept of joint family? 3. Brief facts of the case: Title Suit no. 1 of 1978 was filed by one Shamshad Ali, who incidently died in course of trial and was substituted by his heirs, namely, Bibi Halima, and others, for declaration of title and possession over the suit lands bearing plot no. 1115, new plot no. 1418, area 93 decimals of village Kajraili, P.S. Nathnagar, District-Bhagalpur, fully described in Schedule A of the plaint, as also for declaration of the sale deed with respect to the suit land executed by defendants no. 2 to 4 in favour of defendant no. 5 to be void, without consideration and not minding on the plaintiff. The case of the original plaintiff was that the land in suit originally belonged to Bibi Zarjina who sold 93 decimals of land to the plaintiff in the year 1952, in the benami name of Bibi Quraisha, who was the daughter of plaintiffs sister. The name of plaintiff was mutated in the Zamindari Serishta and also in the Serishta of State of Bihar who were granting rent receipts, the plaintiff coming in possession thereon. Bibi Quraisha died and her heirs the defendants, soid the suit land to one Sitaram Mahton on 27.10.1977 by two sale deeds which were sought to be declared illegal and void. In the written statement the defendants claimed that Bibi Quraisha was not the benamidar of the plaintiff but she was real purchaser of the suit land after paying consideration money and came in possession thereof, subsequently inherited by her heirs. 4. The learned trial court framed as many as seven issues including the issue as to whether the plaintiff was entitled to decree, as prayed for. On discussing the materials on record the learned trial court decreed contest. 4. The learned trial court framed as many as seven issues including the issue as to whether the plaintiff was entitled to decree, as prayed for. On discussing the materials on record the learned trial court decreed contest. That matter came up for hearing before learned third Additional District Judge, Bhagalpur in Title Appeal no. 78 of 1982. The learned first appellate court did not go into the merits of the claims of the respective parties but considered the issue as to whether Title Suit no. 11 of 1978 was maintainable in view of section 4 of the Benami Transactions (Prohibition) Act, 1988 ("The Act", in short). It appears that the learned first appellate court has based the judgment and decree on the decision on this sole point. It appears from the judgment that the arguments on behalf of the appellants/respondents was accepted that the provision under section 4 of the Act was retrospective in effect, hence that provision of the Act would apply and, in that regard, the learned first appellate court relied upon a decision of Kerala High Court, A.I.R. 1989 Kerala, page 12 (Velayudhar Rama Krishnan and Ors. V/s. Rajeev & Ors.). The learned first appellate court also noticed that before that Act came into existence, an ordinance was promulgated and section 2 of the Ordinance was the same as section 4 of the Act. Following part of the judgment of the Kerala High Court was quoted by the learned lower court "The object of the Ordinance was to do away with what was felt to be an obnoxious system which had deleterious consequences on larger public interest. The provisions of the ordinance do not even remotely suggest a preservation of the earlier rights or a protection of past transactions. The court should lean more in favour of an interpretational process which would promote a laudable object; and eschew one which would sap its efficacy and leave it as a dead wood as it were. Therefore, the provision of the Ordinance act against, and affect past transactions as well." 5. Learned first appellate court also noticed the arguments made on behalf of the respondents in the first appeal, who, with the help of several other decisions argued that the Act was not retrospective in its effect but was prospective as there was nothing in the Act to show that the Parliament intended it to have retrospective effect. Learned first appellate court also noticed the arguments made on behalf of the respondents in the first appeal, who, with the help of several other decisions argued that the Act was not retrospective in its effect but was prospective as there was nothing in the Act to show that the Parliament intended it to have retrospective effect. Obviously, the learned first appellate court did not find that any of those judgments as noticed in paragraph 14 of the judgment, was applicable and held that the judgment of the Kerala High Court, aforesaid, was to the point and applied to the facts and circumstances of the suit under consideration. 6. From the judgment of the learned first appellate court I also find that it was argued on behalf of the learned counsel for the respondents/appellants that plea of adverse possession was also taken but the learned first appellate court appears to have accepted the argument that in case of a benami transaction the real owner could not be allowed to take the plea of adverse possession. 7. Holding so the learned first appellate court allowed the appeal and set aside the judgment and decree of the lower court. 8. In view of the findings, the aforesaid substantial questions of law were framed on which this appeal has been heard. 9. Sri Sukumar Sinha, learned counsel for the appellants argued that this matter now has been set at rest by a Full Court decision of the Apex Court in the case of R. Raja Gopal Reddi V/s. V.P. Chandrashekharan; A.I.R. 1996 S.C. 238, in which the question as to whether section 4(1)(2) of the Act had retrospective effect arose and in that regard their Lordships had also taken into account the judgment of the appellate court in the case of Mithilesh Kumari V/s. Prem Bihari Khare; A.I.R. 1989 S.C. 1247. The case of Mithilesh Kumari (supra) was decided by two Judges Bench of the Apex Court in which a view was taken that the effect of the aforesaid provision was retrospective. The case of Mithilesh Kumari (supra) was decided by two Judges Bench of the Apex Court in which a view was taken that the effect of the aforesaid provision was retrospective. In the Full Bench decision in the case of R. Rajagopal Reddy (supra) their Lordships took a contrary view and held that section 4(1) of the Act could not be applied to suit, claim or action to enforce any right to property held benami against person in whose name such property was held or any other person, if such a proceeding was initiated by or on behalf of a person claiming to be the real owner thereof, prior to the coming in force of section 4(1) of the Act. 10. While holding that the aforesaid provision of the Act was not retrospective but prospective in effect, their Lordships also held that even in a case in which the suit was instituted prior to 19.5.1988 (the date of promulgation of the Ordinance) but the proceeding continued in the court or in higher courts the aforesaid law will not apply. Summing up their Lordships observed: "As a result of the aforesaid discussion it must be held, with respect, that the Division Bench erred in taking the view that Section 4(1) of the Act could be pressed in service in connection with suits filed prior to coming into operation of that Section. Similarly the view that under Section 4(2) in all suits filed by persons in whose names properties are held no defence can be allowed at any future stage of the proceedings that the properties are held benami, cannot be sustained. As discussed earlier Section 4(2) will have a limited operation even in cases of pending suits after Section 4(2) came into force if such defence are not already allowed earlier. It must, therefore, be held, with respect, that the decision of this court in Mithilesh Kumaris case ( AIR 1989 SC 1247 ) does not lay down correct law so far as the applicability of Section 4(1) and Section 4(2) to the extent hereinabove indicated, to pending proceedings when these sections came into force, is concerned, Accordingly, the question for consideration is answered in the negative." 11. The concerned Title Suit no. 1 of 1978 obviously was filed even before the promulgation of the concerned ordinance, and before the Act came into force in September, 1988. The concerned Title Suit no. 1 of 1978 obviously was filed even before the promulgation of the concerned ordinance, and before the Act came into force in September, 1988. Even the date of judgment and decree of the trial court was 11.10.1982, much before the Act came into existence. 12. Learned counsel for the respondents, Mr. S.K. Mazumdar agrees that in view of the decision in the case of R. Rajagopal Reddy (supra) the judgment of the Appellate court cannot be sustained, but submitted that the first appellate court had not decided all the issues involved in the appeal including the claim of the respondents that Bibi Quaraisha was not a benamidar. 13. It is obvious, therefore, that section 4 of the Act will not apply to the suit that was instituted prior to the promulgation of the Ordinance or coming into force of the Act. The substantial questions of law, as framed are, thus, answered. 14. Before parting with the judgment this court must point out that tendency of deciding a suit or appeal, in which parties have made rival claims on facts, on some legal point concerning maintainability should be avoided. When a suit or appeal comes for consideration it should be decided on all the issues involved including the issue of maintainability as per the evidences on record and the law applicable. That will held in avoiding prolongation of the litigation as, in view of the judgment of the first appellate court, this court is left with no option but to remand the Title Appeal back to the first appellate court after setting aside the judgment and decree. 15. In the result, this second appeal is allowed and the judgment and decree of the first appellate court are hereby set aside. The Title Appeal no. 78 of 1982 is remanded back to the first appellate court to decide all the issues involved, after giving opportunity to both the parties to be heard.