Bombay High Court
Sabdarali Deshmukh Sujatali Deshmukh ... vs Atiyasultan And Others on 19 January, 2024
2024:BHC-AUG:1186
1 SA.197-1995+1.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.197 OF 1995
WITH
CIVIL APPLICATION NO.3262 OF 1995
IN SECOND APPEAL NO.197 OF 1995
Safdar Ali Deshmukh S/o Sujat Ali Deshmukh,
Since deceased through his legal representative,
Sirajuddin s/o Safdarali Deshmukh,
Age major, Occu. Agril.,
R/o Beed, Tq. & Dist. Beed. ... Appellant.
Versus
1. Atiya Sultana W/o S.K. Nazir,
Since died through her legal representatives,
1/1 SK Abdul Nazir s/o Abdul Kadar,
Age 75 years, Occu. Nil,
R/o Nariman Nagar, Near Railway Station,
Old Jalna, Jalna, Dist. Jalna.
1/2 Md. Jameel Shaikh,
Age 46 years, Occu. Business,
R/o Nariman Nagar, Near Railway Station,
Old Jalna, Jalna, Dist. Jalna.
1/3 Muzammil Begum D/o SK Abdul Nazir,
Age 44 years, Occu. Household,
R/o Nariman Nagar, Near Railway Station,
Old Jalna, Jalna, Dist. Jalna.
1/4 Mudassir Begum D/o SK Abdul Nazir,
Age 42 years, Occu. Household,
R/o Nariman Nagar, Near Railway Station,
Old Jalna, Jalna, Dist. Jalna.
1/5 Anjum Begum D/o SK Abdul Nazir,
Age 39 years, Occu. Household,
R/o Nariman Nagar, Near Railway Station,
Old Jalna, Jalna, Dist. Jalna.
2 SA.197-1995+1.odt
1/6 Md. Khalil Shaikh S/o SK Abdul Nazir,
Age 37 years, Occu. Business,
R/o Nariman Nagar, Near Railway Station,
Old Jalna, Jalna, Dist. Jalna.
1/7 Md. Hakim Shaikh S/o SK Abdul Nazir,
Age 34 years, Occu. Business,
R/o Nariman Nagar, Near Railway Station,
Old Jalna, Jalna, Dist. Jalna.
1/8 Farheen Begum D/o SK Abdul Nazir,
Age 31 years, Occu. Household,
R/o Nariman Nagar, Near Railway Station,
Old Jalna, Jalna, Dist. Jalna.
1/9 Md. Mujeeb Shaikh S/o SK Abdul Nazir,
Age 29 years, Occu. Business,
R/o Nariman Nagar, Near Railway Station,
Old Jalna, Jalna, Dist. Jalna.
2. Asmat Beg S/o Dilawar Beg,
Age 34 years, Occu. Labourer,
3. Asad Beg S/o Dilawar Beg,
Age 33 years, Occu. Labourer,
4. Shahad Beg S/o Dilawar Beg,
Age 19 years, Occu. Nil,
5. Naseem Sultana D/o Dilawar Beg,
Age 24 years, Occu. Nil,
6. Nayeem Beg, Age 22 years,
7. Javed Beg, Age 20 years,
8. Wasim Beg, Age 16 years,
9. Salim Beg, Age 16 years,
Nos.8 & 9 minors u/g of their brother
plaintiff No.2
Above all R/o Jalna, Tq. & Dist. Jalna.
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10. Aquila Sultana W/o Salar Khan,
Age 40 years, Occu. Household,
R/o Mandwa, Taluka Mehkar,
District Buldhana. ... Respondents.
...
Advocate for Appellant : Mr. M. M. Patil-Beedkar.
Advocate for Respondent Nos.1/1 to 1/9, 2 to 10 : Mr. Kshitij
Surve - Through V. C.
...
CORAM : S. G. MEHARE, J.
RESERVED ON : 11.12.2023
PRONOUNCED ON : 19.01.2024
JUDGMENT :
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1. Heard the learned counsels for the respective parties.
2. The defendant has preferred this second appeal against
the judgment and decree of learned 3 rd Additional District
Judge, Beed, passed in Regular Civil Appeal No.286 of 1984,
dated 11.01.1995.
3. The "appellant" will be referred to as the "defendant", and
the "respondents" will be referred to as the "plaintiffs".
4. The plaintiffs had a case that the suit field of village
Pendgaon, Taluka Beed, were owned by Dilawar Beg, their
father. Dilawar Beg died five years back. The defendant had no
concern with the suit lands. The defendant was an influential
person and a big landlord. The defendant took advantage of
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the poverty of the deceased Dilawar Beg and illegally
dispossessed him seven years back. The possession of the
defendant was illegal and unauthorized. He was a trespasser.
They often requested the defendant to hand over the
possession, but he denied it. Hence, they filed a suit for
possession.
5. The defendant resisted the suit, claiming that the
deceased Dilawar was a Benamidar. The plaintiff did not plead
how Dilawar acquired the title of the suit field. The plaint is
vague and ambiguous. The defendant is the real owner and
actual possessor of the suit field. Late Dilawar Beg was the
Benamidar. He had no beneficial interest in the suit field,
which was standing in his name nominally. His legal heirs were
only the trustees and never acquired the title. Dilawar Beg was
his maternal brother. He was financially poor. The family of
Dilawar Beg had no property. He was brought from the village
Antarwali. He educated him. Dilawar Beg started looking after
the defendant's properties. He was MLA. He had no time to
look after the lands. He had confidence in the deceased
Dilawar Beg. The defendant performed his post-death
ceremonies. The suit fields were purchased in the name of
Dilawar Beg. Dilawar Beg had no financial capacity to purchase
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the suit fields for Rs.1,000/- and Rs.2,000/- each. The sale
deeds were Benami. Therefore, the suit is liable to be
dismissed.
6. The learned Court of first instance appreciated the
evidence and dismissed the suit. However, the First Appellate
Court reversed the judgment of the Court of First Instance,
holding that Section 4 of the Benami Transactions
(Prohibition) Act, 1988 (the Act of 1988) prohibits the defence
of Benamidar. It was further held that the defendant could not
claim the real ownership of the suit fields based on the sale
deed dated 17.06.1960 (Exh.54). The plaintiffs, being the legal
heirs of Dilawar Beg, were entitled to get the possession and
decreed the suit.
7. The second appeal was admitted as per the following
order :
"There involves a substantial question of law on the
point of Benami Transaction."
8. Hearing the respective learned counsels, the substantial
question of law is re-formulated as follows :
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1. Was the defendant prohibited from raising the
defence of Benamidar as provided under Section 4 of
the Benami Transactions Act, 1988?
2. Did the Benami Transactions (Prohibition) Act
1988 has a retrospective effect?
9. Learned counsel for the appellant, referring to the facts
of the case, has vehemently argued that the Act of 1988 came
into force during the pendency of the suit. Since the Act came
into force subsequent to the defence raised, Section 4 of the
Act of 1988 does not apply. The ratio laid down in Mithilesh
Kumari Vs. Prem Behari Khare ; AIR 1989 SC 1247 has been
declared not a good law. He relied on the case of R. Rajagopal
Reddy (Dead) by L.Rs. and others Vs. Padmini
Chandrasekharan (Dead) by L. Rs. ; 1995 AIR SCW 1422 . He
also relied on the case of Rebti Devi Vs. Ram Dutt and
another ; (1997) 11 Supreme Court Cases 714 and Samittri
Devi and another Vs. Sampuran Singh and another ; 2011 AIR
SCW 680. The sole question of law is whether the defendant
could raise the defence of Benami involved in the case. He
further argued that the defence was available to the defendant
because the Act of 1988 was not enacted when the defence
was raised. The First Appellate Court did not consider the facts
in detail. It was proved that the defendant paid the sale
7 SA.197-1995+1.odt
consideration. The First Court of Instance correctly appreciated
the evidence. Dilawar Beg had no means to purchase the suit
lands. During his lifetime, he never complained about
dispossession because he knew that the defendant was the
owner of the suit field and he was cultivating for him. Revenue
entries are for fiscal purposes. It does not confer the title. Once
the title goes, 7/12 entries are immaterial. He prayed to allow
the appeal.
10. Per contra, learned counsel Mr. Surve for the
respondents has vehemently argued that the First Appellate
Court has correctly applied the law laid down in the case of
Mithilesh Kumari (supra). The First Appellate Court correctly
held that the revenue record was in favour of the plaintiffs.
The relationship, as claimed by the defendant, was denied. The
presumption of the revenue record was not rebutted. The case
law relied upon by the defendant does not apply to the case at
hand. The defendant could not raise the defence of the benami
transaction in view of Section 4 of the Act of 1988. The Act of
1988 was retrospective. Hence, it was applied to the pending
cases.
11. Considering the issues involved in this case. Particularly,
upon the retrospective effect of the Act of 1988, it would be
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profitable to mention certain dates. The suit was filed on
16.01.1979. The written statement was filed on 30.08.1979.
The Act of 1988 came into force on 19.05.1988. However,
Sections 3, 5 and 8 of the said Act came into force on
05.09.1988.
12. The First Appellate Court dismissed the defence of the
defendant/present appellant, relying on the ratio laid down by
the Supreme Court in the case of Mithilesh Kumari. In the said
case, the ratio was that though Section 3 is prospective and
though Section 4(1) is also not expressly made retrospective by
the legislature by necessary implication, it appears to be
retrospective and would apply to all pending proceedings
wherein the right to property allegedly held Benami is in
dispute between the parties and that Section 4(1) will apply at
whatever stage the litigation might be pending in the hierarchy
in the proceeding. The ratio laid down in the case of Mithilesh
Kumari was the sole pronouncement of the Hon'ble Supreme
Court when the appeal was decided. The issue of the defence
of the Benami transaction went to the Supreme Court. The
landmark judgment of the 3 Judges Bench of the Supreme
Court in the case of R. Rajagopal Reddy (Dead) and others Vs.
Padmini Chandrasekharan (Dead) by L. Rs. ; 1995 AIR SCW
9 SA.197-1995+1.odt
1422 overruled the two Judges' Bench in Mithilesh Kumari. It
has been held in the said case that Section 4, or for that matter
the Act as a whole, was not a piece of declaratory or curative
legislation.It creates substantive rights in favour of Benamidars
and destroys the substantive rights in favour of the real
owners. It creates a new offence of entering into such Benami
transactions. It was, therefore, held that when a statutory
provision creates new liability and a new offence, it would
naturally have a prospective operation, and Section 4 will not
apply to pending suits which are already filed and entertained
prior to the Act coming into force. It was further observed that
Section 4(1) places a bar on a plaintiff pleading 'Benami', while
Section 4(2) places a bar on a defendant pleading 'Benami'
after coming into force of the Act. In this context, it would be
anomalous if the bar in Section 4 is not applicable. If the suit
pleading "Benami" is already filed prior to the prescribed date,
it is treated as applicable only to the suit which he had filed
thereafter.
13. As discussed above, the respondents filed a suit on
16.01.1979, and the defendant filed his written statement on
30.08.1979. The pleadings were completed before the Act of
1988 came into force. In view of the ratio laid down by the
10 SA.197-1995+1.odt
Hon'ble Supreme Court in the case of R. Rajagopal (cited
supra) and the facts of the present case, the Court is of the
view that Section 4(2) of the Act of 1988 does not prohibit the
defendant from raising the defence of benami transaction.
Hence, question No.1 is answered in negative.
14. A clear verdict has been given in the case of R.
Rajagopal (cited supra) that Sections 4(1) and 4(2), as well as
Section 3 of the Act of 1988, have no retrospective effect.
Hence, question No.2 is answered in the negative.
15. The evidence led before the Trial Court was not seriously
objected to before this Court. It was proved that Dilawar Beg
was the defendant's relative. The defendant brought him to his
village. He was looking after his properties. The defendant had
huge properties. The defendant proved that the original
plaintiffs had no financial condition to purchase the land. The
Court of First Instance appreciated the evidence and held that
it was a Benami transaction, and the defendant was the real
owner. The father of the plaintiffs was not the true owner.
Appreciating evidence, the learned Court of First Instance
recorded the correct findings. The discussion above leads this
Court to conclude that the appeal should be allowed. Hence,
the following order :
11 SA.197-1995+1.odt
ORDER
(i) The appeal is allowed.
(ii) The judgment and decree of learned 3 rd
Additional District Judge, Beed, passed in
Regular Civil Appeal No.286 of 1984, dated
11.01.1995, is quashed and set aside.
(iii) No order as to costs.
(iv) R & P should be returned to the Court of the
first instance.
(v) Civil Application No.3262 of 1995 stands
disposed of.
(S. G. MEHARE, J.)
...
vmk/-
