Karnataka High Court
Venkubai vs Jyoti on 13 June, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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RFA No. 100144 of 2016
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH R
DATED THIS THE 13TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO. 100144 OF 2016 (PAR)
BETWEEN:
VENKUBAI W/O. GANAPATI SHANBHAG
AGE: 73 YEARS,
OCC: AGRICULTURIST,
R/O. KHB COLONY PRABHAT NAGAR,
HONAVAR, TAL: HONAVAR-581 334
DIST: UTTAR KANNADA
...APPELLANT
(BY SRI SHIVARAJ BALLOLI, ADVOCATE)
AND:
1. JYOTI W/O. RAVINDRA SHANBHAG
AGE: 38 YEARS,
OCC: AGRICULTURIST CUM
FIRST DIVISION ASSISTANT,
Digitally signed by AKSHARA DASOHA TALUKA PANCHAYAT,
MALLIKARJUN
RUDRAYYA KALMATH PRABHAT NAGAR HONAVAR,
Location: HIGH COURT TAL: HONAVAR - 581 334
OF KARNATAKA
DHARWAD BENCH DIST: UTTAR KANNADA
2. ADARSHA S/O.RAVINDRA SHANBHAG
AGE: 15 YEARS,
OCC: AGRICULTURIST CUM STUDENT
R/O. KHB COLONY PRABHAT NAGAR HONAVAR,
TAL: HONVARA VADAMITRA,
MINOR REP. BY HIS MOTHER
JYOTI RAVINDRA SHANBHAG
[R-2 IS DISCHARGED FROM MINOR GUARDIAN
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RFA No. 100144 of 2016
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OF R-1 AS PER ORDER DATED 30.10.2023 ON
IA NO.1/2023]
3. RANJITA D/O. RAVINDRA SHANBHAG
AGE: 12 YEARS,
OCC: AGRICULTURIST CUM STUDENT
R/O. KHB COLONY PRABHAT NAGAR HONAVAR,
TAL: HONVARA VADAMITRA,
MINOR REP. BY HIS MOTHER
JYOTI RAVINDRA SHANBHAG
[R-3 IS DISCHARGED FROM MINOR GUARDIAN
OF R-1 AS PER ORDER DATED 30.10.2023 ON
IA NO.2/2023]
... RESPONDENTS
(BY SMT.PADMAJA TADAPATRI, ADVOCATE FOR
SRI. K.L.PATIL, ADVOCATE, FOR R1 TO R3)
THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER 41 R(1)
READ WITH SECTION 96 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 03.03.2016 PASSED IN O.S.NO.15/2014 ON THE FILE
OF THE SENIOR CIVIL JUDGE, HONAVAR, PARTLY DECREEING THE
SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER:
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)
The plaintiff being aggrieved by the judgment and
decree dated 03.03.2016 passed by the Court of the
Senior Civil Judge, Honavar, in O.S.No.15/2014, by
granting 1/4th share each in Sl.No.4 of the plaint 'A'
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schedule properties the above appeal is preferred
questioning the said judgment and decree for not granting
share of 1/4th in all the properties.
2. Rank of the parties are referred to as per their
rankings before the trial court.
PLAINT:
3. The plaintiff has filed suit for partition and
separate possession by metes and bounds for claiming
1/4th share in all the suit schedule 'A' and 'B' properties. It
is stated that plaintiff is the mother, defendant No.1 is the
wife and defendant Nos.2 and 3 are the minor children of
deceased Ravindra Ganapati Shanbhag. The deceased
was given employment under the compassionate ground
upon death of his father. The deceased Ravindra
Shanbhag died on 03.11.2012 while he was working as a
First Division Assistant at Government High School
Jalavalli. It is contended that suit schedule 'A' properties
were acquired by the deceased Ravindra Shanbhag
and after his death the names of plaintiff and defendants
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were mutated, but defendant No.1 by anyhow got mutated
her name in the property records. It is stated that the
plaintiff and the defendants are in joint possession and
enjoyment of the properties. The suit schedule 'B'
properties are the monetary benefits accrued on the death
of deceased Ravindra Shanbhag. The plaintiff is entitled to
share of 1/4th in schedule 'B' properties being Class 1 legal
heirs. Therefore, filed suit for partition and separate
possession by claiming 1/4th share in the suit schedule 'A'
and 'B' properties.
WRITTEN STATEMENT:
4. After service of suit summons to the
defendants, the defendant No.1 appeared through her
counsel and filed written statement, also on behalf of her
minor children defendant Nos.2 and 3. The defendants
admitted the relationship between the parties with
deceased Ravindra Shanbhag.
5. The defendant No.1 has contended that she has
paid the entire sale consideration amount for the purchase
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of suit schedule Item No.3 of schedule 'A' properties, but
purchased in the name of her husband - Ravindra
Shanbhag, as he is her husband. Therefore, quite
naturally sale deeds were executed in the name of her
husband. Hence, contended that the properties Item
Nos.1 to 3 of schedule 'A' are self acquired properties of
defendant No.1. Further so far as 'B' schedule properties
are concerned, those are monetary benefits upon the
death of her husband Ravindra Shanbhag and therefore,
defendants are only entitled for those monetary benefits.
5.1. The defendant No.1 admitted that property at
Item No.4 in schedule 'A' properties has been purchased
by her husband Ravindra Shanbhag. Therefore, the
plaintiff is entitled to share only in the property at Item
No.4 in schedule 'A' property. Further stated that her
husband deceased Ravindra Shanbhag has borrowed loan
and has given money to his brother Arun Ganapati
Shanbhag for purchase of Site No.36, KHB Colony in
Sy.No.517, M1A1 measuring 0-1-05.33, but the said
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property has not been included in the suit and as such, the
suit is not maintainable. Hence, on all the pleadings
prayed to dismiss the suit.
5.2 Further the defendant No.1 got amended her
written statement contending that the plaintiff has
received a sum of Rs.1,04,179/- and Rs.18,098/- in total
sum of Rs.1,22,277/- in respect of two LIC policies
wherein she was nominee. Therefore, the defendants are
also entitled to 3/4th share in the said amount. Hence,
claimed set off towards the money received by the
defendant No.1 upon the death of her husband, but the
plaintiff has not mentioned the same in the suit.
6. The plaintiff has filed rejoinder to the said
amended written statement and denied that she has
received a sum of Rs.1,22,277/- and two LIC policies and
she has pleaded that there is no question of setting off the
amount.
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7. Based on the pleading the trial court has
framed the following issues:
1. Whether the plaintiff proves that she is
entitled for 1/4th share in suit properties?
2. Whether the defendants prove that
Sl.No.1 to 3 properties are properties of
the defendant no.1?
3. Whether all the partible properties are
not included in this suit?
4. Whether defendants prove that
defendant no.1 has spent the 'B'
schedule amount for repayment of the
loan borrowed by her husband, for the
repayment of loan borrowed for the
purpose of treatment and final rites of
her husband and for performing the
'Upanayana' of defendant no.2?
5. What order or decree?
REASONINGS OF THE TRIAL COURT:
8. The trial court has decreed the suit in part by
granting 1/4th share only in the property Item No.4 of
schedule 'A' properties and dismissed the suit in respect of
other properties. The trial court assigned the reason that
since defendant No.1 admitted the property Item No.4 of
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schedule 'A' properties was purchased by the deceased
Ravindra Shanbhag and as such has granted 1/4th share
only in Item No.4 of the schedule 'A' properties. The trial
court assigned the reason for dismissing the suit so far as
other properties are concerned that Ex.D-49 is certified
copy of the sale deed dated 06.01.2006 in respect of Item
Nos.1 and 2 of schedule 'A' property, which shows that
deceased Ravindra Shanbhag has purchased those
properties from Radhakrishna Honnappa Achari for total
consideration of Rs.67,000/- and this Ex.D-49 proves that
the consideration amount was paid earlier to execution of
sale deed. Ex.D-22 is the passbook of defendant No.1 in
respect of her savings account in KDCC Bank Ltd., Sirsi,
which shows that a sum of Rs.60,000/- was paid to
Radhakrishna Honnappa Achari on 05.12.2005. Ex.D-
55(a) is the original ledger book in respect of savings of
defendant No.1, which shows she has paid a sum of
Rs.60,000/- to Radhakrishna Honnappa Achari. The
defendant No.1 is a Government servant working as First
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Division Assistant, Akshara Dasoha, Taluk Panchayat,
Honnavar. Therefore, trial court came to conclusion that
defendant No.1 has paid the amount towards purchase of
the properties at Item Nos.1 to 3 of schedule 'A' properties
and dismissed the suit so far as Item Nos.1 to 3 schedule
'A' properties.
9. Further so far as schedule 'B' properties are
concerned, it is monetary benefits upon the death of
deceased Ravindra Shanbhag and trial court by placing
reliance on Rule 292(ii)(1) & (2) and also Rule 302(i) of
the Karnataka Civil Services Rules, it was opined that the
defendants alone are entitled to the death benefits, thus
rejected the claim of plaintiff for partition and share in
schedule 'B' properties also. Thus, the trial court upon
assigning the said reasons has allowed the suit partly
decreeing the suit so far as granting 1/4th share in Item
No.4 of schedule 'A' properties and disposed of the suit in
respect of remaining properties.
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GROUNDS IN MEMORANDUM OF APPEAL:
10. Being aggrieved by this, the plaintiff has preferred
this appeal so far as not granting share in Item Nos.1 to 3
of schedule 'A' properties and also in schedule 'B'
properties. The grounds raised are that the finding given
by the trial court that Item Nos.1 to 3 of schedule 'A'
properties, are the self acquired properties of defendant
No.1 is perverse, not legal as they are contrary to the
evidence on record. Further it is the ground that in
respect of the Item Nos.1 and 2 of schedule 'A' properties,
the name of deceased Ravindra Shanbhag was found in
the records. Therefore, the trial court has committed an
error in not granting the share in all the
properties. Further it is the ground that the deceased
Ravindra Shanbhag was also a Government employee and
hence, even if the amount was transferred from the
defendant No.1 account, which at the most is amounting
to arrangement between the husband and wife and that
does not itself lead to an inference that the defendant
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No.1 alone has paid the sale consideration amount and
hence, the trial court has committed an error.
11. Further the finding given by the trial court that as
per Ex.D-60 to Ex.D-65 the mother of deceased Ravindra
Shanbhag has given sum of Rs.6,25,000/-, cannot be
accepted. Further the finding of trial court that appellant
being the mother of deceased is not entitled for any share
in the service benefits is perverse, erroneous and contrary
to the evidence on record and law. On all these grounds
he prays to set aside the judgment and decree passed by
the trial court and further prays to decree the suit by
granting 1/4th share in all the suit schedule properties.
12. Heard the arguments from both sides and perused
the records. The points that arise for consideration are as
follows:
(1) Whether, under the facts and circumstances
involved in the case, the plaintiff proves that
all the suit schedule 'A' and 'B' properties are
properties of the deceased Ravindra
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Shanbhag, thus she is entitled for 1/4th share
in all the suit schedule properties?
(2) Whether, under the facts and circumstances
involved in the case, the defendants prove
that the suit Item Nos.1 to 3 of schedule 'A'
properties are self acquired properties of
defendant No.1?
(3) Whether, under the facts and circumstances
involved in the case, the defendants prove
that the defendants alone are entitled for
their shares in schedule 'B' properties?
(4) Whether, under the facts and circumstances
involved in the case, the defendants prove
that defendant No.1 has spent schedule 'B'
amount for repayment of loan borrowed by
her husband for the purpose of treatment and
final rituals of her husband and for
performing 'Upanayana' of defendant Nos.2
and 3?
(4) Whether, under the facts and circumstances
involved in the case, the defendants prove
that they are entitled for set off of the claim?
(5) Whether the judgment and decree of the trial
court requires any interference?
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SUBMISSIONS OF COUNSEL FOR
PLAINTIFF/APPELLANTS:
13. The learned counsel for the appellant/plaintiff
submitted that Item Nos.1 to 3 of schedule 'A' properties
were acquired by deceased Ravindra Shanbhag and his
name was appearing on the records. Therefore, the
plaintiff being mother of deceased Ravindra Shanbhag is
entitled for 1/4th share in all the items of schedule 'A'
properties. Further submitted with reference to the
provisions of The Prohibition of Benami Property
Transactions Act, 1988 (for short 'PBPT Act') that though
defendant No.1/wife had paid the amount to purchase the
property in the name of her husband deceased Ravindra
Shanbhag, is amounting to benami transactions, hence
she is not entitled to claim ownership over the
properties. Therefore, under the provisions of the PBPT
Act the defendant No.1 is estopped claiming her ownership
over the properties. Therefore, the plaintiff is entitled for
1/4th share in all the Item Nos.1 to 4 of suit schedule
properties.
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14. Further submitted that deceased Ravindra
Shanbhag was also a Government employee and he has
purchased property in his name and whatever the
contribution might have been by the defendant No.1 that
is only an understanding between the husband and
wife. Therefore, defendant No.1 cannot contend that she
alone is the owner of the properties. When the deceased
Ravindra Shanbhag was also a Government employee,
quite naturally being male earning member in the family
had acquired the properties in his name and as such, the
properties are belonging to deceased Ravindra
Shanbhag. Hence, plaintiff being mother as Class 1 legal
heir is entitled to equal share along with the defendants.
15. Further argued that The Benami Transactions
(Prohibition) Act, 1988, (BTP Act) (Before Amendment)
came into force from 05.05.1988 and the same was
amended in the year 2016, but in the present case the
transaction is prior to 2016 and therefore, the suit having
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been disposed of on 03.03.2016, which is prior to
commencement of Amendment Act No.43 of 2016 i.e.,
with effect from 01.11.2016 and as such the unamended
provisions of the said Act are applicable to the present
case on hand.
16. Learned counsel with reference to Sections 2, 3
and 4 of the Benami Transactions (Prohibition) Act, 1988
(before amendment 2016) submitted that upon bare
perusal of the provisions of Sections 2, 3 and 4 would
make it clear that any transactions made by the wife in
the name of her husband would indeed amount to Benami
Transactions and this being the case, under Section 4 of
the BTP Act (Before Amendment), defendant No.1 being
wife of the deceased Ravindra could not have taken such
defence in the suit filed by the plaintiff that said the
property though standing in the name of deceased
Ravindra, and consideration was paid by the defendant
No.1 and as such she could not be said the owner of the
property. In view of the bar provided under Section 4 of
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the BTP Act (Before Amendment), Act the said defence
could not have been taken by the defendant No.1 in the
said suit.
17. Further submitted that the Benami Transactions
(Prohibition) Act, 1988 was amended in the year 2016 by
the Act 43 of 2016, but the Amendment Act nowhere
mentions that the same is to be applied
retrospectively. Hence, unless the same is made
expressly retrospective the same could not have been
applied to the present case on hand. Also argued with
reference to Section 5 of the General Clauses Act, 1987
and submitted that unless specifically stated the
applicability of provisions retrospectively, the same could
not be made with retrospectively effect. Therefore, the
Amendment Act 43 of 2016 is not applicable in the present
case as the entire transactions to suit are prior to year
2016.
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18. Further submitted that though defendant No.1
relies on Section 1(3) of the PBPT Act and contends that
Amendment Act is to be made applicable as on
19.05.1988, but that is not the intention of the
Legislature, the provisions of Section 1 which is prevailing
as on the date of the unamended Act have not been
changed and hence, the wordings used in Section 1(3) is
insofar as the original amended provisions are concerned,
as per which only provisions of Sections 3, 5 and 8 of the
Act would come into force as on the date the Act was
enacted i.e., 05.05.1988. However, insofar as other
provisions are concerned, they are directed to come into
force on 19.05.1988.
19. Further submitted that Act 43 of 2016 making
amendment to the Benami Transactions Act does not have
retrospective effect. Therefore, defendant No.1 is not
entitled to take benefit of the amended
provisions. Therefore, the defendant No.1 could not have
taken such defence. When this being the provision of law
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applicable to the present case, then for all purposes and
also as per the provisions of law above discussed, it is
proved that Item Nos.1 to 4 properties of schedule 'A' are
acquired in the name of deceased Ravindra
Shanbhag. Therefore, the plaintiff being the mother of
deceased Ravindra Shanbhag is entitled to equal share as
that of defendants being Class I legal heir. As such, in this
regard submitted that trial court has committed an error
and prays to allow the appeal and grant 1/4th share to the
plaintiff on all the suit schedule properties 'A' and 'B'.
20. It is submitted that schedule 'B' property is
monetary benefits on account of death of deceased
Ravindra Shanbhag. Therefore, the plaintiff being Class I
legal heir is entitled for 1/4th share also in schedule 'B'
property, but the trial court has erroneously dismissed the
claim in this regard. Hence, submitted that approach of
the trial court is perverse and unlawful. Therefore, prays
to allow the appeal and decree the suit as prayed for.
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SUBMISSIONS OF COUNSEL FOR
DEFENDANTS/RESPONDENTS:
21. On the other hand, learned counsel for the
respondents/defendant Nos.1 to 3 submitted that 'benami
transaction' in this case what is being canvassed by the
plaintiff is coming under the exceptions at Section
2(9)(A)(b)(iii) of the PBPT Act, 1988. The Act is amended
in the year 2016, but it is clearly mentioned in the Act
itself at Section 1(3) of the Benami Transactions
(Prohibitions) Act, 1988, that the applicability of the
amendment is having retrospective effect and therefore,
the transactions in this case is fallen to under exception to
the Act.
22. Further submitted that even if it is held that the
provisions of Section 3 of the Benami Transactions
(Prohibition) Act, 1988 (before Amendment Act) is applied
to the present case, then as per sub-section (2) of Section
3 of BTP Act, the case comes under exception to 'benami
transaction' as per Section 13 of the General Clauses Act,
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1897. As per Section 13 of the General Clauses Act
wherever the words importing the muscular gender shall
be taken to include females also. Therefore, submitted
that in sub-section (2) of Section 3 the meaning of the
section is also to be understood as 'any person in the
name of her husband'. As per Section 13 of the General
Clauses Act, 1897, even if wife has purchased property in
the name of husband that does come within exception in
sub-section (2) of Section 3 of the Benami Transactions
(Prohibition) Act, 1988 (before Amendment 2016).
23. Further submitted that the plaintiff has not
included property in Sy.No.53A/2B situated at Malkoda
Village and as such, the suit is bad for non-joinder of
properties. Hence, with the above said submissions
learned counsel for the respondents/defendants prays to
dismiss the appeal.
REASONINGS:
24. Even upon considering the entire case on record
with the pleadings and evidence on record the plaintiff is
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claiming that the suit schedule Item Nos.1 to 4 of schedule
'A' properties were acquired by deceased Ravindra
Shanbhag and thus, the deceased Ravindra was the owner
of the property and hence, the plaintiff being mother of
the deceased has claimed 1/4th share in the suit schedule
properties. On the other hand, it is the case of defendants
that defendant No.1 is also a Government servant and has
purchased suit item Nos.1 to 3 but in the name of her
deceased husband. Therefore, these properties are self
acquired properties of the defendant No.1. In this
background, two aspects are to be considered:
(1) Whether, the defendant No.1 is able to
prove that she has paid consideration
properties of schedule 'A'?
(2) Whether, Benami Transactions (Prohibition)
Act, 1988 and also after amendment in the
year 2016, the provisions of the PBPT Act,
are applicable so as to say that wife would
be entitled to take defence being a
beneficiary of the benami transaction?
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25. Admittedly, the defendant No.1 is a Government
servant being First Division Attendant, Akshara Dasoha,
working in Taluk Pachayat Honnavara. Therefore,
defendant No.1 is also earning member in the family. The
defendant No.1 admitted that deceased Ravindra had
purchased property Item No.4 of schedule 'A' properties.
Thus, it is joint family property of plaintiff and defendants.
The trial court has granted partition of giving 1/4th share
to the plaintiff only in Item No.4 of schedule 'A' properties.
26. It is the burden on defendant No.1 to prove that
for purchasing Item Nos.1 and 2 properties of schedule 'A'
and the construction made on the Item No.1 property is
invested by the defendant No.1. In this regard, the
documentary evidence Ex.D-49 - certified copy of the sale
deed dated 06.01.2006 in respect of Item Nos.1 and 2 of
schedule 'A' properties, is to be considered. The recitals in
the sale deed proved the fact that deceased Ravindra
Shanbhag has purchased properties from Radhakrishna
Honnappa Achari for total sale consideration of
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Rs.67,000/-. It proves the fact that an amount of
Rs.60,000/- was paid to said Radhakrishna Honnappa
Achari on 05.12.2005 i.e., prior to sale deed dated
06.01.2006.
27. Ex.D-22 is passbook of defendant No.1 in respect
of her savings account in KDCC Bank Ltd., Sirsi,
Honnavara Branch. It is revealed from the said Ex.D-22
that an amount of Rs.67,000/- was paid to Radhakrishna
Honnappa Achari. Ex.D-55(a) original account ledger
extract of defendant No.1 shows that on 05.12.2005 she
has paid a sum of Rs.60,000/- to Radhakrishna Honnappa
Achari. DW2 is the Bank Manager and he has deposed
that Ex.D-22 is the passbook of defendant No.1 and its
original extract is Ex.P-55(a). Both the documents have
been issued from his Bank. The DW1 in her examination-
in-chief has deposed that she has paid consideration
amount to purchase the properties Item Nos.1 and 2 to
Radhakrishna Honnappa Achari through cheque, which is
corroborated by the evidence of DW2 - Bank Manager and
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Ex.D-22 and D-55(a). Therefore, these documentary
evidence and oral evidence clearly prove the fact that
defendant No.1 has paid consideration amount in respect
of purchase of Sl.Nos.1 and 2 of schedule 'A' property and
balance amount in cash.
28. Regarding Item No.3 - building on schedule 'A'
property, which is a construction made on Item No.1
property is concerned, PW1 - plaintiff has stated that
construction of house is completed. This evidence of PW1
that deceased Ravindra during his lifetime has got
prepared plan and estimation from an Engineer by name
Ganesh Hegde and further stated that a licence has been
obtained for construction of the said building, but the
plaintiff has not produced any document before the Court.
29. Further PW1 is unable to say when foundation
stone laying ceremony was done. From the evidence of
PW1 it is proved that during the lifetime of her son
Ravindra construction work was not completed and house
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opening ceremony was not done. Further she has
expressed her ignorance that at present when house
worming ceremony was celebrated. Therefore, from the
above said evidence it is proved that defendant No.1
herself alone had started construction and completed
construction. On the other hand, DW1/defendant No.1
has produced the document regarding raising loan from
bank and financial institutions. The DW1 has examined
Managers of those financial institutions as DW2 to DW5
and the oral evidence of these Bank Managers and
documents placed by defendant No.1 proved the fact that
defendant No.1 has raised loan for construction of house
on Item No.1 property. DW6 is the mother of defendant
No.1. That after the death of her husband she has been
receiving pension of Rs.6,000/- per month. From the
evidence of DW6 it is proved that her son (brother of
defendant No.1) is working at Dubai and DW6 has
advanced financial assistance of Rs.6,25,000/- to the
defendant No.1. Therefore, defendant No.1 has proved
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the fact that financial resources to purchase the property
Item No.3 over the Item No.1 property. No doubt all the
properties are standing in the name of deceased Ravindra
Shanbhag. Therefore, the next question is applicability of
the provisions of the Benami Transactions (Prohibition)
Act, 1988 (before amendment) and the Prohibition of
Benami Property Transaction Act, 1988 (after amendment)
is to be considered.
30. It is the argument canvassed by the learned
counsel for the appellant/plaintiff that since every
transaction in this case is prior to the 2016, the Benami
Transactions (Prohibition) Act, 1988 (before Amendment
2016), is applicable and whatever amendment made in the
year 2016 are only prospective in nature and could not be
applied retrospectively. As per this, he refers the
definition of 'benami transaction' as enshrined in Section
2(a) of the before Amendment Act. Further, as per Clause
(a) of sub-section (2) of Section 3, if a person purchases
the property in the name of his wife or unmarried
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daughter, then clause of exception is applicable, but in the
present case it is canvassed that the wife purchased the
property in the name of her husband. Therefore, the
above said provision is not applicable.
31. On the other hand, the learned counsel for the
respondents/defendants submitted that as per Section 13
of the General Clauses Act, 1897, the wordings importing
the masculine gender shall be taken to include females
also. Further submitted that the Amendment Act 43 of
2016 is applicable retrospectively. Therefore, the
provisions of the benami transactions as per the above
statute is not applicable in the instant case.
32. For the purpose of easy comprehension of the
provisions, which are extracted as below. Section 2(a) of
the Benami Transactions (Prohibition) Act, 1988 (before
amendment) is as follows:
"2. Definitions.--In this Act, unless the context
otherwise requires,--
(a) "Benami transaction" means any transaction
in which property is transferred to one person
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for a durationation paid or provided by
another person;
(b) xxxx
(c) xxxx"
33. Sub-section (1) of Clause (a) of sub-section (2) of
Section 3 reads as follows:
"3. Prohibition of benami transactions.-- (1) No
person shall enter into any benami transaction.
(2) Nothing in sub-section (1) shall apply to --
(a) the purchase of property by any person in
the name of his wife or unmarried
daughter and it shall be presumed, unless
the contrary is proved, that the said
property had been purchased for the
benefit of the wife or the unmarried
daughter;
(b) xxxx"
34. As per these provisions, reading the above said
both the provisions are considered 'Benami transactions',
is defined and what is not bonafide transaction is
stipulated in Section 3. As per Clause (a) of the sub-
section (2) of Section 3 of the Benami Transactions
(Prohibition) Act, 1988 (before amendment), any person in
the name of his wife or unmarried daughter means here
any person refers to 'masculine gender'. If he purchases
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property in the name of his wife, then the provisions of
Benami Transactions in the Act are not applicable.
35. Section 13 of the General Clauses Act reads as
follows:
"13. Gender and number. - In all [Central Acts] and
Regulations, unless there is anything repugnant in the
subject or context,--
(1) words importing the masculine gender
shall be taken to include femaless; and
(2) words in the singular shall include the
plural, and vice versa."
36. As per Section 13, the words importing the
masculine gender shall also be taken into consideration to
include females also. Wherein sub-clause (a) of sub-
section (2) of Section 3 'any person in the name of his
wife' means also converse application of meaning, it
means 'any person in the name of her husband'. When
this provision is interpreted to get clarification in this
regard, with the aid of Section 13 of the General Clauses
Act, property purchased by husband in the name of his
wife or property purchased by wife in the name of her
husband, is to be understood. Therefore, in this regard,
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when in the present case applying this clause (a) of sub-
section (2) of Section 3 of the Act (before amendment),
the defendant No.1 has purchased the property in the
name of her husband deceased Ravindra. Therefore, by
combined application of provisions of Clause (a) of sub-
section (2) of Section 3 of the Benami Transactions
(Prohibition) Act, 1988 (before amendment) and Section
13 of the General Clauses Act, 1897, the transaction
between the defendant No.1 and deceased Ravindra of
purchasing the property by the defendant No.1 in the
name of deceased Ravindra, cannot be said that it is a
benami transaction.
37. Also the said Benami Transactions (Prohibition)
Act, 1988, is amended by the Act 43 of 2016, with effect
from 01.11.2016 and the nomenclature of Act is changed
into "The Prohibition of Benami Transactions Act,
1988". Section 1(3) of The Prohibition of Benami
Property Transactions Act, 1988 (After amendment) and
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also The Benami Transactions (Prohibition) Act, 1988
(before amendment) reads as follows:
THE PROHIBITION OF BENAMI PROPERTY TRANSACTIONS ACT,
1988 (AFTER AMENDMENT):
"1. Short, title, extent and commencement.--(1)
xxxx
(2) xxxx
(3) The provisions of sections 3, 5 and 8 shall
come into force at once, and the remaining provisions
of this Act shall be deemed to have come into force
on the 19th day of May, 1988."
THE BENAMI TRANSACTIONS (PROHIBITION) ACT, 1988 (BEFORE
AMENDMENT):
"1. Short, title, extent and commencement.--(1)
xxxx
(2) xxxx
(3) The provisions of sections 3, 5 and 8 shall
come into force at once, and the remaining provisions
of this Act shall be deemed to have come into force
on the 19th day of May, 1988."
38. Sub-clause (iii) (b) of Clause A of sub-section
(9) of Section 2 of the Prohibition of Benami Property
Transactions Act, 1988 (after amendment) reads as
follows:
"2. Definitions.--In this Act, unless the context
otherwise requires,--
(1) xxxx
(2) xxxx
(3) xxxx
(4) xxxx
(5) xxxx
(6) xxxx
(7) xxxx
(8) xxxx
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(9) "benami transaction" means--
(A) a transaction or an arrangement--
(a) xxxx
(b) the property is held for the
immediate or future benefit, direct
of indirect, of the person who has
provided the consideration,
except when the property is held by
-
(i) xxxxx
(ii) xxxx
(iii) any person being an individual
in the name of his spouse or in
the name of any child of such
individual and the
consideration for such property
has been provided or paid out
of the known sources of the
individual;
(iv) xxxx"
39. As per this, any person being an individual in the
name of his spouse purchase the property (as applicable in
the present case), is not a 'benami transactions'. There
are certain exceptions of considering a benami
transactions and the above provision is one of the
exception to the benami transaction. Here the Clause (iii)
is made in clarification making a gender neutral in The
Benami Transactions (Prohibition) Act, 1988 (before
amendment). In Clause (a) of sub-Section (2) of Section
3 the wordings are that "by any person in the name of his
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wife" and in said sub-clause (iii) (b) of Clause A of sub-
section (9) of Section 2 of the PBPT Act, the exception is
made gender neutral by incorporating the word "spouse".
Therefore, after amendment the definition clause is made
more clarificatory and as such it is applicable
retrospectively. There is no substantial change and
wherever definition is made clarificatory after the
amendment that is presumed to be with retrospective
effect.
40. In this regard, I place reliance on the judgment of
Hon'ble Supreme Court in the case of SREE
SANKARACHARYA UNIVERSITY OF SANKSRIT AND
OTHERS v. DR.MANU AND ANOTHER1 wherein their
Lordships at paragraphs 46, 47, 48, 49, 50, 51 and finally
at paragraph 52 have summarized the principles regarding
applicability of any amended provision with retrospective
effect.
"46. In order to effectively deal with the aspect
as to retrospective operation of the Government
(2023) SCC Online SC 640
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Order dated 29th March, 2001 it may be useful to refer
to the following extract from the treatise, Principles of
Statutory Interpretation, 11th Edition (2008) by
Justice G.P. Singh on the sweep of a
clarificatory/declaratory/explanatory provision:
"The presumption against retrospective
operation is not applicable to declaratory statutes.
As stated in Craies and approved by the Supreme
Court: For modern purposes a declaratory Act may
be defined as an Act to remove doubts existing as
to the common law, or the meaning or effect of
any Statute. Such acts are usually held to be
retrospective.
[...] An explanatory Act is generally passed to
supply an obvious omission or to clear up doubts
as to the meaning of the previous Act. It is well
settled that if a statute is curative or merely
declaratory of the previous law, retrospective
operation is generally intended. The language 'shall
be deemed always to have meant' or 'shall be
deemed never to have included' is declaratory and
is in plain terms retrospective. In the absence of
clear words indicating that the amending Act is
declaratory, it would not be so construed when the
amended provision was clear and unambiguous. An
amending Act may be purely clarificatory to clear a
meaning of a provision of the principal Act which
was already implicit. A clarificatory amendment of
this nature will have retrospective effect and,
therefore, if the principal Act was existing law
when the constitution came into force, the
amending Act also will be part of the existing law."
[Emphasis by us]
47. This Court in Commissioner of Income Tax, Bombay
vs. Podar Cement Pvt. Ltd., (1997) 226 ITR 625 (SC) noted
that circumstances under which an amendment or
modification was introduced and the consequences thereof
would have to be borne in mind while deciding the issue as
to whether the amendment was clarificatory or substantive
in its nature and whether it would have retrospective effect
or not.
48. In Allied Motors Pvt. Ltd. vs. Commissioner of
Income Tax, Delhi, (1997) 224 ITR 677 (SC), this Court
found that certain unintended consequences flowed from a
provision enacted by the Parliament. There was an obvious
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omission. In order to cure the defect, a proviso was sought
to be introduced through an amendment. The Court held
that literal construction was liable to be avoided if it
defeated the manifest object and purpose of the Act. This
Court held that if the amendment was not read into the
relevant provision retrospectively, it would be impossible to
reasonably interpret the said provision. That since there
was an obvious omission in the provision, an amendment
was necessitated which would clarify/declare the law
retrospectively.
49. The proposition of law that a clarificatory provision
may be made applicable retrospectively is so well
established that we do not wish to burden this judgment by
referring to rulings in the same vein. However, it is
necessary to dilate on the role of a clarification/explanation
to a statute and how the same may be identified and
distinguished from a substantive amendment.
50. An explanation/clarification may not expand or
alter the scope of the original provision, vide Bihta
Cooperative Development Cane Marketing Union Ltd.
vs. Bank of Bihar, A.I.R. 1967 SC 389. Merely
describing a provision as an "Explanation" or a
"clarification" is not decisive of its true meaning and
import. On this aspect, this Court in Virtual Soft
Systems Ltd. vs. Commissioner of Income Tax, Delhi,
(2007) 289 ITR 83 (SC) observed as under:
"Even if the statute does contain a statement to
the effect that the amendment is declaratory or
clarificatory, that is not the end of the matter.
The Court will not regard itself as being bound
by the said statement in the statute itself, but
will proceed to analyse the nature of the
amendment and then conclude whether it is in
reality a clarificatory or declaratory provision or
whether it is an amendment which is intended
to change the law and which applies to future
periods."
51. This position of the law has also been
subscribed to in Union of India vs. Martin Lottery Agencies
Ltd., (2009) 12 SCC 209 wherein it was stated that when a
new concept of tax is introduced so as to widen the net, the
same cannot be said to be only clarificatory or declaratory
and therefore be made applicable retrospectively, even
though such a tax was introduced by way of an explanation
to an existing provision. It was further held that even
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though an explanation begins with the expression "for
removal of doubts," so long as there was no vagueness or
ambiguity in the law prior to introduction of the
explanation, the explanation could not be applied
retrospectively by stating that it was only clarificatory.
52. From the aforesaid authorities, the following
principles could be culled out:
i) If a statute is curative or merely clarificatory of
the previous law, retrospective operation thereof
may be permitted.
ii) In order for a subsequent order/provision/
amendment to be considered as clarificatory of
the previous law, the pre-amended law ought to
have been vague or ambiguous. It is only when
it would be impossible to reasonably interpret a
provision unless an amendment is read into it,
that the amendment is considered to be a
clarification or a declaration of the previous law
and therefore applied retrospectively.
iii) An explanation/clarification may not expand or
alter the scope of the original provision.
iv) Merely because a provision is described as a
clarification/explanation, the Court is not bound
by the said statement in the statute itself, but
must proceed to analyse the nature of the
amendment and then conclude whether it is in
reality a clarificatory or declaratory provision or
whether it is a substantive amendment which is
intended to change the law and which would
apply prospectively."
41. Therefore, the amendment made to definition is
not amending punitive provisions or substantive in nature,
but the amendment made to the definitions in the Act is
only a clarificatory in nature. Thus, the amended
provisions are applicable with retrospective effect.
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42. Where the transaction of purchasing the property
by the husband in the name of wife or purchasing the
property by wife in the name of her husband, is an
exception to benami transactions in the Act above stated.
Here, when a wife purchases property in the name of her
husband or husband purchases the property in the name
of wife, there is no necessity for hiding out his identity. If
the transaction is to be called as a 'benami transaction',
the motive and intention must be clear for getting benefit
out of purchase in benami name that transaction is called
'benami transaction'. Sub-section (12) of Section 2 of The
Prohibition of Benami Property Transactions Act, 1988,
reads as follows;
"12. "beneficial owner" means a person, whether his
identity is known or not, for whose benefit the benami
property is held by a benamidar;"
43. Where a husband purchases the property in the
name of his wife or a wife purchases the property in the
name of her husband, could not be categorized as 'benami
transactions' as the husband or wife cannot be termed as
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a beneficial owner as per sub-section (12) of Section 2 of
PBPT Act (after amendment).
44. As above stated, the amendment made to the
Section 2 definitions is making enactment more
clarificatory and the curative one to the Act (Before
Amendment). Therefore, the provisions enshrined in the
definitions are applicable retrospectively. When the
principle of law laid down above discussed, as discussed
above, the amendment made to Section 2 of the Act is
curative, giving clarity, removing ambiguities and making
more precise the intent of legislation, then the amendment
made by the Act 43 of 2016 is with retrospective effect.
45. For the reasons discussed above, it is proved that
the defendant No.1 purchased the property in the name of
her husband deceased Ravindra and therefore, benami
transactions are not applicable in this case as it is proved
that property acquired by the defendant No.1 is self
acquired property. Hence, the plaintiff is not entitled to
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share in other properties except Item No.4 of schedule 'A'
properties. Thus, in this regard, the trial court is correct in
partly decreeing the suit so far as Item No.4 of schedule
'A' property is concerned.
46. The items in schedule 'B' properties are monetary
benefits on account of death of deceased Ravindra
Shanbhag though the plaintiff being mother and is also
entitled to share in the said monetory benefits, but the
evidence on record prove the fact that defendant No.1 had
not utilized the amount herself or with her children but has
used the said amount for the payment of loan raised by
deceased Ravindra during his lifetime and for education
and Upyanayana for the growth of children. Therefore,
the trial court is correct in not granting decree in schedule
'B' property also. Therefore, I answer point No.1 partly in
the affirmative, points No.2 to 4 in the affirmative and
points No.4 and 5 in the negative.
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47. Upon reappreciating the evidence on record and
reasons assigned in the judgment and decree, there is no
perversity or illegality in the findings and reasonings given
by the trial court, as such the appeal is found to be devoid
of merits. Hence, the appeal is liable to be dismissed.
48. Hence, I proceed to pass the following:
ORDER
(1) Appeal is dismissed.
(2) Judgment and decree dated 03.03.2016
passed by the Court of the Senior Civil
Judge, Honnavar, in O.S.No.15/2014, is
affirmed.
(3) Registry to draw the decree accordingly.
(4) No order as to costs.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
DR
