Habib Rahman and Others vs Ramu Pandaram

Nainar Sundaram, J.—The plaintiffs in O. S. No. 77 of 1978, on the file of the District Munsiff, Devakottai, are the appellates in this second

appeal. The respondent herein is the defendant in the suit. the plaintiffs laid the suit for declaration of title and recovery of possession. The case put

forth by the plaintiffs ran as follows :

The plaintiff''s are the sons of one Abdul Majid. Abdul Majid was earlier married, to one Ummu Ammal. she was subsequently divorced. On

September 15, 1942, as per the original of exhibit A-2 and on October 24, 1942, as per the original of exhibit A-3, Abdul Majid purchased the

suit property benami in the name of Ummu Ammal, and Abdul Majid is the real purchaser of the suit property. After divorcing Ummu Ammal,

Abdul Majid married Ameena Ammal, the mother of the plaintiffs. Possession continued with Abdul Majid and he sold the suit property to his

sons, the plaintiffs under exhibit A-1 on July 19, 1987. However, Ummu Ammal, on May 24, 1977, under exhibit B-1, sold the possession of the

waramdar under the plaintiffs of the suit property. In the proceedings before the Sub-Collector, Devakottai, the defendant was held to be in

possession.

The defence of the defendant was squarely placed on the apparent title of Ummu Ammal under the original of exhibit A-2 and A-3 and there

was a denial of the case of the plaintiffs that the real owner was Abdul Majid and not Ummu Ammal. The first court accepted the case of the

plaintiffs and decreed the suit of the plaintiffs for declaration of title and for recovery of possession. The defendant appealed and the appeal A. S.

No. 44 of 1979 on the file of the Subordinate Judge, Devakottai, was allowed and the lower appellate court has reversed the findings of the first

court on the relevant aspects. This second appeal is directed against the judgment and decree of the lower appellate court.

At the time of the admission of the second appeal, this court formulated the following substantial question of law for consideration :

Whether the lower appellate court is justified in holding, on the evidence, that exhibits A-2 and A-3 are not benami for the benefit of P. W. 1 in

the light of settled principles laid down by our High Court and the Supreme Court, more particularly when the appellants were in possession of the

property till 1977, when the sale took place ?

Mr. K. Sukumaran, learned counsel for the defendant respondent herein, would take a preliminary objection that the plaintiffs could not advance

the plea of benami in this second appeal assuming that they have got any merits on such plea in view of the provisions of the Benami Transactions

(Prohibition) Act, 45 of 1988, hereinafter referred to as ""the Act."" However, Mr. M. Vellaichamy, learned counsel appearing for the plaintiffs the

appellants herein, would endeavor to submit that the plea having been raised and decisions having been rendered one way or the other by the two

courts below, and this court being called upon to decide only the propriety or otherwise of the decision of the lower appellate court, the provisions

of the Act cannot be strictly but against the advancement of the plea of benami by the plaintiffs.

Section 4(1) of the Act alone can be taken to be relevant for the purpose of this case, since we are dealing with the plea of the plaintiffs in their

suit that the purchase in the name of Ummu Ammal was only benami for Abdul Majid and they are trying to enforce their right only on that basis.

The said provision reads as follows DARJEELING DOOARS PLANTATIONS LTD. Vs. COMMISSIONER OF Income Tax., .

4(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or

against any other person shall lie by or on behalf of a person claiming to be real owner of such property.

It is true the matter has come up to the stage of second appeal before this court. But the it is continues and has not been given a finality and

conclusiveness. The expression used are ""No suit, claim or action shall lie"".

That the term ""suit"" would take in its connotation, a continuation of it in appeal or in second appeal is a well-accepted proposition. In AIR 1941

5 (Federal Court) , it has been countenanced that :

the hearing of appeal under the procedural law of India is in the nature of a rehearing and, therefore, in moulding the relief to be granted in a case

on appeal, the appellate court is entitled to take into account even facts and events which have come into existence after the passing of the decree

appealed against. Consequently, the appellate court is competent to take into account legislative changes since the decision under appeal was given

and its powers are not confined only to see whether the lower court''s decision was correct according to the law as it stood at the time when its

decision was given. Once the decree of the High Court has been appealed against, the matter became sub judice again and thereafter this court

had season of the whole case, though for certain purposes, e.g., execution, the decree was regarded as final and the courts below retained

jurisdiction in that regard.

The other expressions ""claim on action"" are general in nature and of wide import and are not to be given time bound or stage bound or forum

bound meaning. Coming to the expression ""shall lie"", it is not possible to annex to it a stringent meaning so as to say it will apply only to

proceedings of the nature of a suit, claim or action to enforce any right spoken of in section 4(1) to be initiated after the provisions of the Act came

into force, and not to proceedings initiated anterior to it, but which have not been put an end to once and for all in the eye of law. It will take in also

a case where the suit, claim or action already laid is being prosecuted stage after stage until finally disposed of, as permitted by law and wherein no

finality or conclusiveness has been reached. Until and unless a finality or conclusiveness therein is reached in the eye of law, the case will come

within the expression ""shall lie"". I find that two of the ordinary dictionary meanings given to the expression ""lie"" are : ""to press"" and ""to have a

position"". The expression, in the context in which it appears and giving due significance to the objects and reasons behind the statute in which it is

found, must be given the meaning that the plea shall not be advanced, prosecuted, pressed forth or placed in any suit, claim or action whatever be

the stage of the suit, claim or action. This is the only way to construe the above provision. Otherwise, the very intendment behind the attention has

been drawn to a pronouncement of a single judge of the High Court of Kerala in VELAYUDHAN RAMAKRISHNAN AND OTHERS Vs.

RAJEEV AND OTHERS., and the question has also gone before the Supreme Court in Mithilesh Kumar and Another Vs. Prem Behari Khare, .

The Supreme Court opined that the expression ""shall lie"" in section 4(1) shall apply to present (future stages), and future suits, claims or actions

only. The Supreme Court also held, after referring to various pronouncements, that an appeal is a rehearing of the suit. Such being the position

under and implications of the provisions of the Act, I do not think that the plaintiffs could be permitted to advance the plea based on benami in the

present second appeal. This is a legal hurdle which they cannot get over. In this view, this-second appeal deserves dismissal and, accordingly, the

same is dismissed. There will be no order as to costs.