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 Munsif, Devakottai, are the appellants 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 plaintiffs are the sons of Abdul Majid. Abdul Majid was earlier married to one Ummu Ammal. She was

subsequently divorced. On 15.9.1947, as per the original of Ex. A - 2 and on 24.10.1942, as per the original of Ex.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 Ex.A - 1 on 19.7.1987. However, Ummu Ammal on 25.5.1977 under Ex.B - 1, sold the suit property to the defendant

and the defendant tried to interfere with 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 originals of Exs. A - 1 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 Exs. 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 plaintiff 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. Vellaichami, learned Counsel appearing for the

plaintiffs the appellants herein, would endeavour to submit that the plea having been raised and the decisions having been rendered one way or the

other by the two courts below, and this, Court being called upon to decide only the property or otherwise of the decision of the lower appellate

Court, the provisions of the Act cannot be strictly put 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 provisions reads as follows:

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 the real owner of such property.

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

conclusiveness. The expressions 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 a 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 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 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 becomes sub judice again and thereafter this Court had seisin 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 or 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 annexe 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 to 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 with

in 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 provisions, Otherwise, the very intendment behind the same will stand defeated.

In this behalf, 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 Kumari v. Prem Behari Khare (1989) 2 M.L.J.

(S.C.) 1 : (1989) 1 L.W. 430. The Supreme Court opined that the expression ''shall lie'' in Section 4(1) shall apply to present (future stages), and

future suits claim 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 (sic.) 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.