Smt. Prem Vati Bhandari vs Ved Parkash (Decd. by legal representatives)

Ashok Bhan, J.—This is a defendants'' appeal. The facts giving rise to the present appeal, shortly stated, are as under :

One Shiv Nand, father of Ved Parkash, plaintiff-respondent purchased house No. 264-R, Model Town, Jalandhar City, in the name of his wife Smt. Kamla Devi. It was alleged that the said house was purchased by his father from the Government with his own money and that Kamla Devi, his wife, had no funds of her own to buy the house and was only a bena-midar for the plaintiff. A number of circumstances were stated to exist which showed the transaction to be benami in nature.

Kamla Devi sold the house on June 11, 1973, to Smt. Prem Wati Bhandari, defendant No. 2 (hereinafter referred to as the appellant) for Rs. 30,000. It was pleaded by the appellant that the plaintiff, Ved Parkash, had no locus standi to file the present suit and that the house was purchased by her after paying a consideration of Rs. 30,000 before the Sub-Registrar. A number of other pleas were also taken. The trial court, after framing the issues, decreed the suit and gave a declaration to the effect that Ved Parkash, plaintiff-respondent, is the sole owner in possession of house No. 264-R, Model Town, Jalandhar. Smt. Prem Vati Bhandari, the vendee from Kamla Devi, has come up in appeal to this court.

Learned counsel for the appellant has contended that, in view of the coming into force of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as "the Act"), the present appeal has to be allowed as Section 4 of this Act which prohibits the filing of a suit to recover the property held benami is retroactive in nature. For this proposition, he has relied upon the Supreme Court decision reported as Mithilesh Kumar and Another Vs. Prem Behari Khare, . In this case, while interpreting the Act and Section 4 of the Act, the apex court held as under (at p. 1254 of AIR 1989 SC) :

"As defined in section. 2(a) of the Act, ''benami transaction'' means ''any transaction in which property is transferred to one person for a consideration paid or provided by any other person''. A transaction must, therefore, be benami irrespective of its date of duration. Section 3, subject to the exceptions, states that no person shall enter into any benami transaction. This section obviously cannot have retrospective operation. However, Section 4 clearly provides that 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. This naturally relates to past transactions as well. The expression ''any property held benami'' is not limited to any particular time, date or duration. Once the property is found to have been held benami, no suit, claim or action to enforce any right in respect thereof shall lie. Similarly, Sub-section (2) of Section 4 nullifies the defences based on any right in respect of any property held benami whether against the person in whose name the property is held or against any other person in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. It means that once a property is found to have been held benami, the real owner is bereft of any defence against the person in whose name the property is held or any other person. In other words, in its sweep, Section 4 envisages past benami transactions also within its retroactivity. In this sense, the Act is both a penal and a disqualifying statute. In the case of a qualifying or disqualifying statute, it may be necessarily retroactive. For example, when a law of representation declares that all who have attained 18 years shall be eligible to vote, those who had attained 18 years in the past would be as much eligible as those who attained that age at the moment of the law coming into force. When an act is declaratory in nature, the presumption against retrospectivity is not applicable. Acts of this kind only declare. A statute in effect declaring the benami transactions to be unenforceable belongs to this type. The presumption against taking away vested right will not apply in this case inasmuch as under law it is the benamidar in whose name the property stands, and law only enabled the real owner to recover the property from him which right has now been ceased by the Act. In one sense, there was a right to recover or resist in the real owner against the benamidar. Ubi jus ibi remedium. Where there is a right, there is a remedy. Where the remedy is barred, the right is rendered unenforceable. In this sense, it is a disabling statute. All the. real owners are equally affected by the disability provision, irrespective of the time of creation of the right. A right is a legally protected interest. The real owner''s right was hitherto protected and the Act has resulted in removal of that protection.

When the law nullifies the defences available to the real owner in recovering the benami property from the benamidar, the law must apply irrespective of the time of the benami transactions. The expression ''shall lie'' in Section 4(1) and ''shall be allowed'' in Section 4(2) are prospective and shall apply to present (future stages) and future suits, claims or actions only. This leads us to the question whether there was a present suit between the plaintiff-respondent and the defendant-appellant on the date of the law coming into force. We have noted the dates of filing the suit and judgments of the courts below. On the date of Section 4 of the Act coming into force, that is, May 19, 1988, this appeal was pending and, of course, is still pending. Can the suit itself be said to be pending ?"

In view of this authoritative pronouncement of the apex court, no suit on behalf of the plaintiff was maintainable to enforce any right in respect of the property held benami by Kamla Devi, defendant, on the ground that the plaintiff was the real owner of this property. Section 4 of the Act came into force with effect from May 19, 1988, on which date this appeal was pending and is still pending. In view of the law laid down by the Supreme Court in Mithilesh Kumar and Another Vs. Prem Behari Khare, , the appeal has to be allowed as Section 4 of the Act is retroactive in nature and applies to the pending suits and appeals arising out of such suits.

Before I part with this judgment, I would notice an argument which has been raised by learned counsel for the plaintiff-respondent. Learned counsel for the respondent has argued that, u/s 3(1) of the Act, no person shall enter into any benami transaction but Sub-section (2) creates an exception to Sub-section (1) of the Act which provides that nothing in Sub-section (1) shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and, in the present case, the property was purchased in the name of the wife, Smt. Kamla Devi, by Shiv Nand, father of the plaintiff, and hence this Act will not prohibit the suit by the real owner from recovering of property held benami in the name of the wife or daughter. I do not find any substance in this submission firstly because even if the property is purchased in the name of the wife or unmarried daughter, still the character of the transaction remains benami and is not taken out of the purview of Section 2(a) of the Act which defines "benami transaction" as any transaction in which property is transferred to one person for a consideration paid or provided by another person. Sub-section (2) of Section 3 of the Act, no doubt, creates an exception to the effect that property can be purchased by any person in the name of his wife or unmarried daughter but this does not mean that the rigour of Section 4(1) of the Act which bars the filing of a suit, claim or action to recover such a property is taken away. Section 3(1) of the Act provides that no person shall enter into any benami transaction and further Sub-section (3) of Section 3 of the Act provides that whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. What is saved by Sub-section (2) of Section 3 of the Act is that a person can buy the property benami in the name of his wife or unmarried daughter but he shall not be punishable under Sub-section (3) of Section 3 of the Act but this does not mean that the plaintiff retains the right to recover the property from the benami-holder by filing a suit.

Section 4 of the Act is a disqualifying section which prohibits the right to recover the property held benami and there is no exception in this section similar to Sub-section (2) of Section 3 of the Act. Moreover, as has been held by the Supreme Court in Mithilesh Kumar and Another Vs. Prem Behari Khare, , Section 3 of the Act is prospective in nature whereas Section 4 of the Act is retrospective in operation. This is evident from Sub-section (3) of Section 1 of the Act which provides that sections 3: 5 and 8 would come into force with effect from September 5, 1988, i.e., the day on which the Act received the assent of the President of India whereas the remaining provisions including Section 4 would be deemed to have come into force with effect from May 19, 1988, that is, prior to the Presidential assent to the Act, It can be examined from another angle also. A person can purchase the property under Sub-section (2) of Section 3 of the Act benami in the name of his wife or unmarried daughter but the right of the real owner to recover the property from the benamiholder has been eliminated by Section 4 of the Act. Earlier, there was a right to recover or resist, the claim of the real owner against the benamidar but now that remedy stands barred and the right rendered unenforceable as has been held by the apex court in Mithilesh Kumar and Another Vs. Prem Behari Khare, . It is a disabling statute and all the real owners are equally affected by the disability provision provided in Section 4 of the Act. Hence, I find no force in the submission of learned counsel for the respondent.

In view of my finding recorded above, I would not go into the factual merits of this case. The appeal is accepted, judgment and decree of the trial court is set aside and the suit filed by the plaintiff-respondent is dismissed with no order as to costs.