TaxTMI 
TaxTMI 
2005 (8) TMI 688
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....he was given to understand that the suit property was her own property. She was married to one Shri C.Thippeswamy on 4th of December, 1980. Relationship between the appellant and the respondent was cordial till 8th of October, 1983, and only thereafter relationship became strained. At that stage she asked for vacation of the suit property not only from the appellant and his family but also from the tenants who were defendants 2 to 5 in the suit and for payment of rent to her. The appellant and the tenants had, however, refused to vacate their respective portions of the suit property in their possession or to pay rent to her. Accordingly, the respondent was constrained to file the suit for declaration of title and recovery of possession in respect of the suit property on the averment that since the suit property stood in her name, and the same was purchased for the benefit of the respondent and as a security for her marriage she was entitled to a decree for declaration and possession. The suit was however filed on 5th of July, 1984. The appellant resisted the claim of the respondent on various grounds by filing a written statement. According to the appellant, the suit property wa....
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....of the suit property as contended by her? 3) Is she entitled for damages as claimed by her? 4) To what relief the plaintiff was entitled, if any? An additional issue was framed which is of the following effect: Does defendant No.1 prove that the suit was purchased nominally in the name of the plaintiff under the circumstances pleaded in the written statement, the plaintiff is a benamidar and he is the real owner of the suit property, as contended? Parties went to trial after adducing evidence to support their respective claims as made out in the pleadings. Both the courts found on consideration of the oral and documentary evidence on record as well as the pleadings that 1) the appellant had paid the purchase money. 2) the original title deeds were with the appellant. 3) the appellant had mortgaged the suit property for raising loan to improve the same. 4) he paid taxes for the suit property. 5) he had let out the suit property to defendant Nos. 2 to 5 and collecting rents from them. 6) the motive for purchasing the suit property in the name of plaintiff was that the plaintiff was born on an auspi....
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.... indicate that the suit property was treated as the property of his own and the respondent was never accepted by him to be a real owner of the same. The other ground on which the concurrent findings of fact were set aside and suit was decreed is to the following effect: "Even otherwise, as could be gathered from the evidence and representation made at the Bar, her father used to purchase the property in the name of all his sons and daughters on auspicious days. It can be clearly gathered that the intention of the father was to benefit his children to avoid any possible conflict or dispute that may arise between them with reference to sharing of the properties after his life time. Therefore, taking the view on equity as well, and the cumulative circumstances, I am inclined to hold that the plaintiff is entitled to be held as the owner of the property." We are unable to agree with this conclusion of the High Court. It is difficult to rely on the representation from the Bar that the appellant used to purchase properties in the names of his children on auspicious days and for that the intention of the appellant to purchase the suit property for the benefit of the daughter o....
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.... If so, in view of Section 4(2) of the Act, plea of benami in the defence of the appellant was not available to him. Before a two Judges Bench decision of this Court, in the case of Mithilesh Kumari and another Vs. Prem Behari Khare 1989(2) SCC 95 this question had cropped up. In that decision, it was held that the question of benami cannot be taken as a plea either in the plaint or in the written statement even when the sale deed was executed and registered before the introduction of the Act and when the suit was filed before the Act had come into force. Before we proceed further, we may remind ourselves of certain provisions of the Act. Section 2 (a) defines 'benami transactions' which means any transaction in which property is transferred to one person for a consideration paid or provided by another person. Section 3 (1) and (2) reads as under: 3(1) "No person shall enter into any benami transactions. (2) 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 it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of wife ....
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....observations made in respect of some cases which would be mentioned hereinafter. In paragraph 10 it was observed as follows:- "though the Law Commission recommended retrospective applicability of the proposed legislation, Parliament did not make the Act or any of its sections retrospective in its wisdom.". Thereafter on a careful consideration of the provisions made under sections 3 and 4 of the Act, it was observed: "A mere look at the above provisions shows that the prohibition under Section 3(1) is against persons who are to enter into benami transactions and it has laid down that no person shall enter into any benami transaction which obviously means from the date on which this prohibition comes into operation i.e. w.e.f. 5/9/1988. That takes care of future benami transactions. We are not concerned with sub-section (2) but sub-section (3) of Section 3 also throws light on this aspect. As seen above, it states that whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with find or with both. Therefore, the provision creates a new offence of entering into such benami transaction. It is made non-cogn....
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....erties are held no defence can be allowed at any future stage of the proceedings that the properties are held benami cannot be sustained. It was also held that Section 4(2) will have a limited operation even in cases of pending suits after Section 4(2) had come into force, if such defences are not already allowed. The decision in R. Rajagopal Reddy (Dead) by LRs. And Ors. Vs. Padmini Chandrasekharan (Dead) by LRs. 1995 (2) SCC 630 which overruled the decision of two Judges Bench in the case of Mithilesh Kumari and Anr. Vs. Prem Behari Khare 1989 (2) SCC 95 was also approved by this Court in the cases of Prabodh Chandra Ghosh Vs. Urmila Dassi AIR 2000 SC 2534 and C. Gangacharan Vs. C.Narayanan AIR 2000 SC 589. In view of the aforesaid, this question is, therefore, no longer res integra. Therefore, we are now to consider in this case whether the facts disclosed would indicate that even after coming into force of the Act the defence under Secion 4 can be available. Admittedly, the transaction in question was registered on 24th August, 1970. The suit was filed on 5th of July 1984 which was long before coming into force of the Act. It is an admitted position that the written statemen....
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.... ( in this case respondent ), that presumption got rebutted as the appellant had successfully succeeded by production of cogent evidence to prove that the suit property was purchased in the benami of the respondent for his own benefit. Let us now consider whether the concurrent findings of fact could be set aside by the High Court in the second appeal. It is well settled by diverse decisions of this Court that the High Court in second appeal is entitled to interfere with the concurrent findings of fact if the said concurrent findings of fact are based on non- consideration of an important piece of evidence in the nature of admission of one of the party to the suit, which is overlooked by the two courts below ( See [2003 (7) SCC 481, Deva (Dead) Through LRs Vs. Sajjan Kumar (Dead) by LRs] ). It is equally well settled that under section 100 of the Code of Civil Procedure, High Court cannot interfere with concurrent findings of facts of the courts below without insufficient and just reasons. (See [2003(7)SCC 52, Sayeda Akhtar Vs. Abdul Ahad]). In second appeal, High Court is also not entitled to set aside concurrent findings of fact by giving its own findings contrary to the evide....