TaxTMI 
TaxTMI 
2017 (3) TMI 1618
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....t (original Plaintiff). The Plaintiff was then about 3 to 4 years old. It is the case of the Defendant that he brought up all three children, including the Plaintiff, educated them and settled them in life as his own children. The Plaintiff was trained as a nurse and worked in Delhi and thereafter, in Saudi Arabia. She was married on 24 August 1988 with one Deepak Ghoderao, but that marriage turned out to be a bigamous marriage of the said Ghoderao and as such null and void. After a protracted litigation before a civil court as well as church authorities at Pune and Mumbai, the marriage was declared as null and void by the church authorities. It is the case of the Defendant that he purchased a property at Pimple Gurav (Dapodi) at Pune for himself with his own money but in the name of the Plaintiff. It is submitted that this property was sold by the Defendant sometime in 1996 and sum of Rs. 1,10,000/- was received by the Defendant. It is submitted that in 1992, another piece of land, namely, the suit property, was purchased by the Defendant with his own money in the name of the Plaintiff. It is submitted that the documents of title were always remained with the Defendant; taxes in r....
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....ami transaction" governing the case would be the amended definition contained in the Benami Act. It is submitted that under this definition, any property which is held by a person, being an individual, in the name of his spouse or child is excepted from the definition of "benami transaction" contained in sub-section (9) of Section 2 of the Amended Act, provided the consideration for such property has been provided or paid out of the known sources of the individual. It is submitted that this condition is satisfied by the Appellant in the present case. It is submitted that the word or expression "child", not having been defined in the Benami Act but defined in the Income Tax Act, 1961, shall have the meaning assigned to it under the latter Act. It is submitted that going by that meaning, even a step-child of an individual is included within the definition of "child". It is submitted, accordingly, that the Plaintiff as a step-daughter of the Defendant comes within the definition of "child" and the purchase of the suit property by the Defendant in her name is not covered within the definition of "benami transaction" and thus, the plea that the right to the suit property vests in the De....
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....is held being a coparcener in a Hindu undivided family and the property being held for the benefit of the coparceners of the family. The second exception was in respect of the person, in whose name the property was held, being a trustee or other person standing in a fiduciary capacity and the property being held for the benefit of another person for whom he was such trustee or towards whom he stood in such capacity. The present suit was filed when these provisions were in operation. These provisions continued to apply even when the written statement was filed by the Defendant and the suit was heard and decreed by both the courts below. The legal provisions continued to apply even when the second appeal was filed before this court. It is only now during the pendency of the second appeal, when it has come up for final hearing, that there is a change in law. The Benami Act has been amended by the Parliament in 2016 with the passing of the Benami Transactions (Prohibition) Amendment Act, 2016. This amendment has come into effect from 01 November 2016. In the Amended Act the definition of "benami transaction" has undergone a change. Under the Amended Act "benami transaction" means (unde....
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....l as the suit decreed by the courts below before the amended act was introduced. 6. Mr. Pungalia submits that it is the duty of the court, whether it is trying original proceedings or hearing an appeal therefrom, to take notice of the change in law pending the action and to give effect to the same. It is submitted that when a legislature says no suit would be "entertained" or "instituted" or no defence shall be "raised", any change in law may not affect pending actions and there may be a case of only a prospective application of such change in law. It is submitted, however, that if the law provides that after the commencement, no suit shall be "disposed of", or no decree shall be "passed", or no defence shall be "allowed", as the expressions in Section 4 of the Benami Act provide, the change in law applies even to pending proceedings and must be taken judicial notice of by civil courts. Learned Counsel relies on the Supreme Court decision in the case of United Bank of India, Calcutta v. Abhijit Tea Co. Pvt. Ltd. (2000) 7 SCC 357 Learned Counsel also relies on the Supreme Court judgment in the case of Dayawati v. Inderjit AIR 1966 SC 1423 (V 53 C 277) and submits that laws affect....
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....suits, claims and actions only. These observations clearly hold the field even as regards the present amendment to the Benami Act. The amendments introduced by the Legislature affect substantive rights of the parties and must be applied prospectively. 9. That brings us to the alternative submission made by Mr. Pungalia. It is submitted that even under the law as it stood prior to its amendment in 2016, the Plaintiff being an unmarried daughter of the Defendant, the purchase made by the Defendant in her name is excepted from the prohibition of benami transactions within the meaning of Section 3 of the Benami Act, as it then stood. This argument has two aspects. One, whether the Plaintiff was married as on the date of the suit transaction, that is to say, as on the date of the purchase of the suit property, her marriage with Ghoderao being null and void and non-est on account of Ghoderao being already married. And second, as far as the expression "daughter" is concerned, whether a step-daughter is included in it independent of the definition "child" in the Income Tax Act, 1961 (since that was not the mandate of the law at the relevant date). Though the first point is debatable, I ....