2018 (3) TMI 642

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....2017 by which the trial court has dismissed the counter claim as being barred by the Benami Transactions (Prohibition) Act, 1988. I may note that with effect from 1.11.2016 the Benami Transactions (Prohibition) Act, 1988 was amended and the new Act is now called as the Prohibition of Benami Property Transactions Act, 1988. Since the new Act has now become applicable with effect from 1.11.2016 and the counter claim was filed by the appellant nos. 1 and 2 /defendant nos. 1 and 2 in May, 2017, therefore what will govern the parties is not the Benami Transactions (Prohibition) Act, 1988 but the Prohibition of Benami Property Transactions Act, 1988. 2. By the subject suit the respondents/plaintiffs sought possession, damages etc. of the suit ....

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....s it stood was repealed in terms of the Amended Act which came into force with effect from 1.11.2016 and what was contained in some part of sub-sections (3) of Section 4 of the Benami Transactions (Prohibition) Act, 1988 as originally stood was incorporated in the definition of "Benami Transaction" as found in Section 2(9) of the Prohibition of Benami Property Transactions Act. This provision of Section 2(9) of the Prohibition of Benami Property Transactions Act, 1988 is reproduced as under:- "(9) benami transaction means,- (A) a transaction or an arrangement- (a) where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by, another person; and (b)....

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....r (C) a transaction or an arrangement in respect of a property where the owner of the property is not aware of, or, denies knowledge of, such ownership;   (D) a transaction or an arrangement in respect of a property where the person providing the consideration is not traceable or is fictitious; Explanation.-For the removal of doubts, it is hereby declared that benami transaction shall not include any transaction involving the allowing of possession of any property to be taken or retained in part performance of a contract referred to in section 53A of the Transfer of Property Act, 1882, if, under any law for the time being in force,- (i) consideration for such property has been provided by the person to whom possession....

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....ants have not claimed to be trustees, executors or partners or directors of company, etc. as per the meaning of these expressions in Section 2(9)(A)(b)(ii) the Prohibition of Benami Property Transactions Act. 6. Let us now examine as to whether appellant nos. 1 and 2 /defendant nos. 1 and 2 can take benefit of Section 2(9)(A)(b)(iv) of the Prohibition of Benami Property Transactions Act, 1988. 7. A reading of the provision of Section 2(9)(A)(b)(iv) of the Prohibition of Benami Property Transactions Act, shows that no doubt there can be a transaction, which will not be a benami transaction, if the same is entered into between sisters, but the precondition for applicability of the exception in Section 2(9)(A)(b)(iv) of the Prohibition o....