1988 (6) TMI 3

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....ceived valuable consideration as earnest money and entered into the contract, but he refused to execute the sale deed despite several legal notices, constraining the appellant to lay the suit for specific performance. The trial court framed issue No. 1. "Whether the first defendant purchased the plaint schedule property in the names of defendants Nos. 2 and 4 benami for his own benefit ?" and additional issue framed on September 4, 1979 Whether the plaintiff has locus standi to question the sale transaction as benami ?" On a consideration of the evidence, it was held that that is not benami transaction and defendants Nos. 2 and 4 are the owners of the property and refused specific performance and granted a decree for refund of the earnest m....

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....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." (Emphasis supplied). Sub-section (2) is not relevant. Sub-section (3) is the saving clause which reads thus: "Nothing in this section shall apply, (a) where the person in whose name the property is held is coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity." Sections 3....

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....whereas in the former there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none such, the transferor continuing to retain the title notwithstanding the execution of the transfer deed. It is only in the former class of cases that it would be necessary, when a dispute arises as to whether the person named in the deed is the real transferee or B, to enquire into the question as to who paid the consideration for the transfer, X or B." Therefore, when there is an acute dispute as to who is the person, namely, whether the first respondent or the second respondent and the fourth respondent, i.e., defendants Nos. 2 and 4, are the real owners of the property and whether the latter held the sui....