TaxTMI 
TaxTMI 
2023 (8) TMI 68
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.... Gunthas situated at village Dadgi, Taluka Nilanga to the extent of 1/2 share by way of partition. The plaintiff further prayed for declaration that sale deed dated 29.04.1966 executed by defendant No.2 in favour of the defendant No.1 is not binding on his half share and the same is null and void. 3. The plaintiff and defendant No. 2 are the members of joint Hindu family. The defendant No.2 is the plaintiff's elder brother. The suit property is the joint family property of plaintiff and defendant No.2. It was purchased under sale deed from one Tulshiram Manaji Gobade in the name of the plaintiff and defendant No.2. According to the plaintiff, the suit property was purchased from the sale proceed of the ancestral joint family property. After purchase, the plaintiff and defendant No.2 became the owner and were in possession of the same till defendant No.2 sold it to the defendant No.1. The plaintiff was minor at the relevant time and defendant No.2 cultivated the suit property for himself and for minor plaintiff. 4. It is further the case of the plaintiff that on attaining the majority, the plaintiff came to know that the defendant without any right has sold the entire suit pro....
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....o 5. Does the pltf. prove that the possession of the deft. is illegal ? No 6. Does pltf. prove that the defts. refused to deliver the possession of the suit land in the month of Dec.1971 ? Question does not arise. 7. Does pltf. prove his title in respect of the suit land on the basis of partition ? No. Additional issues 1. Whether the deft.No.1 proves that the alienation made in his favour by respondent no.2 was for legal necessity? 2. Whether the mother of the pltf. and deft. No.2 is a necessary party to the suit ? If yes, what is effect. These issues do not survive 3. Whether pltfs' claim is barred by limitation? 4. What order or decree ? The suit is dismissed. On the basis of the aforesaid issues, the findings are recorded by the trial Court. 7. The trial Court held that the plaintiff has not proved that the suit property is joint family property. The trial Court held that the plaintiff was not able to prove that there was any nucleus of the joint family property from which they have purchased the suit property. The trial Court further held that there was no evidence that any ancestral property was in exi....
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....th the Courts below did not consider the very material aspect of this case which is evidence from the record that the suit land has been purchased by the plaintiff and defendant No. 2 jointly and the sale deed which is the sufficient evidence to establish the joint ownership has been not considered by the Court below. IV] That, the contesting defendant/ respondent No. 1 has amended his written statement and contended that the alienation of the suit land by defendant No. 2 in his favour was for legal necessity. The learned District Judge in Appeal No. 138/80 has remanded the case for framing the issue about legal necessary alongwith the other issues, but the learned Civil Judge, has answered these additional issues "DOES NOT SURVIVE", thus the very purpose of remanding the case has been frustrated. VIII] That, as property hold by a minor can not be sold without the permission of the District Court as per the provisions of Section 29 of the Guardian and Wards Act 1890 but unfortunately the said point has not been considered by the courts below. Thus the sale transaction in favour of defendant No. 1 by the defendant No. 2 is void. Therefore no ownership rights have been validly tr....
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....ourt held that the property is not the ancestral property. The suit property is held to be purchased by the defendant No.2. As such, the question of law No. II, does not arise for consideration. 11. As regards question No. IV is concerned, since both the Courts below have held that the suit property is individual property of the defendant No.2 and not a joint family property, the issue of sale of the suit property for legal necessity does not survive, therefore, the substantial question of law No. IV does not survive for consideration. 12. As regards question No. VIII is concerned, the issue as regards the property held by a minor cannot be sold without permission of the District Court as per the provisions of Section 29 of the Guardian and Wards Act, 1890, it is to be noticed that the property in question is not held to be that of the minor as he was merely a nominal owner. Since the property is exclusively purchased by the defendant No.2, there is no impediment for the defendant No.2 to sell the suit property. 13. As regards question Nos. VIII-A, VIII-B, VIII-C and VIII-D are concerned, all these questions relate to Benami Transactions [Prohibition] Act, 1988, however, in the ....
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....easons for taking the view that though Section 3 is prospective and though Section 4(1) is also not expressly made retrospective, by the legislature, by necessary implication, it appears to be retrospective and would apply to all pending proceedings wherein right to property allegedly held benami is in dispute between parties and that Section 4(1) will apply at whatever stage the litigation might be pending in the hierarchy of the proceedings: (1) ... (2) ... (3) ... (4) ... (5) ... (6) ... 11. Before we deal with these six considerations which weighed with the Division Bench for taking the view that Section 4 will apply retrospectively in the sense that it will get telescoped into all pending proceedings, howsoever earlier they might have been filed, if they were pending at different stages in the hierarchy of the proceedings even up to this Court, when Section 4 came into operation, it would be apposite to recapitulate the salient feature of the Act. As seen earlier, the preamble of the Act itself states that it is an Act to prohibit benami transactions and the right to recover property held benami, for matters connected therewith or incidental thereto. Thus it was ....
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....o force of the prohibitory provision of Section 4(1); but that is the only effect of the retroactivity of Section 4(1) and nothing more than that. From the conclusion that Section 4(1) shall apply even to past benami transactions to the aforesaid extent, the next step taken by the Division Bench that therefore, the then existing rights got destroyed and even though suits by real owners were filed prior to coming into operation of Section 4(1) they would not survive, does not logically follow. 12. So far as Section 4(2) is concerned, all that is provided is that if a suit is filed by a plaintiff who claims to be the owner of the property under the document in his favour and holds the property in his name, once Section 4(2) applies, no defence will be permitted or allowed in any such suit, claim or action by or on behalf of a person claiming to be the real owner of such property held benami. The disallowing of such a defence which earlier was available, itself suggests that a new liability or restriction is imposed by Section 4(2) on a pre-existing right of the defendant. Such a provision also cannot be said to be retrospective or retroactive by necessary implication. It is also pe....
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....ined in the Act was applicable to the pending appeal. This Court in the case of Dattaram Govindrao Kale [minor] Vs. Manikumar Ishwarlal Lokwani & others in Second Appeal No. 386 of 1991 in para No.8 and 11 has held thus : 8. The Hon'ble Supreme Court in the case of R. Rajagopal Reddy, has held that the plaint would not lie under section 4(1) of the Benami Transactions (Prohibition) Act for a claim to enforce any right in respect of any property held benami, against the person in whose name the property is held after coming into effect of the Act, even if the transactions were prior in point of time. Also under section 4(2) of the Act if a suit is filed by plaintiff who claims to be owner of the property on the basis of ownership document and claims ownership on the basis that the property is in his name, after the coming in force of the Act no defence would be permitted or allowed in any such suit, claim or action by or on behalf of the person claiming to be the real owner of such property held benami. Section 4(2) restricts the defence of a pre-existing right. Such a provision the Hon'ble Supreme Court has held in the case of R. Rajagopal Reddy (supra), cannot be retrosp....