NDLI: Om Prakash and Anr. Vs. Jai Prakash

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Benami Transaction
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Benami Transactions (prohibition) Act, 1988 (45 of 1988)
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	Benami Transaction (Prohibition) Act, 1988-Section 4 read with Article 136, Constitution of India, 1950-SLP pending before the Supreme Court, whether amounts to appeal pending-Suit based on benami transaction instituted prior to the coming into force of the Act, whether barred. Benami Transaction (Prohibition) Act, 1988-Section 4-"Shall lie", "Shall allow" and "any property held benami"-Construction of Code of Civil Procedure, 1908- 0rder 6, Rules 1, 2, 7-Pleading Written statement-Question of applicability of section 49 of the U.P. Consolidation of Holdings Act not averred-Whether such plea can be taken later on appeal. The defendant-appellant No. 1 and plaintiff-respondent were brothers and defendant-appellant No. 2 was the wife of appellant No. 1. The appellant No. 1 was in Government service ever since 1953. The plaintiff-respondent was loosing after the entire agricultural property in the village. Partition was effected during consolidation proceedings and entered in the revenue records and chaks were carved out in accordance with the share of the parties in the consolidation proceedings. During the consolidation operation, the plaintiff-respondent did not raise any dispute that he was owner of the entire property and the names of defendants-appellants were wrongly mentioned as benami. Later, the plaintiff-respondent filed a suit on the ground that the suit-land was purchased by him alone through 4 sale deeds dated 10.6.1968, 21.6.1968, 17.1.1976 and 23.6.1977, wherein the names of the defendants-appellants were included only as benamidar and he was the real owner of the land. The defendants-appellants contended that they had paid their part 15 16 SUPREME COURT REPORTS [1992] 1 S. C. of the sale consideration and the land was jointly purchased in the name of both the parties. The trial court dismissed the suit holding that the names of the defendants-appellants in the sale deeds were not mentioned as benamidars and that the plaintiff-respondent did not take any objection in the B consolidation proceedings. When the plaintiff-respondent filed an appeal before the first appellate court, it reversed the judgment and decree of the trial court and decreed the suit in favour of the plaintiff-respondent. The second appeal filed by the defendants-appellants was dismissed by the High Court. The defendants filed a special leave petition before this Court on 15th March 1988. During the pendency of the special leave petition, the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988 was promulgated on 19.5.1988. The Ordinance was replaced by the Benami Transactions (Prohibition) Act, 1988, which received the President's assent on 5.9.1988. The defendants filed an application on 1.5.1989 for allowing them to take additional grounds made available on the basis of the aforesaid 'Benami Act'. Thereafter special leave was granted by order dated 21.8.1989 and the parties were given liberty to file additional documents, if any, within four weeks. The defendants-appellants contended that the suit filed by the plaintiff-respondent was not maintainable and barred under Section 49 of the U.P. Consolidation of Holdings Act, 1954 as the point regarding the land in question being benami was never raised by the plaintiff respondent during consolidation proceedings and the chaks were allowed G to be recorded in the name of the defendant-appellants. The plaintiff-respondent contended that if the ratio of Mithilesh Kumari's case, JT. 1989(1) SC 275, was applied, it could be made available only in a case where appeal was pending before the higher Court and that no advantage could be taken by the defendants-appellants, of Section 4 of the Benami Act, as no appeal was pending on the date when the Benami Act came into force. On the question, whether any suit relating to benami transactions can be decreed after the coming into force of the Benami Act, this Court, allowing the appeal or the defendants,
Judge	Hon'ble Mr. Justice N.M. Kasliwal
Neutral Citation	1992 INSC 3
Petitioner	Om Prakash And Anr.
Respondent	Jai Prakash
SCR	[1992] 1 S.C.R. 15
Judgement Date	1992-01-09
Case Number	3552

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