MITHILESH KUMARI Vs. PREM BEHARI KHARE

JUDGEMENT

(1.) This appeal by special leave is from the judgment and order dated 27-3-1978 of the High Court of judicature at Allahabad (Lucknow Bench), in second appeal No. 130 of 1975, dismissing the appeal and upholding the decree of the plaintiff-respondent's suit.

(2.) The plaintiff-respondent Prem Behari Khare instituted suit No. 42 of 1971 in the Court of Civil Judge, Mohanlal Gunj, Lucknow praying for the reliefs, inter alia, that he be declarel to be the sole and real owner of the suit house; and that the defendant-appellant be, permanently restrained from transferring the suit house. The learned Civil Judge, Lucknow, by his judgment dated 13-3-1974 decreed the suit declaring the plaintiff to be the sole and real owner of the suit house and permanently restraining the defendant from transferring the suit house to any other person. On first appeal by the defendant-appellant the learned Additional District Judge, Lucknow by his judgment dated 23-12-1974 dismissed the appeal agreeing with the findings of the trial court that it was the plaintiff-respondent who paid the consideration and purchased the suit house benami in the name of the defendant- appellant who, therefore, had no right to create any equitable mortgage or to transfer the suit house. The defendant-appellant's second appeal thereafter was also dismissed by the High Court of Judicature at Allahabad by the impugned judgment dated 27-3-1978. Hence this appeal by special leave.

(3.) Mr. X. B. Rohtagi learned counsel for the appellant submits, inter alia, that the learned courts below erred in holding that the suit house was not gifted by the plaintiff to the defendant but was held benami in her name; and that even if it was so held benami, the subsequent legislation, namely, the Benami Transactions (Prohibition) Act, 1988, has put a complete bar to the plaintiffs suit against the defendant in respect of the suit house.