BHARGAVY P SUMATHYKUTTY Vs. JANAKI SATHYABHAMA FB

JUDGEMENT

(1.) The nub of the dispute, shorn of all its ramifications, is whether S.4 of the Benami Transactions (Prohibition) Act, 1988 (for short 'the Benami Act) applies to "sham transactions". Bhaskaran Nambiar, J. has held in Ouseph Chacko v. Raman Nair ( 1989 (1) KLT 767 ) that it does not. But one of the observations made by Balakrishnan, J. in Mohanan v. Yesoda ( 1989 (1) KLT 867 ) is treated as expression of contrary view. Though the decision of Balakrishnan, J. was rendered earlier in point of time, we don't think that Bhaskaran Nambiar, J. was not aware of the said decision. Varghese Kalliath, J. while hearing arguments in C.R.P.No. 1446/89 noticed the aforesaid conflict in views of two learned Judges mentioned above and hence through a fairly lengthy reference order referred the question to a Bench which in turn the Division Bench has referred to the Full Bench.

(2.) Shri. Thottathil B. Radhakrishnan, advocate, has raised a contention that Balakrishnan, J. has not in fact adopted a contrary view in Mohanan v. Yesoda (1989 (1) KLT 867) in conflict with the ratio involved in Ouseph Chacko v. Raman Nair (1989 (1) KLT 767). Be that as it may, we will now examine the question whether sham transactions are included within the purview of the Benami Act at least partially.

(3.) For the sake of convenience we will set out the facts in C.R.P.No. 1446/89 in which Varghese Kalliath, J. has passed the reference order. That revision arose out of a suit filed for a declaration that title of the suit property is that of the plaintiff inspite of a document executed by the plaintiff in favour of his wife purporting to a transfer the property to the transferee. According to the plaintiff, it was a sham transaction and the property ever remained with him. Hence the suit for declaration of title. But the wife contended that it was a genuine transaction. She resisted the suit, inter alia, on the ground that the suit is not maintainable in view of S.4 of the Benami Act. The contention was repelled by the Trial Court on the strength of the decision in Ouseph Chacko's case. So, the defendant filed the revision against the said order by which the objection regarding maintainability was repelled.