PATEL HIRALAL VIRCHANDDAS Vs. PATEL HIRALAL MADHAVLAL

JUDGEMENT

(1.) THE present Second Appeal has been filed by the appellants-original defendants raising the following substantial questions of law: Whether, on the facts and circumstances of the case, the so-called transaction between plaintiffs and defendants is barred by Benami Transaction (Prohibition) Act, 1988? And whether suit is maintainable in view of the enactment of the above Act after filing of the suit and more particularly by virtue of Section 7 of the said Act, Sections 81, 82 and 94 of the Indian Trust Act are repealed? Whether, on the facts and circumstances of the case, the suit, claim or action to enforce any right in respect of any property held benami would be maintainable in view of the Benami Transaction (Prohibition) Act, 1988? Whether, on the facts and circumstances of the case, Section 3 of the said Act would apply or Section 4(3)(B) of the said Act would apply to the present fact situation? Whether, on the facts and circumstances of the case, the lower Appellate Court is right in holding that Section 4(3)(B) would apply to the present fact situation? What is the meaning of ?Fiduciary Relation? and whether, on the facts and circumstances of the case, it can be said that relation of uncle (Masa) and nephew is fiduciary relation?

(2.) THE short facts of the case, briefly stated, are that the plaintiffs filed a suit being Special Civil Suit No. 87/1980 before the Court of Civil Judge (S.D.), Mehsana for the prayer of declaration that the plaintiffs are co-owners of the agricultural land with two-third share and it may also be declared that the defendants are the benamidar holding in a trust for and on behalf of the plaintiffs. THE said suit, after considering the evidence which has been discussed, came to be dismissed by the learned Civil Judge (S.D.), Mehsana, vide judgment and order dated 5.8.1989. THE said judgment and order was challenged by way of Regular Civil Appeal No. 16/2006 (First Appeal No. 1347 of 1989 before the High Court) which came to be allowed, whereby the judgment and order passed by the trial court in Special Civil Suit No. 87/80 was quashed and set aside for the reasons discussed therein.

(3.) IT is in this background the substantial questions of law posed in this Second Appeal would not survive as it has been covered by the subsequent judgment of the Hon'ble Apex Court in the case of R. Rajagopal Reddy (dead) by LRs and ors. (supra) and therefore the present Second Appeal would not survive as there is no substantial question of law and the same has already been decided.