C KARUPAKARA RAO Vs. R SUBBA RAO

JUDGEMENT

(1.) THE plaintiff is the appellant. THE plaintiff has filed the suit for declaration that he is the owner of a sum of Rs. 35, 000 deposited in the second defendant bank, in fixed deposit in the name of the first defendant and to pay the same to the plaintiff with interest contending that the plaintiff obtained a pay order in favour of the first defendant from the Bank of America since the first defendant was going away to Bombay and deposited the said pay order with the second defendant in fixed deposits.

(2.) THE first defendant in his written statement has stated that he was in Madras only and did not go to Bombay and the amount in the fixed deposit belongs to him and he has got valid title to the same. THE second defendant in a separate written statement has contended that the plaintiff handed over a pay order drawn in favour of the first defendant for Rs. 35, 000 with a request to open a fixed deposit account in the name of the first defendant and also requested the second defendant to hand over necessary forms for getting the signature of the first defendant and in good faith, the second defendant has opened a fixed deposit account for Rs. 35, 000 in the name of the first defendant and the fixed deposit receipt is with them and the amount has not been paid either to the plaintiff or to the first defendant and they will abide by any order passed by the trial court. On a consideration of the evidence placed before the court, the IXth Assistant Judge, City Civil Court, has come to the conclusion that the plaintiff has failed to establish that he is the owner of the amount in fixed deposit and, therefore, he is not entitled to the declaration and for other reliefs. Aggrieved over the same, the plaintiff has come forward with this appeal.

(3.) THE decision in Mithilesh Kumari v. Prem Behari Khare has laid down that the provisions of section 4 relates to past transaction as well. THE apex court has held-that the expression "any property held benami" is not limited to any particular time, date or duration, and once the property is found to have been held benami, no suit, claim or action, to enforce any right in respect thereof shall lie. THErefore, even assuming that the amount in the deposit of the second defendant is found to be held benami in the name of the first defendant, the present suit for declaration cannot be maintained as, per section 4 of the Benami Transactions (Prohibition) Act.