BHAURAO LAXMAN HONDE Vs. NAMDEO LAXMANHONDE

JUDGEMENT

(1.) THE petitioner/plaintiff filed the Suit, against the defendant for declaration of ownership and possession of the suit property, bearing Civil Suit No. 341/1988. The plaintiff and the defendant are the real brothers. The plaintiff has founded his suit on the document of title viz. sale deed dated 18. 4. 1955 under which he claims to have purchased the said property from one Shri ramchandra Hari Chothe, under a registered sale deed and it is this document of title on which the claim of ownership is founded. The suit was instituted on 21. 10. 1988. The defendant no. 1 filed his Written Statement on 20. 2. 1989. In the Written Statement, the defendant No. 1 categorically pleaded that though the sale-deed had been executed by the vendor in the name of the plaintiff, the defendant No. 1 is the real owner as the transaction was a benami transaction. The defendant no. 1 has pleaded that it is he who has paid the consideration and he is the real owner. To substantiate the factum of payment by him, the defendant no. 1 has also averred that his wife was present in the Office of the Sub-Registrar and she paid the money on his behalf.

(2.) A bare perusal of the pleadings, the moot issue was as to whether the transaction in question was a benami transaction or real transaction. The Benami transactions (Prohibition) Act, 1988, came into force on 5th September 1988 and only the provisions of Sections 3, 5 and 8 have come into force on 9th May, 1988. Section 3 of the said Act prohibits benami transactions subject to certain exceptions. Section 4 prohibits right to recover property held benami. In the present case, Section 4 sub-section (2) is material and the same reads thus :

(3.) WHAT needs to be noticed is that sub-section (2) of Section 4 prohibits a defence being raised, based on any right, in respect of any property held benami. The defence of benami transaction has been raised in the instant case by filing a written Statement on 20. 2. 1989 i. e. after the coming in force of the Act [section 4 sub-section (2)]. It appears that the plea of benami transaction is raised in ignorance of Section 4 (2 ). Be that as it may. Section 4 (2) operates with full vigour in the present case.