MILAN MADHUKAR KORGAONKAR Vs. SHASHANK SHRIKRISHNA GANDHI

JUDGEMENT

(1.) To state in brief, this Second Appeal is filed by the original defendant. The plaintiff and defendant were married in 1979. The plaintiff claimed that he had purchased the suit land for consideration of Rs. 5,000/- under the sale deed dated 21.1.1981 in the name of the appellant. However, she was only an ostensible owner or benamidar, while the plaintiff himself was the real owner of the property. The dispute arose between husband and wife and she left the house of her husband in the year 1984. Thereafter, the plaintiff moved an application for mutation of the land in his name. Though that application was allowed, in the appeal that order was set aside by the Collector, as the sale deed was in the name of wife. He challenged the order of the Collector before the Commissioner and then in the High Court by filing a Writ Petition. The Writ Petition was dismissed on 9.1.1989 and the High Court observed that the plaintiff could seek declaration of title to the suit property by filing a civil suit. After that the plaintiff filed Regular Civil Suit No. 227 of 1989 seeking declaration of his title and injunction restraining the defendant from causing any interference in her possession. Before that divorce had taken place between the parties.

(2.) The defendant/appellant contended that she is the real owner of the land and she had purchased the property in her name. It was contended that the suit was barred by the provisions of the Benami Transactions (Prohibition) Act, 1988 and also by the Limitation Act.

(3.) several issues were framed by the trial Court and the trial Court dismissed the suit holding that the suit is barred by the provisions of the Benami Transactions (Prohibition) Act, 1988. The trial Court also came to conclusion that the defendant had purchased the property from her own funds through the father of the plaintiff, who was her power of attorney holder. Against dismissal of the suit, the plaintiff preferred Regular Civil Appeal No. 52 of 1993. The Appeal was allowed. The first appellate Court came to conclusion that the plaintiff had purchased the property in the name of his wife only because of love and affection and he had paid consideration for the same. He also held that the purchase of property by the husband in the name of wife is not prohibited under the Benami Transactions Prohibition Act and as the said Act came into force in 1988, while the transaction had taken place in 1981, there is no presumption that the property was purchased for the benefit of the wife. He also held that the suit is within limitation. In the result, the Appeal was allowed and the suit was decreed.