MOHAMMAD ANWARUDDIN S Vs. SABINA SULTANA DR

JUDGEMENT

(1.) A common question relating to the validity and effect of the "Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as "the Act")," arises in all these matters. Two questions touching the Act are urged before us, viz, (i) that Parliament was not competent to make the said Act applicable to agricultural lands, and (ii) that the Act has no application to transactions anterior to it.

(2.) ON May 19, 1988, the President of India promulgated the "Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988". The Ordinance was promulgated to prohibit the right to recover property held benami and for matters connected therewith or incidental thereto. The Ordinance did not define the expression "benami". Sub-section (1) of section 2 of the Ordinance barred a suit, a claim, or an action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person by or on behalf of a person claiming to be the real owner of such property. Sub-section (2) of section 2 barred defences of a like nature. Sub-section (3) carved out two exceptions to the rule. The exceptions were (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; and (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity and the property is held for the benefit of another person for whom he is a trustee, or for whom he stands in such capacity. Section 3 declared that the said Ordinance shall not affect the provisions of section 53 of the Transfer of Property Act, or any law relating to transfers for an illegal purpose. Section 4 repealed section 82 of the Indian Trusts Act, 1882, section 66 of the Civil Procedure Code, 1908, and section 281A of the Income-tax Act, 1961.

(3.) SECTION 2 defines certain expressions occurring in the Act. Clause (a) defines "benami transaction" to mean "any transaction in which property is transferred to one person for a consideration paid or provided by another person". The expression "property" is defined in clause (c) to mean "property of any kind, whether movable or immovable, tangible or intangible, and includes any right or interest in such property".