GULAB BAI Vs. KAILASH PRASAD

JUDGEMENT

(1.) UNDER section 4 (2) any defence raised on the basis of a benami transaction is prohibited. The plaintiff is claiming the property to be his own, whereas as per the defence, the property was owned by Nathuram, father of the plaintiff and after his death, by the defendant/appellants exclusively by virtue of the will dated 23.9.1976 executed by Nathuram. There is no claim made or defence raised that the plaintiff is holding the property as a coparcener for the benefit of other coparceners and all the coparceners have right, title and interest in the suit property. A plain reading of section 4 (3) (a) of the Benami Transactions (Prohibition) Act shows that it has reference to the property of the coparcenary. A Hindu coparcenery is a much narrower body than a joint Hindu family. The concept of a joint Hindu family consisting a coparcenary is that of a common male ancestor with his lineal descendants in the male line within four degrees counting from and inclusive of such ancestor three degrees exclusive of the ancestor. No coparcenary can commence without a common male ancestor, though after his death it may consist of collaterals, such as brothers, uncles and nephews, cousins, etc. Thus, to be a coparcenary property, the property should either be purchased from joint or common fund of the coparcenary, or it should be inherited from a common ancestor, or it should be ancestral property, wherein · the parties have acquired right by birth. For application of sub -section 3 (a) of section 4 of the Benami Transactions (Prohibition) Act, a person in whose name the property is held should be coparcener in an undivided Hindu family and further that the property is to be held for the benefit of the coparceners of the family. If the property is acquired out of one's own funds by a person, then it will not be a coparcenary property but it will be an individual property.

(2.) IN the present cast?, the plaintiff has claimed the property to be his own, whereas the defendants case is that the property belonged to Nathuram and after his death the property belongs to them by virtue of the will executed by Nathuram. No case has been pleaded by the parties that the property is a coparcenary property. As the property has not been claimed by the parties as coparcenary property, the exception provided under sub -section (3) (a) to the main section 4 (2) has no application. The defence case is squarely covered under section 4 (2) of the Act. In Mithilesh Kumari v. Prem Behari Khare (AIR 1989 SC 1247) the Supreme Court has held that operation of section 4 is retroactive and shall apply to pending proceedings also. As the Act came into force during the pendency of this appeal, it prohibits raising of any defence on the basis of the benami nature of the transaction. The property, as it stands, was purchased by the respondent Kailash Prasad and the deed of transfer cannot be challenged on the ground that it is benami in his name. As a result thereof, the plaintiff's title to the suit house cannot be challenged on the ground of benami transaction by the appellants/defendants. In view of the aforesaid, it is not necessary for me to adjudicate the nature of the sale -deed executed in favour of the plaintiff. AIR 1989 SC 1247 followed. Appeal dismissed.