SHEOJI SHAW Vs. JAINATH SHAW

JUDGEMENT

(1.) - This revisional application is directed against an order of the learned Munsif 2nd Court, Serampore passed in Title Suit No. 182 of 1981 on 30.11.1988. The suit was for declaration of title on the assertion that the suit property was purchased in the Benam of the defendant by a registered sale deed dated 17 11.1978 and the property really belonged to the plaintiff. The plaint also prayed for permanent injunction against the defendant from interfering with the title and possession of the plaintiff in the disputed property. In that suit the present revisionist as defendant entered appearance and contended that the suit is not maintainable in view of section 4 of the Benami Transaction (Prohibition) Act, 1988 which prohibits the right to recover property held in benam by any suit or action. It also prohibits a party from taking up any defence of benam against the person in whose name the property stands.

(2.) The learned Munsif in the impugned order held that the instant Act is not retrospective and should be construed as prospective and also that the suit is maintainable. Being aggrieved by such order, the defendant has come up in revision.

(3.) Mr. Asoke Banerjee has been appointed to render assistance to the Court as Amicus Curiae. He has referred to the latest decision of the Supreme Court (Mithilesh Kumar vs. Prem Behari Khare) AIR 1989 SC 1247 and has taken me through the relevant parts of the decision where it has been held clearly that the Benami Transaction (Prohibition) Act, 1988 should be held to be retrospective in operation and apply not only to pending proceedings but also concluded proceedings and suits up to the apex court. It has also been stated in the said decision that section 4 of the Act would stand as a bar to the institution of a suit for enforcement of any right in respect of any property held benami against the person in whose name the properties is held and also taking up of any defence of benam against the person in whose name the properties held in any suit or proceeding. There are however several exceptions to this prohibition which have been incorporated in sub-section (3) of section 4. Our High Court has also held in the case of Urmila Bala Dasi vs Probodh Chandra Ghosh, 1989(1) CLJ 1 that all suits, claims or actions pending on the date of enforcement of section 4 of the Act are to be regulated by section 4 of the Act. In other words section 4 would stand as a bar either to institution of any suit for recovery of any property on the strength of assertion that the property is held by the defendant in benam and it also prohibits the taking up of a defence of benam in respect of any property for which the person in whose name the property is held, may sue him for relief.