PREM VATI BHANDARI Vs. VED PARKASH

JUDGEMENT

(1.) THIS is a defendants' appeal. The facts giving rise to the present appeal, shortly stated, are as under : One Shiv Nand, father of Ved Parkash, plaintiff-respondent purchased house No. 264-R, Model Town, Jalandhar City, in the name of his wife Smt. Kamla Devi. It was alleged that the said house was purchased by his father from the Government with his own money and that Kamla Devi, his wife, had no funds of her own to buy the house and was only a bena-midar for the plaintiff. A number of circumstances were stated to exist which showed the transaction to be benami in nature.

(2.) KAMLA Devi sold the house on June 11, 1973, to Smt. Prem Wati Bhandari, defendant No. 2 (hereinafter referred to as the appellant) for Rs. 30,000. It was pleaded by the appellant that the plaintiff, Ved Parkash, had no locus standi to file the present suit and that the house was purchased by her after paying a consideration of Rs. 30,000 before the Sub-Registrar. A number of other pleas were also taken. The trial court, after framing the issues, decreed the suit and gave a declaration to the effect that Ved Parkash, plaintiff-respondent, is the sole owner in possession of house No. 264-R, Model Town, Jalandhar. Smt. Prem Vati Bhandari, the vendee from Kamla Devi, has come up in appeal to this court.

(3.) LEARNED counsel for the appellant has contended that, in view of the coming into force of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as "the Act"), the present appeal has to be allowed as Section 4 of this Act which prohibits the filing of a suit to recover the property held benami is retroactive in nature. For this proposition, he has relied upon the Supreme Court decision reported as Mithilesh Kumari v. Prem Behari Khare [1989] 177 ITR 97, 108 ; AIR 1989 SC 1247. In this case, while interpreting the Act and Section 4 of the Act, the apex court held as under (at p. 1254 of AIR 1989 SC) : "as defined in section. 2 (a) of the Act, 'benami transaction' means 'any transaction in which property is transferred to one person for a consideration paid or provided by any other person'. A transaction must, therefore, be benami irrespective of its date of duration. Section 3, subject to the exceptions, states that no person shall enter into any benami transaction. This section obviously cannot have retrospective operation. However, Section 4 clearly provides that no suit, claim or 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 shall lie, by or on behalf of a person claiming to be the real owner of such property. This naturally relates to past transactions as well. The expression 'any property held benami' is not limited to any particular time, date or duration. Once the property is found to have been held benami, no suit, claim or action to enforce any right in respect thereof shall lie. Similarly, Sub-section (2) of Section 4 nullifies the defences based on any right in respect of any property held benami whether against the person in whose name the property is held or against any other person in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. It means that once a property is found to have been held benami, the real owner is bereft of any defence against the person in whose name the property is held or any other person. In other words, in its sweep, Section 4 envisages past benami transactions also within its retroactivity. In this sense, the Act is both a penal and a disqualifying statute. In the case of a qualifying or disqualifying statute, it may be necessarily retroactive. For example, when a law of representation declares that all who have attained 18 years shall be eligible to vote, those who had attained 18 years in the past would be as much eligible as those who attained that age at the moment of the law coming into force. When an act is declaratory in nature, the presumption against retrospectivity is not applicable. Acts of this kind only declare. A statute in effect declaring the benami transactions to be unenforceable belongs to this type. The presumption against taking away vested right will not apply in this case inasmuch as under law it is the benamidar in whose name the property stands, and law only enabled the real owner to recover the property from him which right has now been ceased by the Act. In one sense, there was a right to recover or resist in the real owner against the benamidar. Ubi jus ibi remedium. Where there is a right, there is a remedy. Where the remedy is barred, the right is rendered unenforceable. In this sense, it is a disabling statute. All the. real owners are equally affected by the disability provision, irrespective of the time of creation of the right. A right is a legally protected interest. The real owner's right was hitherto protected and the Act has resulted in removal of that protection. When the law nullifies the defences available to the real owner in recovering the benami property from the benamidar, the law must apply irrespective of the time of the benami transactions. The expression 'shall lie' in Section 4 (1) and 'shall be allowed' in Section 4 (2) are prospective and shall apply to present (future stages) and future suits, claims or actions only. This leads us to the question whether there was a present suit between the plaintiff-respondent and the defendant-appellant on the date of the law coming into force. We have noted the dates of filing the suit and judgments of the courts below. On the date of Section 4 of the Act coming into force, that is, May 19, 1988, this appeal was pending and, of course, is still pending. Can the suit itself be said to be pending ?"