BIBI HALIMA Vs. SITARAM MAHTON

JUDGEMENT

(1.) HEARD learned counsel for the appellants and learned counsel for the respondents.

(2.) IN this second appeal following substantial questions of law have been formulated by this court on 9.3.1990 for consideration, viz: (1) Whether section 4 of the Benami Transactions Act, 1988 applies in the suits in the light of the Supreme Court decision in A.I.R. 1989 S.C. 1247? (2) Whether sub -section 3(a) of section 4 of Benami Transaction Act applies only to Hindu Mitakshra Family and not to Hindu governed by Daya Bhag School & Muslims and Christians in which there is no concept of joint family?

(3.) THE learned trial court framed as many as seven issues including the issue as to whether the plaintiff was entitled to decree, as prayed for. On discussing the materials on record the learned trial court decreed contest. That matter came up for hearing before learned third Additional District Judge, Bhagalpur in Title Appeal no. 78 of 1982. The learned first appellate court did not go into the merits of the claims of the respective parties but considered the issue as to whether Title Suit no. 11 of 1978 was maintainable in view of section 4 of the Benami Transactions (Prohibition) Act, 1988 ("The Act", in short). It appears that the learned first appellate court has based the judgment and decree on the decision on this sole point. It appears from the judgment that the arguments on behalf of the appellants/respondents was accepted that the provision under section 4 of the Act was retrospective in effect, hence that provision of the Act would apply and, in that regard, the learned first appellate court relied upon a decision of Kerala High Court, A.I.R. 1989 Kerala, page 12 (Velayudhar Rama Krishnan and Ors. V/s. Rajeev & Ors.). The learned first appellate court also noticed that before that Act came into existence, an ordinance was promulgated and section 2 of the Ordinance was the same as section 4 of the Act. Following part of the judgment of the Kerala High Court was quoted by the learned lower court "The object of the Ordinance was to do away with what was felt to be an obnoxious system which had deleterious consequences on larger public interest. The provisions of the ordinance do not even remotely suggest a preservation of the earlier rights or a protection of past transactions. The court should lean more in favour of an interpretational process which would promote a laudable object; and eschew one which would sap its efficacy and leave it as a dead wood as it were. Therefore, the provision of the Ordinance act against, and affect past transactions as well."