ivil Appeal No 2311 of 1978
From the Judgment and Order dated 2731978 of the Allahabad High Court in Second Appeal No 130 of 1975
Awadh Behari and NN Sharma for the Appellants
Yogeshwar Prasad and Mrs Rani Chhabra for the Respondent
The Judgment of the Court was delivered by KN SAIKIA J
This appeal by special leave is from the judgment and order dated 2731978 of the High Court of judicature at Allahabad Lucknow Bench in second appeal No 130 of 1975 dismissing the appeal and upholding the decree of the plaintiff respondent s suit
The plaintiff respondent Prem Behari Khare instituted suit No 42 of 197 1 in the court of Civil Judge Mohanlal Gun j Lucknow praying for the reliefs inter alia that he be declared to be the sole and real owner of the suit house and that the defendant appellant be permanently restrained from transferring the suit house
The learned Civil Judge Lucknow by his judgment dated 1331974 decreed the suit declaring the plaintiff to be the sole and real owner of the suit house and permanently restraining the defendant from transferring the suit house to any other person
On first appeal by the defendant appellant the learned Additional District Judge Lucknow by his judg 627 ment dated 23121974 dismissed the appeal agreeing with the findings of the trial court that it was the plaintiff re spondent who paid the consideration and purchased the suit house benami in the name of tile defendant appellant who therefore had no right to create any equitable mortgage or to transfer the suit house
The defendant appellant s second appeal thereafter was also dismissed by the High Court of Judicature at Allahabad by the impugned judgment dated 2731978
Hence this appeal by special leave
Mr AB Rohtagi learned counsel for the appellant submitS inter alia that the learned courts below erred in holding that the suit house was not gifted by the plaintiff to the defendant but was held benami in her name and that even if it was so held benami the subsequent legislation namely the Benami Transactions Prohibition Act 1988 has put a complete bar to the plaintiff s suit against the defendant in respect of the suit house
Mr Yogeshwar Prasad learned counsel for the respondent refutes submitting that the issues on gift and benami have been concluded by concurrent findings of fact of the learned courts below and that the plaintiff s right to the benami suit house having already become final it will not be affected by the subsequent Act
The first question therefore is whether or not to interfere with the concurrent findings of fact of the learned courts below
It has been said in a series of deci sions that ordinarily this court in an appeal will not interfere with a finding of fact which is not shown to be perverse or based on no evidence Babu vs Dy
Director AIR 1982 SC 756 but will interfere if material cir cumstances are ignored by the High Court
Prasad vs Govin daswaray  In Dhanjibhai vs State of Gujarat  it was observed that where a finding of fact has been rendered by a learned Single Judge of the High Court as a court of first instance and thereaf ter affirmed in appeal by an Appellate Bench of that High Court this Court should be reluctant to interfere with the finding unless there is very strong reason to do so
There is no reason why this should not apply to cases where the first appellate court was the district court
It was noted in Ganga Bishan vs Jay Narayan AIR 1986 SC 441 that ordinarily this Court under Article 136 of the Constitu tion would be averse to interfere with concurrent findings of fact recorded by the High Court and the Trial Court
But where there are material irregularities affecting the said findings or where the court feels that justice has failed and the findings are likely to result in unduly excessive hardship this court could not 628 decline to interfere merely on the ground that findings in question are findings on fact
So also in Uday Chand Dutt vs Saibal Sen AIR 1988 SC 367 it was said that in an appeal by special leave under Article 136 of the Constitu tion of India where there are concurrent findings of the courts below this court is not called upon to reconsider the entire evidence in detail to ascertain whether the findings are justified
In Ram Singh vs Ajay Chawla AIR 1988 SC 514 where the concurrent finding was that the appellants were in unauthorised occupation of premises of which the respondents were the owners this court did not interfere with the concurrent findings of fact
Mr Rohtagi lays emphasis on the facts namely that the plaintiff Prem Behari Khare s wife having died in 1955 leaving behind two sons aged about 2 and 3 years respective ly he faced great difficulties in managing the household looking after his sons and carrying on his duties as employ ee of the Allahabad Bank that under these circumstances he agreed to take in the defendant Mithilesh Kumari whose relation with her husband Ram Swarup was then estranged that the relation between the plaintiff and the defendant come to be such that she bore two children to him that there were efforts to legalise their de facto living as man and wife by obtaining defendant s divorce from her husband and in fact there was a decree for judicial separation in 1958 that the plaintiff had full confidence in and affec tion towards the defendant and that in the court he could give no reason why he purchased the house in the name of the defendant
Under those circumstances counsel submits the purchase of the suit house in the name of the defendant was made for Rs8000 out of which Rs2000 contributed by the defendant and the learned courts below ought therefore to have held the transaction of purchase in the name of defend ant to have been a genuine gift out of love and affection and not a benami purchase in her name
Perusing the judgment of the Trial Court we find that whether the transaction was a benami or it was a genuine gift by the plaintiff to the defendant were main issues on which parties led evidence
The averment that the defendant contributed Rs2000 towards purchase price was disbelieved by both the courts below
The plaintiff respondent proved from the statement of his Savings Bank account of Allahabad Bank Exts
6 7 and 8 that he withdrew Rs8250 on 8111962 and stated in witness box that he purchased the suit house in the name of the defendant by sale deed execut ed on 8111962 which was registered on 9111962
The plaintiff respondent has since been staying in the suit house
As the two were living as man and wife the 629 custody of the sale deed was not very material
We thus find that the concurrent findings are based on reasonable appre ciation of evidence on record and therefore can in no way be said to be perverse or unreasonable
Counsel criticises the observation of the High Court that the relation between the two was of a rather objectionable nature
We do not think that this observation was unwarranted or it had in any way prejudiced the defendant s case
The High Court has analysed the facts and correctly applied the tests to deter mine whether the transaction was benami or not discussing the case law
We do not find any justification in the appeal under Article 136 of the Constitution of India to interfere with the concurrent findings of fact
The next question is whether despite the decree in favour of the plaintiff respondent his suit or action will be affected by the subsequent legislation namely the Benami Transactions Prohibition Act 1988 and its prede cessor Ordinance
In other words whether the effectuation of the decree has been barred
For this it is relevant to note that the impugned High Court judgment was dated 2731978
The first appellate court s judgment was dated 23121974 the trial court judgment dated 1331974 and the suit was filed in 1971
The special leave to appeal was granted by this Court on 15111978
The Benami Transactions Prohibition of the Right to Recover Property Ordinance 1988 hereinafter referred to as the Ordinance  was pro mulgated on May 19 1988 to come into force at once
The Benami Transactions Prohibition Act 1988 Act No 45 of 1988 hereinafter referred to as the Act  received the asset of the President of India on September 5 1988
The provisions of Sections 3 5 and 8 of the Act came into force at once on that date and the remaining provisions were to be deemed to have come into force on 19th day of May 1988
It is an Act to prohibit benami transactions and the right to recover property held benami and matters connected therewith or incidental thereto
Mr Rohtagi submits that provisions of the Act cover past benami transactions also and that to hold so it would be permissible for this Court to refer to the 57th Report of the Law Commission of India wherein it was suggested that the legislation should not be applied to past transactions but the Parliament did not accept that suggestion and made the law applicable to past transactions also
Learned counsel for the respondent Submits that the provisions of the Act are prospective and not retrospective and as such would not affect the respondent s established right to the benami property
He has not controverted that this Court can refer to Law Commission s Report
630 To decide the controversy the relevant provisions of the Act may be referred to
As defined in section 2a of the Act Benami Transaction means any transaction in which property is transferred to one person for a consideration paid or provided by another person
As defined in section 2c of the Act property means property of any kind whether movable or immovable tangible or intangible and includes any right or interest in such property
There can therefore be no doubt that the transaction by which the suit house was transferred to the defendant appellant for Rs8000 paid or provided by the plaintiff respondent would be a benami transaction if this law is applicable to it
There is also no doubt that the suit house being a tangible immovable would be included within this definition of property 
Section 3 of the Act prohibits benami transactions by pro viding 1 No person shall enter into any benami transaction
2 Nothing in sub section 1 shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed unless the contrary is proved that the said property had been purchased for the benefit of the wife or the unmarried daughter
3 Whoever enters into any benami transaction shall be punishable with imprison ment for a term which may extend to three years or with fine or with both
4 Notwithstanding anything contained in the Code of Criminal Procedure 1973 2 of 1974 an offence under this section shall be non cognisable and bailable
 The appellant having not been wife or unmarried daughter of the respondent the exception in 2 will not be applica ble
Section 4 prohibits the right to recover property held benami by providing 1 No suit claim or action to enforce any right in resspect 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
631 2 No defence based on any right in respect of any property held benami whether against the person m whose name the property is held or against any other person shall be allowed in any suit claim or action by or on behalf of a person claiming to be the real owner of such property
 Having upheld the finding that the suit house has been held benami by the respondent in the name of the appellant the question is whether to this transaction the Act shall be applicable
The Act has not been made retrospective by any specific provision
Is it permissible to refer to the Law Commission s Report to ascertain the legislative intent behind the provision We are of the view that where a par ticular enactment or amendment is the result of recommenda tion of the Law Commission of India it may be permissible to refer to the relevant report as in this case
What impor tance can be given to it will depend on the facts and cir cumstances of each case
In Santa Singh vs State of Punjab 1977 1 SCR 229 Fazal Ali J in order to answer the question whether the non compliance with the provisions of section 2352 of the Criminal Procedure Code 1973 vitiated the sentence passed by the court considered it necessary to trace the historical background and social setting under which section 2352 was inserted for the first time in the 1973 Code and referred to the research done by the Law Commission which made several recommendations in its 48th Report for revolutionary changes in the provision
The Statement of Objects and Reasons were also referred to in that context
In the instance case we find that way back in 1972 the Government of India consid ered it necessary to request the Law Commission of India to examine the problem of benami held property with a view to determining whether benami transactions should be prohibit ed
The Law Commission accordingly submitted its 57th Report on benami transactions on 781973 after studying benami system as operating in India and in England
It also exam ined implications of the provisions of the Indian Trust Act 1882 and other statutory modifications of the Benami Law as contained in the Code of Civil Procedure the Transfer of Property Act the Indian Penal Code and the Income tax Act
It also suggested in its Report the following draft of proposed legislation 633 Recommendation In the light of the above discussion we recommend the enactment of a separate law containing the following legislative provisions 632 1 No suit 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 be institut ed in any court by or on behalf of a person claiming to be the real owner of such proper ty
2 In any suit no defence 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 shall be allowed in any court by or on behalf of a person claiming to be the real owner of such property
3 Nothing in this section shall apply a whether the person in whose name the property is held is a manager of or a co parcener in a Hindu undivided family and the property is held forhe benefit of the co parceners in the family or 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 towards whom he stands in such capacity On 19th May 1988 the President of India promulgated the Benami Transactions Prohibition of the Right to Recover Property Ordinance 1988 No 2 of 1988 to prohibit the right to recover property held benami and for matters con nected therewith and incidental thereto based on the sug gestion of the Law Commission of India made as far back as in 1973
With this Ordinance the judicial acceptance of benami transactions was being removed with a view to help people to keep property they were holding for others
It remedied the age old doctrine of benami and made a benamidar the real owner in law of course with few exceptions
The Ordinance was referred by the Government on July 22 1988 to the Law Commission of India requesting the latter to take up the question of benami transactions for detail examination and to give its considered views as early as possible so that a Bill to replace the Ordinance could be drafted on the basis of its recommendations and got passed before the close of the Monsoon Session of the Parliament
633 The 130th Report of the Law Commission was submitted to the Government on August 14 1988
The Benami Transactions Prohibition Bill 1988 drafted after getting the report was introduced in the Rajya Sabha on 31st August 1988 and the Bill was passed
The Law Commission devoted several pages to justify retrospective legislation and its view was that the legislation replacing the Ordinance should be retroactive in operation and that no locus penitentia need be given to the person who had entered in the benami trans actions in the past
It reported at para 318 as follows 318
Therefore viewed from either angle the Law Commission is of the firm opinion that the legislation replacing the ordinance should be retroactive in operation and that no locus penitentia need be given to the persons who had entered into benami transactions in the past
They had notice of one and a half dec ades to set their house in order
No more indulgence is called for
 However the court has to interpret the language used in the Act and when the language is clear and unambiguous it must
be given effect to
Law Commission s Reports may be referred to as external aid to construction of the provi sions
It may be noted that the Act is a piece of prohibito ry legislation and it prohibits benami transactions subject to stated exceptions and makes such transactions punishable and also prohibits the right to defences against recovery of benami transactions as defined in section 2a of the Act
The Parliament has jurisdiction to pass a declaratory legis lation
As a result of the provisions of the Act all proper ties held benami at the moment of the Act coming into force may be affected irrespective of their beginning duration and origin
This will be so even if the legislation is not retrospective but only retroactive
The learned counsel for the respondent rightly submits that the Act contains no specific provision making its operation retrospective
The Law Commission itself observed that democratic culture abhors ex post facto legislation and that it was necessary to curb unlawful nefarious uses of property
We read in Maxwell that it is a fundamental rule of English Law that no statute shall be construed to have retrOspective operation Unless such a construction appears very clearly at the time of the Act or arises by necessary and distinct implication
A retrospective operation is therefore not to be given to a statute so as to impair existing right 634 or obligation otherwise than as regards matter of procedure unless that effect cannot be avoided without doing violence to the language of the enactment
Before applying a statute retrospectively the Court has to be satisfied that the statute is in fact retrospective
The presumption against retrospective operation is strong in cases in which the statute if operated retrospectively would prejudicially affect vested rights or the illegality of the past transactions or impair contracts or impose new duty or attach new disability in respect of past transac tions or consideration already passed
However a statute is not properly called a retrospective statute because a part of the requisites for its action is drawn from a time an tecedent to its passing
We must look at the general scope and purview of the statute and at the remedy sought to be applied and consider what was the former State of Law and what the legislation contemplated
Every law that takes away or impairs rights vested agreeably to existing laws is retrospective and is generally unjust and may be oppres sive But laws made justly and for the benefit of individu als and the community as a whole as in this case may relate to a time antecedent to their commencement
The presumption against retrospectivity may in such cases be rebutted by necessary implications from the language em ployed in the statute
It cannot be said to be an invariable rule that a statute could not be retrospective unless so expressed in the very terms of the section which had to be construed
The question is whether on a proper construction the legislature may be said to have so expressed its inten tion
Craise on Statute Law 7th Ed writes that the general rule of law that statutes are not operated retrospectively may be departed from a by express enactment and b by necessary implication from the language employed and the author goes on to say If it is a necessary implication from the language employed that the legislature intend ed a particular section to have a retrospec tive operation the courts will give it such an operation
Baron Parke said Lord Hather ley in Pardo vs Bingham did not consider it an invariable rule that a statute could not be retrospective unless so expressed in the very terms of the section which had to be con strued and said that the question in each case was whether the legislature had suffi ciently expressed that intention
In fact we must look to the general scope and purview of the statute and at the remedy sought to be applied and consider what was the former state of the law what it was that the legis lature contemplated
 But a statute is not to be read retrospectively except of necessity 
In Main vs 635 Stark Lord Selborne said Their lordships of course do not say that there might not be something in the context of an Act of Parlia ment or to be collected from its language which might give towards prima facie prospec tive a larger operation but they ought not to receive a larger operation unless you find some reason for giving it 
In all cases it is desirable to ascertain the intention of the legislature He went on Words not requiring a retrospec tive operation so as to affect an existing statute preudicially ought not to be so construed but in Renold vs Att
for Novo Scotia it was held that this rule did not extend to protect from the effect of a repeal a privilege which did not amount to an accrued right
 pp 392 393 As defined in Section 2a of the Act benami transac tion 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 or 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 re spect 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 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 bena mi 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 case of a qualifying or disqualifying statute it may be necessarily retroactive
For example when a Law of Represen tation declares that all who have attained 18 years shall be eligible to vote those who attained 18 yearS in the past would be as much eligible as those who 636 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 benami dar
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 fight
A right is a legally protected interest
The real owner s fight 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 benam idar the law must apply irrespective of the time of the benami transactions
The expression shall lie in section 41 and shall be allowed in section 42 are prospective and shall apply to present future stages and future suits claims or actions only
This leads us to the question wheth er 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 the section 4 of the Act coming into force that is 19th May 1988 this appeal was pending and of course is still pending
Can the suit itself be said to be pending Lachmeshwar vs Keshwar Lal AIR 1941 FC 5 is an authority for holding that the hearing of appeal under the procedural law of India isin the nature of re hearing and therefore in moulding the relief to be granted in a case on appeal the appellate court is entitled to take into account even facts and events which have come into existence after the decree appealed against
Consequently the appellate court is competent to take into account legislative changes since the decision under appeal was given and its powers are not confined only to see whether the lower court s decision was correct according to the law as it stood at the time when its decision was given
Once the decree of the High Court has been appealed against the matter became sub judice again and thereafter this court had seisin of the whole case though for certain purposes eg execution the decree was regarded as final and the courts below retained jurisdiction in that regard
This was followed 637 in Shyabuddinsab vs The Gadag Betgeri Municipal Borough  where after the judgment of the High Court and after grant of special leave by this court the legislation was passed and it was applied by this Court
Their lordships referring to The King vs The General Com missioner of Income Tax and Mukharjee Official Receiver vs Ramratan Kaur 1935 LR 63 IA 47 rejected the contention that unless there are express words in the amending statute to the effect that the amendment shall apply to pending proceedings it cannot affect the proceedings
In Dayawati vs Inderjit  it has been held that the word suit  includes an appeal from the judgment in the suit
The only difference between a suit and an appeal is that an appeal only reviews and corrects and proceedings in a cause already constituted but does not create the cause
1n Mohanlal Jain vs His Highness Maharaja Shri Man Singh 1962 1 SCR 702 it was observed that A person is sued not only when the plaint is filed against him but is sued also when the suit remained pending against him
The word sued covers the entire proceeding in an action In Amerjit Kaur vs Pritam Singh it has been held that an appeal is a reheating and in moulding relief to be granted in a case on appeal the appellate court is entitled to take into account even facts and events which have come into existence after the passing of the decree appealed against
For the respondent it is submitted that right of the parties to a suit would be determined on the basis of rights available to them on the date of filing of the suit
Reli ance is placed on Nand Kishore Marwah vs Samundri Devi  That however was a case of eviction where the rights of the parties on the date of suit were material unlike in this case where subsequent legislation has nullified the defences of benami holders
That case is therefore distinguishable
Counsel for the respondent lastly submits that nobody should be allowed to suffer for fault of the court
As the maxim goes actus curiae neminem gravabit
Nobody should suffer for an act of the court
However the delay in dis posal of an appeal cannot be termed an action of the court
The consequence is that the plaintiff respondent s suit or action cannot be decreed under the law and hence the decree passed by the lower courts is annihiliated and the suit dismissed
In the result this appeal is allowed in the manner indicated above
Under the peculiar facts and circumstances of the case we make no order as to costs
NPV Appeal allowed


Summary:
The deceased and his brother PW 2 were sharing accom modation with PW 4 as a tenant on the 1st Floor of a house in Chandigarh
The father of the appellant also occupied two rooms on the same floor as a tenant
As a marriage was scheduled in the family of the appellant s father a request was made to PW 4 to permit the use of the kitchen for a few days
The possession of the kitchen was delivered on a clear understanding that it would be returned to PW 4 after the marriage
The possession of the kitchen was however not delivered to PW 4 and that led to the quarrel
The de ceased and his brother PW 2 had an heated argument with the appellant in regard to the return of the kitchen
PW 2 was alleged to have showered filthy abuses in the presence of the appellant s sister and taken out a pen knife from his pocket and also threatened to throw out the utensils and lock up the kitchen
The appellant got enraged went into the kitchen and returned with a knife with which he inflict ed one blow on the neck of PW 2 causing a bleeding injury and also inflicted three knife blows to the brother of PW 2 as a result whereof he collapsed on the floor and later died while on the way to the hospital
The appellant was convicted by the Sessions Judge under Section 302 Indian Penal Code and his conviction having been upheld by the High Court he preferred an appeal by special leave to this Court
It was contended for the appel lant that there was no previous iII will between the par ties on the contrary the relations were cordial and the appellant was not the one who had started the quarrel but he acted in the heat of passion during a sudden quarrel without any premeditation and hence Exception 4 to Section 300 IPC was applicable
On the other hand counsel for the State argued that the High Court had rightly held that the appellant had acted in a cruel and unusual manner and was not entitled to the benefit of the said Exception and that the three injuries inflicted showed that the appellant had acted in a cruel manner
942 Partly allowing the appeal this Court HELD To invoke Exception 4 to Section 300 IPC four requirements must be satisfied namely i it was a sudden fight ii there was no premeditation iii the act was done in a heat of passion and iv the assailant had not taken any undue advantage or acted in a cruel manner
The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault
The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger
945B D Where on a sudden quarrel a person in the heat of the moment picks up a weapon which is handy and causes injuries one of which proves fatal he would be entitled to the benefit of this Exception provided he has not acted cruelly
945D E In the instant case after PW 2 and his deceased brother entered the room of the appellant and uttered filthy abuses in the presence of the latter s sister tempers ran high and on PW 2 taking out a pen knife the appellant picked up the knife from the kitchen ran towards PW 2 and inflicted a simple injury on his neck
It would be reasona ble to infer that the deceased must have intervened on the side of his brother PW 2 and in the course of the scuffle he received injuries one of which proved fatal
Under these circumstances it is proper to convict the accused under Section 304 Part 1 IPC and direct him to suffer rigor ous imprisonment for 7 years
946C E