(1) SA. 268.1998 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 268 OF 1998 Maroti S/o Vithal Kale, aged 65 years, Occu.: Agri., R/o Sanwastar, Taluka Kopargaon, District - Ahmednagar .. Appellant VERSUS Laxmibai w/o Maroti Kale, Aged : 40 years, Occu.: Household, R/o Dhotra, Taluka : Kopargaon, District - Ahmednagar .. Respondent AND CIVIL APPLICATION NO. 3930 OF 1998 IN SECOND APPEAL NO. 268 OF 1998 Maroti S/o Vithal Kale .. Applicant VERSUS Laxmibai w/o Maroti Kale .. Respondent Mr. Rohit Sarvadnya, Advocate h/f. Mrs. Netrali N. Gangwal (Jain), Advocate for the appellant-applicant None present for the respondent though served CORAM : A.V. NIRGUDE, J. DATED : 15TH OCTOBER, 2009 ORAL ORDER:- 1] The respondent and her Advocate are absent though the matter is shown on the Board for final hearing today. Heard Shri Rohit Sarvadnya, Advocate h/f. Mrs. Netrali Gangwal, Advocate for the appellant. (2) SA. 268.1998 2] This appeal was admitted for deciding the following substantial question of law:- . Whether the learned 5th Additional District Judge, Aurangabad was right in holding that the transaction in question is hit by section 4(1) of the Benami Transaction (Prohibition) Act, 1988 by-passing the judgment of the Supreme Court in the case of R. Rajagopal Reddy Versus Padmini Chandrasekharan reported in 1995 (1) Mh.L.J. 544 and AIR 1996 S.C. 238. 3] The appellant is the original plaintiff. He sued the respondent-defendant for declaration and injunction claiming that the suit land was purchased by him, but was purchased in the name of the respondent, his wife. He asserted that since they were residing away from each other, the respondent was trying to sell the property taking undue advantage of the fact that the property stood in her name. The respondent defended the action saying that it was she who purchased the suit property from the funds she received from the maternal side. The trial Court dismissed the suit, holding that the appellant could not prove that it was he who purchased the property and that the respondent was only a benamidar. The trial Court even held that the appellant could not prove his possession. (3) SA. 268.1998 4] The first appeal Court however, reversed the finding of facts and held that the appellant had not only proved that he was the real owner of the suit property, but he has also proved his possession. However, the learned Judge of the first appeal Court, dismissed the suit holding that section 4(1) of Benami Transaction (Prohibition) Act, 1988 (henceforth be referred to as "The Benami Act") would make the suit not maintainable placing reliance on the judgment of the Supreme Court in the case of Om Prakash and anr. V. Jai Prakash reported in AIR 1992 S.C. 885. The question is whether the reliance on the above mentioned judgment was proper, to decide the question? The answer is in the negative. In order to facilitate the discussion, it is better to quote the relevant provisions of the Benami Act, which reads as under: "4. Prohibition of the right to recover property held benami (1) 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. (2) 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 suit, claim or action by or on behalf (4) SA. 268.1998 of a person claiming to be the real owner of such property. (3) Nothing in this section shall apply- (a) Where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners 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." . It is clear that the above mentioned provision specially sub-section (1) clearly prohibits the suit of this nature. This provision apparently is squarely applicable to the facts of this case but what is pertinent to note is that this suit was filed in 1982, long before the Benami Act came into force in 1988. When the act came into force, the first appeal was pending before the learned Additional District Judge, Aurangabad. The question before the learned Additional District Judge, was whether with the passing of the legislature, the suit would be maintainable; or hit by section 4(1)? At the time when the judgment was delivered by the learned Additional District Judge (on 27.3.1998) the confusion on this point which prevailed earlier was completely removed by the judgment of the Supreme (5) SA. 268.1998 Court in the case of R. Rajagopal Reddy (dead) by LRs. and others V. Padmini Chandrasekharan (dead) by LRs. reported in AIR 1996 S.C. 238. This judgment specifically held that sub section (1) of section (4) of the Act can-not apply to suit to enforce any right in property held by a benami against the person in whose name such property is held or any other person, if such proceedings is initiated prior to the coming into force of section 4(1) of the Benami Act. The Supreme Court had taken a different view earlier which is first expressed in the judgment in the case of Mithilesh Kumari V. Prem Behari Khare reported in AIR 1989 SC. 1247. In that case, two Hon'ble Judges of the Supreme Court constituting the Division Bench, took a view that the provisions of section (4) would apply retrospectively. Larger bench of the Supreme Court, then considered this view in the case of R. Rajagopal Reddy (dead) by LRs. (supra) and held that the Division Bench of the Supreme Court had erred in taking the view mentioned above. 5] Unfortunately, the judgment of the Supreme Court in the case of R. Rajagopal Reddy (supra) was probably not shown to the learned Additional District Judge, when he heard the appeal, else he would not have taken the view which he took for dismissing the suit. (6) SA. 268.1998 6] As said above, the findings on the question as whether the appellant had proved that it is he who purchased the property so it is who is the real owner of the suit property and that the respondent- defendant was his benami, has been held to be proved by the learned Judge of the first appeal Court. I have gone through the reasoning and found them quite cogent. I do not think I should interfere in them. The Second Appeal should therefore, succeed. In view of this, the appellant's suit should succeed. The suit stands decreed, as prayed for. The Second Appeal is allowed. 7] In view of the disposal of Second Appeal, Civil Application no. 3930 of 1998, seeking injunction also stands disposed of. Sd/- (A.V. NIRGUDE, J.) arp