* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1056 OF 2002 WITH CROSS OBJECTIONS (ST) NO. 19639 OF 2004 1. Moinuddin s/o.Shukrulla 2. Smt.Minnatunnisa wd/o.Shukrulla 3. Kamruddin s/o.Shukrulla 4. Mohammed Haroon Shukrulla 5. Israr Ahmed Shukrulla 6. Abrar Ahmed Shukrulla since decd.thru legal heirs (a) Mantun nisa, wife of Shukrulla (b) Sadique Khatoon, widow of Abrar (c) Gulnar Tabassum, daughter, (d) Heena Parveen, minor daughter (e) Saima Parveen, minor daughter (f) Darukhshan Khatoon, minor daughter (g) Aisha Abrar Ahmed Shukrulla 7. Harinussa w/o.Abrar Ahmed ...........Appellants V/S. 1. Zahirullah s/o.Shukrulla Ansari 2. Municipal Corporation of Greater Bombay 3. Shri.Mohammed Sajid Mohammed .........Resps/Orig.Defds ----------- Mr. C.G.Gavnekar with Mr. Hiranandani, adv.for appellants. * 2 * Mr.R.V.Bansode, adv.for respondent no.1. Mr.P.S.Dani, adv.for respondent no.2. CORAM : SMT.R.P.SONDURBALDOTA, J. DATED : 2ND DECEMBER, 2009. P.C. :- 1. This is a common order on the appeal preferred against the judgment and decree dated 28th February, 2002 passed by the Bombay City Civil court dismissing Suit No.8750 of 1988 and the cross-objections filed by respondent no. 1. The suit as filed originally was by one Shukurulla against his son Zahirulla (respondent no.1), the Bombay Municipal Corporation and its Ward Officer. Later, the plaint was amended to delete the Bombay Municipal Corporation and the Ward Officer therefrom and to bring on record the present appellants as heirs and legal representatives of Shukurulla. 2. The case of the original plaintiff, Shukurulla was that prior to the year 1960 he had acquired tenancy in respect of suit premises i.e. S.P. Shed, Block No. 1-25-27, Mominpura (Block No.1), Bombay-400 011. from Bombay Municipal Corporation in the name of respondent no.1, who then was a minor. Since then, Shukrulla had been occupying the suit premises and regularly paying rent in respect thereof to the Corporation. He had set up business of power looms in the premises in the name of his daughter Harinussa (appellant no.7). The * 3 * business was carried on from the suit premises until July 1988, when he shifted the looms to Bhiwandi and kept the suit premises locked. Though the tenancy stood in the name of respondent no.1 he was never in possession thereof nor did he pay any rent therefor. Respondent no.1, in fact, since attainment of majority has been carrying out his independent business of Eating house from Bhiwandi. According to Shukurulla, as the acquisition of tenancy was by him and he had been in occupation of the demised premises since inception and paying rent therefor he is the lawful occupant of the suit premises and also “ ” entitled to the same. 3. The problems arose for Shukurulla when respondent no.1 started claiming right to the suit premises. On 1st November, 1988 respondent no.1 wrote a letter to the Ward Officer of Bombay Municipal Corporation and requested the Ward Officer not to accept rent for the suit premises from any person, other than him. This gave rise to an apprehension in the mind of Shukurulla, that respondent no.1 may take law into his hands and take forcible possession of the suit premises. He may also try to dispose off the suit premises by taking advantage of the rent receipts being in his name. 4. On the above pleadings, he filed the suit herein to seek the following reliefs : (a) “ That it may be declared by this Hon ble Court that the plaintiff is ’ the lawful occupant and is exclusively entitled to the right, title and interest * 4 * of the suit premises viz. Block No.25-27 (Block No.1) in the Chawl as S.P.Shed situate at Mominpura, Ground Floor, Bombay 400 011. (b) That the 1st defendant by himself, his servants, agents and all persons claiming under him be restrained by a permanent order and injunction of this Hon ble court from disturbing plaintiff s lawful possession ’ ’ of the suit premises or interfering in any manner his possession thereof and dealing with or disposing off the suit premises to any third party.” 5. Respondent no.1 in his written statement denied the entire case of Shukrulla. He claimed that as a minor he was capable of acquiring tenancy in his name. He also claimed that the business of power looms carried on in the suit premises was with his consent. He further contended that the suit filed by Shukrulla is barred in view of the provisions of Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as the Benami Act ). Respondent ‘ ’ no.1 has however admitted that he is carrying on his independent business at Bhiwandi. 6. By the time the suit came up for trial, Shukrulla had died and the present appellants had been brought on record. The appellants examined only one witness i.e. appellant no.1 to establish their case. Respondent no.1 did not adduce any oral or documentary evidence. The Bombay City Civil court after appreciating the evidence on record found that the appellants have proved that they have exclusive right, title and interest in the suit premises and that the * 5 * original plaintiff was lawful occupant thereof. It however held that the claim of the appellants for declaration of their right is barred under the provisions of the Benami Act and dismissed the suit. Therefore, the present appeal by the appellants. 7. Respondent no.1 has filed cross-objections only for the purpose of challenging the directions given in the impugned judgment to the Court Receiver appointed of the suit premises. During the pendency of the suit, Court Receiver, High Court Bombay was appointed Receiver of the suit premises and respondent no.1 was allowed to occupy the premises as his agent. After dismissal of the suit, the City Civil Court discharged the Receiver and directed him to hand over possession of the premises to the person from whom it was taken. As the Receiver had taken possession from Shukurullah, the Receiver will have to be give possession to the appellants. Hence, this direction is challenged by respondent no.1 by filing cross-objections. The interim arrangement in the suit was continued during the pendency of the appeal and pursuant to the order dated 8th October, 2004 respondent no.1 was appointed as agent of the Court Receiver on payment of royalty. He however in breach of the agency agreement transferred the suit premises in favour of respondent no.3. Therefore, the Receiver was directed to repossess the suit premises and seal the same. Since then, the suit premises are in possession of the Court Receiver. 8. In the above background of the case, the points that fall for consideration * 6 * of this court are two-fold. Firstly, whether the trial court was right in holding that the provisions of the Benami Act are applicable to the facts of the present case and secondly, whether directions given in the impugned judgment and order to the Receiver are appropriate. 9. The discussion as regards the applicability of the Benami Act is found at para-14 of the impugned judgment and order. The same reads as follows :- 14. “ On giving my careful consideration to the rival contentions, I am inclined to agree with Mr. Patil. Only transaction carried out in the name of the wife of unmarried daughter is exempted from the operation of the said Act. Transaction between father and son is not covered by the said Act. Admittedly, on the date of filing of the suit, the defendant was a major and taking the passage of time between the year in which the premises has been claimed to have been acquired and the date of filing of the suit into account, the defendant was a major. There is no reason for not applying the provisions of the said Act to the transaction in question. In my opinion, the suit will be clearly barred by Section 4 of the said Act. There is no escape for the plaintiffs to this conclusion.....” 10. Mr. Gavnekar, the learned counsel for the appellants, submits that the impugned judgment does not carry any discussion as regards the applicability of the Benami Act to the facts of the case. He argues that the provisions of the Benami Act would be attracted only in case of transaction of sale and not to any other kind of transfer of property. In the instant case, the transaction is of acquisition of right of tenancy as the original plaintiff Shukurulla had acquired tenancy in respect of the suit premises from respondent no.2-Corporation . * 7 * Such a transaction is beyond the purview of Section 4 of the Benami Act. In elaboration of his argument Mr. Gavnekar refers to the definition of the term Benami transaction at Section 2(a) of the Benami Act. “ ” 2. Definitions.- In this Act, unless the context otherwise requires,- (a) Benami transaction means any transaction in which property is “ ” transferred to one person for a consideration paid or provided by another person ; He submits that the transaction under the definition relates to transfer of property to one person for consideration paid by another. Therefore, the term Transfer of “ property assumes importance. This term is not defined in The Act. Therefore one ” needs to refer to the definition of the term in Transfer of Property Act which is the substantive law on transfer of immovable properties. The term defined therein at Section 5 reads as under : “ Transfer of property - ” In the following sections transfer of property “ ” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, [or to himself] and one or more other living persons; and to transfer property is to perform such Act. “ ” ” Mr. Gavnekar then focuses on the word conveys from the definition to argue that “ ” this word is used only in connection with transfer of ownership rights which consists of a bundle of various rights such as right of possession, right of enjoyment etc. and * 8 * and not for transfer of any lesser interest or right to enjoy the property. Mr. Gavnekar, then refers to the definition of sale (Section 54), Mortgage (Section 58), lease (Section 105), Exchange (Section 118) and Gift (Section 122) to reinforce his argument. He points out that mortgage of property is transfer of interest in an immovable property and lease is only transfer of a right to enjoy immovable property. The transfers of Gift and Exchange do not involve payment of consideration. Therefore, according to him the word conveys can be only with reference to transfer by sale. “ ” 11. The argument advanced by Mr. Gavnekar may sound attractive in the first flush. However, on deeper consideration the same is difficult to accept. No doubt in Section 5 of the Transfer of Property Act, the word transfer is defined with reference to the “ ” word conveys . The dictionary meaning of word convey is transfer the title to “ ” “ ” “ ” i.e. the transfer of an estate in the property. But then a question would arise whether The Transfer of Property Act contemplates such a restrictive meaning for the word conveys . The Apex Court in its decision in “ ” Krishnakumar Khemka V/s. Grindlays Bank P.L.C. reported in AIR 1991 S.C. page 899 had an occasion to consider Section 5 of the Transfer of Property Act. While dealing with a similar argument, the Apex Court has approvingly quoted a passage from Mulla Transfer of Property Act, 7th Edition, which reads as follows : . “ In Mulla Transfer of Property Act, 7th Edition, page 48, there is a passage in this respect which reads thus : * 9 * The word transfer is defined with reference to the word “ “ ” convey . This word in English Law in its narrower and more “ ” usual sense refers to the tranfer of an estate in hand; but it is sometimes used in a much wider sense to include any form of an assurance inter vivos. The definition in Section 205(1)(ii) of the Law of Property is Conveyance includes a mortgage, charge, lease, “ assent, vesting declaration, vesting instrument, disclaimer, release of every other assurance of property or interest therein by any instrument except a will . This is a special definition adopted for ” the purposes of the Law of Property Act, 1925. The word conveys in Section 5 of the Indian Act is obviously used in the “ ” wider sense referred to above. Transferor must have an interest in the property. He cannot severe himself from it and yet convey it” The Apex Court accepted the view of the author and proceeded on the basis that the word conveys used in Section 5 of the Transfer of Property Act is used in a wider “ ” sense to encompass all types of transfer not just of the title in the property but also of the subordinate rights of either some interest in the property or the right to enjoy the property etc. Therefore, the restriction sought to be put in the definition of Mr. Gavnekar is not correct. 12. The Transfer Of Property Act does not define the word property . But it can “ ” be seen that the word is used in its widest sense and as a comprehensive term to indicate every possible interest that the party can have. This becomes clear from Section 6 of the Transfer of Property Act which has a heading What may be “ * 10 * transferred . Section 6 states that property of any kind may be transferred, except, ” as otherwise provided by the Act or by any other law for the time being in force. After stating the general rule, it sets forth exceptions at clauses (a) to (i) to the section. Thus the meaning of property indicated therein is not by specifying it exhaustively or by way of inclusion but only by specifying what is to be excluded therefrom. This would mean that except for what has been specifically excluded, property of any kind is transferrable. A useful reference may be made here to the observations of Allahabad High Court in Bans Gopal Sheo Narain & Another V/S. P.K. Banerji and Ors. reported in A.I.R. (36) 1949 Allahabad page 433 [C.N.164], where it was required to decide the question whether a claim for damages on account of breach of contract is property in the insolvency proceedings, in the light of “ ” Section 6 of Transfer of Property Act. The observations made therein relevant for the present purposes are as follows : . The word property cannot be confined to the material object, “ “ ” it must include rights in and over that object. A person may have certain rights, e.g. Leasehold or mortgagee rights over the property of another. These jura in re aliena are also property “ ” of the person who owns them, though the material object is owned by another. Again, debts or actionable claims which are personal rights cannot be legitimately left out of the connotation of the word property . “ ” And . In other words, the whole complex of the mass of rights “ in rem * 11 * and in personam, less deductions, are a man s property . ’ “ ” It is thus seen that the definition of transfer of property at Section 5 of the “ ” Transfer of Property Act cannot come to the rescue of the appellant. In any case, as has been pointed out by the learned counsel for the respondents, one cannot ignore the definition of the term property in the Benami Act which is : “ ” property means property of any kind, whether movable or “ ” immovable, tangible or intangible, and includes any right or interest in such property.” . The definition expressly includes transfer of limited rights as well. 13. Further, the language of Section 4(1) of the Benami Act also makes it clear that the prohibition contained therein is not limited to the transaction of sale. The prohibition contained is in respect of any right in respect of any property as can “ ” ” be seen from the provision reproduced below : 4. Prohibition of 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 .” Hence, it must be held that the trial court was right in its finding on the question. Hence, the Appeal is dismissed. 14. As regards the Cross-Objections, the same are also required to be dismissed. Since undisputedly the Receiver had taken possession from * 12 * Shukurulla and he is bound in law to return the possession to the appellants as the heirs of Shukurulla, no fault can be found with this direction. [SMT. R.P. SONDURBALDOTA, J] * 13 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 4519 OF 2009 IN FIRST APPEAL NO. 1056 OF 2002 1. Moinuddin s/o.Shukrulla 2. Smt.Minnatunnisa wd/o.Shukrulla 3. Kamruddin s/o.Shukrulla 4. Mohammed Haroon Shukrulla 5. Israr Ahmed Shukrulla 6. Abrar Ahmed Shukrulla since decd.thru legal heirs (a) Mantun nisa, wife of Shukrulla (b) Sadique Khatoon, widow of Abrar (c) Gulnar Tabassum, daughter, (d) Heena Parveen, minor daughter (e) Saima Parveen, minor daughter (f) Darukhshan Khatoon, minor daughter (g) Aisha Abrar Ahmed Shukrulla 7. Harinussa w/o.Abrar Ahmed ...........Applicants. V/S. 1. Zahirullah s/o.Shukrulla Ansari 2. Municipal Corporation of Greater Bombay 3. Shri.Mohammed Sajid Mohammed .........Resps/Orig.Defds * 14 * ----------- Mr.C.G.Gavnekar with Mr.Hiranandani, adv.for applicants. Mr.R.V.Bansode, adv.for respondent no.1. Mr.P.S.Dani, adv.for respondent no.2. CORAM : SMT. R.P. SONDURBALDOTA, J. DATED : 2nd DECEMBER, 2009. P.C. :- 1. Heard learned counsel for both sides. 2. Perused the Civil Application. The Court Receiver has submitted his report stating that respondent no.1 is in arrears of royalty to the extent of Rs. 39,000/- for the period April 2007 to April 2008. Hence, the Civil Application is allowed in terms of prayer clause (a). Respondent no.1 is directed to deposit the amount of arrears with the Court Receiver within a period of 6 weeks from today. 3. As regards prayer clause (b), the same is not pressed by the applicants. 4. Prayer clause (c) also needs to be granted because applicants have been held to be in possession of the suit premises and entitled to occupy the same. Until respondent no.1 adopts due process of law to remove the applicants therefrom, they are entitled to occupy the same and also receive the amount of * 15 * royalty deposited with the Court Receiver. 5. The Civil Application is allowed in terms of prayer clause (a) and (c). The Court Receiver stands discharged. The Court Receiver shall recover the costs, charges and expenses from the amount lying to the suit account. After deduction of such amount, the balance amount to be paid over to the applicants. [SMT. R.P. SONDURBALDOTA, J]