1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.370 OF 1991 Date of decision:23/2/2010 For approval and signature HON'BLE MR. JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G. PARALIKAR) Private Secretary agp/office/370­91sa 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.370 OF 1991 Habibkhan s/o Abdul RahmanKhan, age 45 years, Occu. Agriculture, r/o Waghe Babhulgaon, Taluka Kaij, Dist. Beed. ...APPELLANTS Orig.Plaintiffs. VERSUS 1. Shahajanbi w/o Habib Khan, Age 45 years, Occu.Agril. r/o. Waghebabulgaon, Tal.Kaij, District Beed, presently residing in front of Police Station, Kaij. (Deleted as per Ex.25 dated 18.7.1989) (2. Bhanudas s/o Dhondiba Morale, Age 40 years, occup.Agriculture, r/o. Dahiphalwadmauli Tal.Kaij.) DIED, per L.Rs. (Amendment as per Courts order dt.18.9.2009 in Civil Application No.7851 of 2009, LRs of deceased respondent no.2) 2(a) Yadav s/o Dhondiba Morale, Age 70 years, Occu.Nil, r/o Dahiphal (Wadmauli) Tq.Kaij, Dist. Beed. 3 3. Chandrakalabai w/o Bapurao Sirsat, Aged 30 years, occu.Agril. r/o Wadgaon, now at present Beed. ...RESPONDENTS (Orig.Defendants) ... Mr.Milind M.Patil, Beedkar, Adv., for appellant. Mr.R.K.Jadhavar, Adv., for respondent no.3. Mr. S.S.Thombre, Adv., for respondent no.2­a. ... CORAM: K.U. CHANDIWAL, J. DATE :23/2/2010 *** Date of reserving the judgment:18.2.2010 Date of pronouncing the judgment:23.2.2010 *** JUDGMENT: 1. The original plaintiff in RCS No. 123/1978, being aggrieved by dismissal of suit, preferred appeal before learned Additional District Judge, Beed, in RCA No.157/1987, and dismissal thereof dt.16.7.1991, has preferred this Second Appeal. 2. The parties are referred to their original status as plaintiff and defendants. Plaintiff canvassed, the suit field was purchased by him from his own funds in the name of his wife Shahajanbi for Rs.19,000/­ on 2.4.1974. It was a Benami sale deed. Shahajanbi had no right, title 4 over the suit property to dispose off the same. Shahajanbi eloped with one Hari Dhondiba, married to him on 2.6.1978. Thereafter, the plaintiff filed RCS No.123/1978, staking claim to be owner of the property. 3. Shahajanbi, declaring herself to be the owner, sold the same during pendency of proceedings to Bhanudas Morale on 31.12.1979 who sold 4 Acres of land out of it to Chandrakalabai Bapurao Shirsath on 27.2.1980. 4. On 20.8.1991, this Court, on hearing the learned Counsel, passed following order: " Admit. Notice on ground nos. 2, 3, 4, 5, 6 and 7 are substantial questions of law between the parties." Ground Nos. 2, 3, 4, 5, 6 and 7 are as under: "II) That, the Court below has mis­ construed the provisions of Section 4 of Benami Transactions (Prohibition) Act, 1988. III) That, the court below has not considered the effect of section 3(ii) of the Benami Transactions (Prohibition) Act, 1988 with respect to instant case wherein the property has been purchased for the benefit of the wife. (IV) That, it ought to have been seen that the prohibition with respect to the Benami Transaction shall not 5 apply in case of purchase of the property by any person in the name of his wife and which shall have to be presumed unless the contrary is proved that the said property has been purchased for the benefit of the wife. (V) That, the court below ought to have read the provisions of section 3(ii) and Section 4 of the Benami Transaction (Prohibition) Act, 1988, in harmony with each other and both the provisions cannot be read in isolation. (VI) That, the conclusion arrived at by the lower appellate Court that the transaction of purchase of property by the appellant in the name of his wife is hit by provisions of section 4(1) of the Act and therefore is prohibited from enforcing his right to recover the property is erroneous and based upon misconception of the law. (VII) That, the court below erred in holding that the suit field (filed) by the plaintiff to recover the possession is not maintainable at all in view of provisions of Benami Transactions (Prohibition) Act, 1988." 5. Mr.Patil, Counsel for the appellant/plaintiff submits, since plaintiff had paid entire consideration for purchase of the suit property in the name of his wife Shahajanbi and he being real owner, the provisions of Benami Transactions (Prohibition) Act, 1988, will not be applicable. The purchase was Benami in the name of his wife Shahajanbi. 6 6. The position of law is clarified by the Apex Court in the matter of R.Rajagopal Reddy Vs. Padmini Chandrasekharan ( AIR 1996 S.C. 238). The Apex Court overruled earlier judgment reported in AIR 1989 SC 1247 and held, " Section 4(1) of the above Act cannot be applied to a claim or action to enforce any right in the property held benami against person in whose name such property is held or any other person, if such proceedings initiated by or on behalf of a person claiming to be real owner thereof, prior to the coming into force Section 4(1) of the Act. " 7. Mr.Patil, Counsel, urged, the first appellate Court relied on stray evidence of wife about her independent earnings and investment by her alone. The sale deeds in favour of subsequent purchasers are hit by lis pendens as the vendor Shahajanbi had no title to pass on to the purchaser. The suit was already pending. The first appellate Court reversed the finding of facts which needs to be corrected. The first appellate Court did not consider Exh.34, compromise between plaintiff and his wife Shahajanbi wherein Shahajanbi accepted her husband's case. In order to stress his point, learned Counsel invited my attention to the matter of L.N.Aswathama and anr. V. P.Prakash ( 2009 AIR 7 SCW 5439). 8. The Counsel representing the subsequent purchaser stressed that the defendant is third purchaser, they are bona fide purchaser as there was already a mutation entry, the link of source of income of plaintiff is not established. The evidence of original owner Purushottam plays vital role in the matter. 9. Both the learned Counsel read evidence of Purushottam, referred to agreement of sale (Exh.77) dt.21.12.1973, evidence of Raju, a Bank witness, stating about purchase of draft dt. 1.3.1974, for Rs.18,000/­ by plaintiff, the evidence of Manik, who, allegedly, entered agreement of sale Exh.77. 10. On evaluating the evidence, I have no hesitation in observing that Exh.34, the so called compromise, is obtained by perpetrating fraud upon the Court, which is beyond the pleadings, Shahajanbi has virtually rebelled her pleadings to come to the assistance of the plaintiff. This exercise was obviously to cause sabotage and irreparable loss to the subsequent purchasers, to abridge and scuttle their rights accrued by them, by virtue of parting with the consideration and getting the sale deeds executed. 8 11. The first appellate Court, as the final Court of facts, having reversed the judgment of the trial Judge, has demonstrated its duty by independently considering entire evidence. It is difficult to digest, as canvassed by Mr.Patil that the learned first appellate Court could not have travelled in the realm of evidence to appreciate the same. 12. The learned first appellate Court was indeed abrasive when he dealt with the judgment of learned trial Judge by observing in paragraph 16, " ... ... The trial Judge from paragraph 25 of his judgment dealt with reasoning. The learned Judge quoted the argument advanced by the Counsels, appearing on behalf of plaintiff and defendants and lastly remarked that considering "evidence on record and documents I came to conclusion that plaintiff proved the said transaction is (in) respect of dispute land dated 2.5.1979 in the name of defendant no.1 is benami sale transaction. So also plaintiff proved that he is real purchaser of suit land and he is absolute owner of the suit land. " " There is absolutely no appreciation of evidence as such in the entire judgment. The judgment is summary of the case pleaded by both the sides as well as the arguments advanced by the trial Judge is that, he relied on the 9 case of the plaintiff and therefore decreed the suit, of the plaintiff. Such type of judgment having no appreciation of the evidence cannot be termed as Judicial Judgment. The learned Judge should have appreciated the evidence in its proper perspective and should have found out with judicial mind whether the transaction is benami one. The very approach of the trial Judge did not disclose that the trial Judge has applied his judicial mind on such and every issue. The trial Judge quoted the case pleaded by both the sides along with their arguments and lastly remarked that he relied on the case pleaded by plaintiff. The judgment is, therefore, a bunch of the case pleaded by both the sides and their arguments and nothing more. " 13. The plaintiff pleaded, prior to the sale deed in favour of Shahajanbi, he had entered into an agreement with Manik, brother of Purushottam, on 21.12.1973 (Exh.77) and paid Rs.1,000/­ as an earnest, it was followed with sale deed Exh.64 dt.2.4.1974. Manik was not an owner of the property. Purushottam, owner of property, has stepped in the witness box, stated that he has received sale consideration of Rs.19,000/­ from Shahajanbi. Had the purchase been by plaintiff, there could have been any semblance of his presence, even giving reference to the so called earlier agreement of sale dt.21.1.1973, Exh.77. The evidence of Purushottam DW6 has ruined the entire case pleaded by the plaintiff, including of the agreement of sale or of purchasing the 10 demand draft dt.1.3.1974, for Rs.18,000/­. The sale deed at Exh.64 and evidence of Purushottam, in unmistakable terms, illustrate entire sale consideration of Rs.19,000/­ was paid before the Sub Registrar having received from Shahajanbi. Thus, to repeat, there is nothing to adjust Rs. 1,000/­ to which is reference is given in Isar Pavti Exh.77 dt.21.12.1973. 14. The learned first appellate Court found, Habibkhan never disclosed about his business at Mumbai, as to how he could procure the amount, barring purchasing demand draft of State Bank of Hyderabad, Kalina branch, Mumbai, to Beed. No evidence was forthcoming as the demand draft was encashed on 1st March, 1974, while the transaction of sale is dt.2nd April, 1974. The learned Judge rightly found, there is no linkage evidence, either to the evidence of sale or to the purchase of the said demand draft of Rs. 18,000/­. 15. The first appellate Court also discussed, as to the circumstances how plaintiff could not have executed sale deed in favour of his first wife, as, Habibkhan had another wife Naimunnisa. Said Naimunnisa had two sons and two daughters while Shahajanbi was issue less on the date of the sale deed. In such situation, the learned first appellate Court rightly found, 11 there was no reason for Habibkhan to purchase the field in the name of Shahajanbi who did not remain beloved to him after Naimunnisa. 16. Shahajanbi established, her independent income, and divorce from plaintiff on 24th March, 1978. After the sale deed, Shahajanbi eloped with an employee Hari s/o Dhondiba Shinde to Barshi, married to him on 2nd June, 1978. It was as an aftermath to give jolt to her, the suit is filed by the plaintiff on July 10th, 1978 asserting that it was a Benami transaction of purchase in the name of Shahajanbi. The circumstances display, the brunt of Shahajanbi marrying the employee was looming large to occasion sabotage and abort the evidence of sale executed in favour of Shahajanbi. The defence that was raised by Shahajanbi is indeed established by Purushottam, the vendor. 17. The suit property has been subsequently purchased on 31.12.1979 by defendants Bhanudas and then 4 Acres to Chandrakalabai ( Exh.89). It was after making inquiry with the Talathi regarding title to the suit property. I have no hesitation to hold that the transactions of subsequent sales ( Exhs.89 and 96) are absolutely in terms of Section 41 of Transfer of Property Act as the purchasers have taken care to verify the title, verify actual possession and rights of 12 the vendors to execute the sale deed. 18. The evidence and its appreciation by the first appellate Court does not suffer from any illegality, there is no mis­construction of provisions of Section 4 of Benami Transactions (Prohibition) Act, 1988. The learned Judge, apart from interpreting the provisions, having analyzed the evidence, has independently held that the transaction of purchase by Shahajanbi was in her own rights with her own earnings, it could not be termed as a Benami transaction of her husband Habibkhan, the plaintiff. There was no prohibition for the wife even if she made earning from illegal business at Mumbai. The question is its appropriation was legal which she justifiably invested. The grounds, referred above, will not raise substantial questions to be addressed in favour of the appellant/plaintiff. Second Appeal lacks merit. It is dismissed. No costs. (K.U.CHANDIWAL) JUDGE ... agp/370­91sa