C. GANGACHARAN versus C. NARAYANAN

Citation: [1999] SUPP. 5 S.C.R. 332 · Decided: 14-12-1999 · Supreme Court of India · Bench: B.N. KIRPAL, R.P. SETHI · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
C. GANGACHARAN 
v. 
C. NARAYANAN 
DECEMBER 14, 1999 
B 
{B.N. KIRPAL AND R.P. SETHI, JJ.] 
Indian Trust Act, 1882: 
S.4(3)(b), 82-Property held in the name of trustee-Plaintiff sending 
C money from abroad to dependent to purchase property in former 's name-
Defendant purchasing property in his own name-Suit by plaintiff for 
possession decreed-Execution-Meanwhile Benami Transactions 
(Prohibition of the Right to Recover Property) Ordinance, 1980 
promlflgated-Objection filed by judgment debtor that in view of provisions 
of Ordinance decree could not be executed, disallowed by executing court-
D High Court in revision held in favour of judgment debtor-Held, High Court 
erred in setting aside the decision of executing court-Executing court cannot 
go behind the decision of a court of competent jurisdiction except when the 
decree is void-ab-initio or without jurisdiction-In view of the finding that 
the property was held in the name of the defendant as a trustee, the question 
E of the defendant invoking the provisions of the Benami Transactions 
Ordinance or Act, did not arise-Provisions of the Act did not prohibit a suit 
being filed against a trustee for recovery of trust property-Besides Benami 
Transaction Act and the Ordinance were not retrospective in operation and 
did not apply to pending suit already filed and entertained prior to coming 
into force of s.4 of the Act-Benami Transactions (Prohibition of the Right 
F to Recover Property) Act, 1988-S.4. 
Rajagopal Reddy (Dead) by LRs and Ors. v. Padmini Chandrashekharan 
(Dead) by LRs., [1995) 2 SCC 630, relied on. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1782 of 
G 1989. 
H 
From the Judgment and Order dated 2.8.88 of the Kerala High Court in 
C.R.P. No. 1161of1988. 
T.L.V. Iyer and V.B. Saharya for Mis. Saharya & Co., for the Appellant. 
332 
-
... 
C.GANGACHARANv.C.NARAYANAN 
333 
E.M.S. Anam, for the Respondent. 
The following Order of the Court was delivered : 
There is more than one reason for allowing this appeal. It appears that 
the appellant had sent money from abroad to the respondent to enable him 
A 
to purchase immovable property in the name of the appellant. The respondent B 
purchased properties in his own name and in the names of his other brothers 
in India. The appellant on 20th July, 1983 filed O.S. No. 349/83 for possession 
of the suit property or its market value. The case of the appellant was that 
the money which was sent was wrongly utilised in purchasing the properties 
in the name of respondent and the brothers instead of purchasing the same C 
in the name of the appellant. 
On 3 lst July, 1985, suit for possession was decreed with costs and 
mesne profits were to be determined in execution proceedings. The respondent 
filed an appeal to the High Court which dismissed the same on 27th August, 
1987, inter alia, holding as follows: 
D 
"There is no evidence in this case to show that the plaintiff wanted 
to benefit the defendants when he provided funds for purchase of 
landed properties. On the other hand, the evidence is overwhelming 
in this case to the effect that money was sent by the plaintiff to the 
defendant in O.S. No. 349 of 1983 for the specific purpose of purchasing E 
landed properties in the name of the plaintiff, but, instead, he purchased 
the properties in the name of himself and his other brothers with the 
fund so provided by the plaintiff, Therefore it has to be held that the 
plaintiff is the beneficial owner and he is entitled to recover possession 
of the plaint schedule properties from the defendants in these suits. F 
In our view this is a case where S.82 of the Indian Trusts Act squarely 
applies." 
A special leave petition filed by the respondent was dismissed by this 
Court on 7th April, 1988. 
The appellant then filed an execution application being E.P. No. 90188 
before the trial court. Before the said application was disposed of, on 19th 
May, 1988 the Benami Transactions (Prohibition of the Right to Recover 
Property) Ordinance, 1988 was promulgated. Basing on this Ordinance, 
objections were filed by the respondent to the effect that the decree could 
G 
not be executed in view of the provisions of the said Ordinance. The executing H 
334 
SUPREME COURT REPORTS [1999] SUPP. 5 S.C.R. 
A court disallowed the objections and thereafter the respondent filed a revision 
petition before the High Court. By judgment dated 2nd August, 1988, the 
petition was allowed and in the impugned judgment it wa

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