MITHILESH KUMARI & ANR. versus PREM BEHARI KHARE

Citation: [1989] 1 S.C.R. 621 · Decided: 14-02-1989 · Supreme Court of India · Bench: G.L. OZA · Disposal: Appeal(s) allowed

Cited by 8 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

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MITHILESH KUMAR! & ANR. 
v. 
PREM BEHAR! KHARE 
FEBRUARY 14, 1989 
[G:L. OZA AND K.N. SAIKIA, JJ .. ] 
Benami Transactian· (Prohibition) Act, 1988: Sections 2(a),(c), 
3(2) and 4-Prohibition of right to recover property held benami-
Whether applicable to an appeal pending on the date of commencement 
of Act-Delay in disposal of appeal-Whether an action of court-
Maxim actus curiae gravabit nemenium-Applicability of. 
A 
B 
c 
~·-, 
Constitution of India, 1950: Art. 136--Supreme Court-When 
can interfere with concurrent findings of fact. 
Statutory Construction: Retrospective operation-Presumption 
against-When .arises-Act declaratory in nature-Whether operates D 
from time antecedent to enactment-Qualifying or disqualifying 
statute-Whether retroaciive-Remedy barred by Act-Whether 
corresponding right rendered unenforceable-Law Commission's 
'J 
Report-Whether can be referred as external aid to construction of pro-
visions of statute. 
Practice 
& 
Procedure: Decree passed by courts-Appeal 
pending-Appel/ate Court-Wheiher competent to take into account 
legislative changes subsequent to the decree in moulding the relief to be 
1 granted. 
E 
I 
-v-~ 
Words and Phrases: Ubi jus ibi remedium-Meaning of. 
F 
The respondent tiled a suit in the Court of Civil Judge, praying 
that he be declared the sole and real owner of the suit house and that the 
appellant be permanently restrained from transferring the suit house. 
The trial court decreed the suit accordingly. The appellant tiled an 
appeal before the Additional District Judge, who dismissed the same, G 
-:Jt-
agreeing with the findings of the trial court that the respondent had 
paid the price and purchased the house henami in the naine of the 
appellant and therefore, the appellant had no right to create an equit-
able mortgage or to transfer the suit house. The appellant's second 
appeal was· a.lso dismissed by the High Court. Hence, the appeal by 
special leave, by the appellant. During the pendency of the appeal, the . H 
621 
A 
B 
c 
D 
E 
F 
622 
SUPREME COURT REPORTS 
[1989] 1 S.C.R. 
Benami Transactions (Prohibition) Act, 1988 came into force. 
It was contended on behalf of the appellant that the respondent 
and the appellant had been living as man and wife and out of affection 
for the appellant, the respondent had purchased the suit house in the 
appellant's name for Rs.8,000, for wkich the appellant had contributed 
Rs,2,000 and, therefore, the courts below had erred in holding that lhe 
suit house was not gifted by the respondent to the appellant bnt was held 
benami in her name, and that even if it was so held benami, the subse-
quent legislation, namely, the Benami Transactions (Prohibition)' Act, 
1988 had put a complete bar to the respondent's suit against the appel-
lants in respect of the suit house. 
On behalf of the respondent, it was submitted that the issues on 
gift and benami have been concluded by concurrent findings of fact of 
the· courts below and that the respondent's right to the benami suit 
house having already become final it would not be affected by the subse-
quent Act. 
On the questions: (a) whether the concurrent findings of fact of 
the courts below should be interfered with or not, (b) whether despite 
the decree in favour of the respondent, the suit or action would be 
affected by the subsequent legislation, namely, the Benami Trans-
actions (Prohibition) Act, 1988 and its predecessor Ordinance, 
(c) whether, on a proper construction, the legislature may be said to 
have expressed its intention of retrospective applicability of the legisla-
tion, and (d) whether there was a suit present between the respondent 
and the appellant on the date of the law coming into force, 
Allowing the appeal, this Court, 
HELD: I. I A retrospective operation is not to be given to a sta-
tute, so as the impair existing right or obligation otherwise than as 
regards matter of procedure unless that effect cannot he avoided with-
out doing violence to the language of the enactment. The presumption 
"-.( . 
i 
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G 
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 
--j-
or attach new disability in respect of past transactions or consideration 
a_lready passed. However, a statute is not properly called a retrospective 
statute because a part of the requisites for its ac

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