LexNAND KISHORE MEHRA versus SUSHILA MEHRA
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- NAND KISHORE MEHRA v. SUSHILA MEHRA JULY 2, 1995 (KULDIP SINGH, N. VENKATACHALA ANDS. SAGHIR AHMAD,JJ.] Be11ami Transactio11s (Prohibitio11) Act, 1988: A B Sectio11s 3 & 4-l'rohibitio11 imposed i11 filing a suit or to take up a C defe11ce in respect of a be11ami tra11sactio11--:Whether applies to a be11ami tra11Saction or purchase of property by a perso11 in the name of his wife or unmanied daughter. The appellant-plaintiff had tiled the suit in the High Court seeking relief in respect of properties alleged to have been purchased benami in D the name of the defendant-his wife. The Single Judge rejected the applica- tion filed by the defendant in that suit seeking rejection of the plaint on the ground that the suit was barred under Section 4 of the Benami Transactions (Prohibition) Act, 1988. The said or-der was appealed against by the defendant-A Division Bench of the High Court reversed the order E of the Single Judge and granted the application of the defendant, made in the suit seeking rejection of the plaint. This order has been challenged by the appellant-plaintiff in this appeal. Allowing the appeal, this Court HELD: 1.1. Sub-section(!) of Section 3 of the Benami Transactions (Prohibition) Act, 1988 prohibits a person from entering into any benami transaction. Sub-section (3) of Section 3 makes a person who enters into F a benaml transaction liable for punishment. Section 5 makes properties held benami liable for acquisition without payment of any amount. But, when sub-section (2) of Section 3 permits a person to enter into a benami G transaction of purchase of property in the .name of his wife or unmarried daughter by declaring that the prohibition contained against a person in entering into a benami transaction in sub-section (1) of Section 3, does not apply to him, question of punishing the person concerned in the transac- tion under snb- section (3) thereof or the question of acquiring the proper- H 797 798 S!JPREME COURT REPORTS [1995J SUPP. I S.C.R. A ty concerned in the transaction under Section 5, can never arise, as otherwise the exemption granted under Section 3(2) would become redun- dant. What is said of the person and the property concerned in sub-section (2) of Section 3 in relation to non-applicability of Section 3(3) and Section 5 shall equally hold good for non-applicability of the provisions of sub-sec- B tions (1) and (2) of Section 4 in the matter of filing of the suit or taking up the defence for the self same reason. [802-G-H, 803-A-'l] 1.2. It cannot be said that a person permitted to purchase a property in the name of his wife or unmarried daughter under sub-section (2) of Section 3 notwithstanding the prohibition to enter into a benami transac· C tion contained in sub-section (1) of Section 3 cannot enforce his rights arising therefrom, for to hold so would amount to holding that the Statute which allows creation of rights by a benami transaction also prohibits the enforcement of such rights, a contradiction which can never be attributed to a Statute. If that be so, there can be no valid reason to deny to a person, D enforcement of his rights validly acquired even in the case of purchase of property in the name of his wife or unmarried daughter, by making applicable the prohibition contained in respect of filing of suits or taking up of defence imposed in respect of benami transactions in general by sub-sections (1) and (2) of Section 4 of the Act. But, it has to be made clear that when a suit is filed or defence is taken in respect of such benami E transaction involving purchase of property by any person in the name of his wife or unmarried daughter, he cannot succeed in such suit or defence unless he proves that the property although purchased in the name of his wife or unmarried daughter, the same had not been purchased for the benefit of either the wife or the unmarried daughter, as the case may be, F because of the statutory presumption contained in sub-section (2) of Section 3 that unless a contrary is proved that the purchase of property by the person in the name of his wife or his unmarried daughter, as the case may be, was for her benefit. [803-C-F] 1.3. In the instance case, since the plaintiff is the husband who had G the right to enter into a benami transaction in the matter of purchase of property in the name of his wife or unmarried daughter, he is entitled to enforce his rights in the properties conc
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