OM PRAKASH AND ANR. versus JAI PRAKASH

Citation: [1992] 1 S.C.R. 15 · Decided: 09-01-1992 · Supreme Court of India · Bench: N.M. KASLIWAL · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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OM PRAKASH AND ANR. 
A 
v. 
JAi PRAKASH 
JANUARY 9, 1992 
[N. M. KASLIWAL AND B. P. JEEVAN REDDY, JJ.] 
B 
Benami Transaction (Prohibition) Act, 1988-Section 4 read with Ar-
ticle 136, Constitution of India, 1950-SLP pending before the Supreme 
Court, whether amounts to appeal pending-Suit based on benami transac-
tion instituted prior to the coming into force of the Act, whether barred. 
Benami Transaction (Prohibition) Act, 1988-Section 4-"Shall lie", 
"Shall allow" and "any property held benami"-Construction of 
c 
Code of Civil Procedure, 1908-0rder 6, Rules 1, 2, 7-Pleading-
Written statement-Question of applicability of section 49 of the U.P. Con-
solidation of Holdings Act not averred-Whether such plea can be taken later 
D 
on appeal. 
The defendant-appellant No. 1 and plaintiff-respondent were broth-
ers and defendant-appellant No. 2 was the wife of appellant No. 1. 
The appellant No. 1 was in Government service ever since 1953. 
E 
The plaintiff-respondent was loo~ing after the entire agricultural 
property in the village. 
Partition was effected during consolidation proceedings and en-
tered in the revenue records and chaks were carved out in accordance 
with the share of the parties in the consolidation proceedings. 
F 
During the consolidation operation, the plaintiff-respondent did 
not raise any dispute that he was owner of the entire property and the 
names of defendants-appellants were wrongly mentioned as benami. 
Later, the plaintiff-respondent filed a suit on the ground that the 
G 
suit-land was purchased by him alone through 4 sale deeds dated 
10.6.1968, 21.6.1968, 17.1.1976 and 23.6.1977, wherein the names of the 
defendants-appellants were included only as benamidar and he was the 
real owner of the land. 
The defe1'dants-appellants contended that they had paid their part H 
15 
16 
SUPREME COURT REPORTS 
[1992] 1 S. C.R. 
A 
of the sale consideration and the land was jointly purchased in the name 
of both the parties. 
The trial court dismissed the suit holding that the names of the 
defendants-appellants in the sale deeds were not mentioned as benami-
dars and that the plaintiff-respondent did not take any objection in the 
B 
consolidation proceedings. 
When the plaintiff-'i-espondent filed an appeal before the first ap-
pellate court, it reversed the judgment and decree of the trial court and 
decreed the suit iJ! favour of the plaintiff-respondent. 
C 
The second appeal filed by the defendants-appellants was dismissed 
by the High Court. The defendants filed a special leave petition before 
this Court on 15th March 1988. 
During the pendency of the special leave petition, the Benami 
Transactions (Prohibition of the Right to Recover Property) Ordinance, 
D 
1988 was promulgated on 19.5.1988. 
The Ordinance was replaced by the Benami Transactions (Prohibi-
tion) Act, 1988, which received the President's assent on 5.9.1988. 
The defendants filed an application on 1.5.1989 for allowing them 
E 
to take additional grounds made available on the basis of the aforesaid 
'Benami Act'. 
F 
Thereafter special leave was granted by order dated 21.8.1989 and 
the parties were given liberty to file additional documents, if any, within 
four weeks. 
The defendants-appellants contended that the suit filed by the 
plaintiff-respondent was not maintainable and barred under Section 49 
of the U.P. Consolidation of Holdings Act, 1954 as the point regarding 
the land in question being benami was never raised by the plaintiff-
respondent duripg consolidation proceedings and the chaks were allowed 
G 
to be recorded in the name of the defendant-appellants. 
The pJaiptiff-respondent contended that if the ratio of Mithilesh 
Kumari's case, JT. 1989(1) SC 275, was applied, it could be made 
available only in a case where appeal was pen~ing before the higher 
Court and that no advantage could be taken by the defendants-appel-
H 
lants, of Section 4 of the Benami Act, as no appeal was pending on the 
date when the Benami Act came into force. 
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OM PRAKASH v. JAi PRAKASH 
17 
On the question, whether any suit relating to benami transactions 
A · 
can be decreed after the coming into force of the Benami Act, this Court, 
allowing the appeal or the defendants, 
HELD : 1.01. In a suit for recovery of benami property if any 
appeal is pending on the date of coming into force of Section 4, the 
appellate court can take into account the subsequent legislative changes. B 
[20C] 
1.02. The I.aw Comm

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