LexSAMITTRI DEVI AND ANR. versus SAMPURAN SINGH AND ANR.
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A B [2011) 2 S.C.R. 196 SAMITIRI DEVI AND ANR. V. SAMPURAN SINGH AND ANR. (Civil Appeal No. 846 of 2011) JANUARY 21, 2011 [DALVEER BHANDARI AND H. L. GOKHALE, JJ.] . Bena mi Transactions (Prohibition) Act 1988: s. 4 - Benami transaction ._ Suit filed prior to the Act coming into C force to recover the possession of benami property - Held: Would not be hit by the prohibition u/s.4 of the Act. Evidence Act, 1872: s. 114 - Presumption of service - In the instant case, notice sent under postal certificate from one 0 house to another house on the same road - Inference can be drawn u/s.114 that such notice must have been· duly served in the normal course of business within 5 days. Appellant no.1 purchased the suit house on 26.2.1985 for a consideration of Rs. 40,000. The sale deed E was, however, executed in the name of her son- defendant-appellant no.2 and his brother-in-law- respondent no. 2. It was the case of appellant no. 1 that appellant no.2 and respondent no. 2 sold half share of the suit house to respondent no.1 without her consent and F knowledge. The said transaction of sale was executed by a registered sale deed dated 13.4.1987 despite the fact that appellant no.1 had sent letter dated 8.4.1987 to respondent no.1 informing him that she was the real owner of the suit house. G Appellant no. 1 filed a suit for declaration that she was the real owner in possession of the suit house. She also prayed for a permanent injunction restraining the defendants from alienating any part of the suit house. By H 196 SAMITTRI DEVI AND ANR. v. SAMPURAN SINGH 197 AND ANR. amendment, she claimed an alternative relief for a decree A of Rs. 40,000 with interest. Appellant no. 2 admitted the claim of appellant no. 1, but respondent no. 2 disputed it and contended that half of the consideration of Rs. 40,000 has been paid by him. He denied that it was a Benami Transaction. Respondent no.1 contended in written B statement that even if it is proved to be a Benami Transaction, due to the recent legislation of Benami Transactions (Prohibition) Act 1988, appellant no.2 and respondent no.2 were the owners of the suit property, and that the alienation by respondent no. 2 of his share in the C property was effected legally. Appellant No. 1 had produced before the trial court a copy of the notice dated 8.4.1987 alongwith the certificate of posting which she had sent to defendant no. o 3, to state that she was the real owner of the suit h~use. The trial court held that the delivery of the notice was not proved, and therefore, respondent no.1 was a bonafide purchaser for valuable consideration. It also held that the prohibition under Section 4 of the Act to recover the E Benami property was applicable to suits, claims or action pending on tne date of commencement of the Act. Appellant no.1 had filed the suit on 30.9.1987. The Benami Transactions (Prohibition) Act 1988 came into force on 5.9.1988. Thus, this suit was pending on the date on F which the Act came into force and the appellant no longer retained the right to recover the property from the Benami holder. The suit was, therefore, dismissed for being barred by virtue of the provisions of the said Act. The first appellate court held that the suit was not G prohibited by the Act and respondent no .. 1 could not be held to be a bonafide purchaser without any notice of the rights of appellant no. 1 in the suit property. The first H 198 SUPREME COURT REPORTS [2011] 2 S.C.R. • A appellate court, therefore, decreed the suit to the effect that appellant no. 1 was the real owner in possession of the house and the sale deed dated 13.4.1987 was null and void. It also granted an injunction against the defendants that they shall not alienate any part of the suit house and B will not interfere in her possession of the suit house. The High Court did not give any importance to the notice dated 8.4.1987 being sent under postal certificate, but held that there was nothing on record to prove that c respondent no.1 had been served with that notice. The High Court, therefore, found fault with the finding of the first appellate court to the effect that respondent no. 1 was not a bonafide purchaser, and further held that, it amounted to misreading of evidence. The Regular 0 Second Appeal was therefore, allowed and the judgment and decree of the first appellate court was set aside. The appellants filed the instant appe
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