C. GANGACHARANversusC. NARAYANAN

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 ofjudgment 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.

          From the Judgment and Order dated 2.8.88 of the Kerala High Court in
    C.R.P. No. 1161of1988.


H
            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.                                              A
             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
       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.
                                                                                           G
             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
       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 was observed that the
     said Ordinance of 1988 prohibited the recovery of possession of the suit
     property which was being held by the respondent as a benami of the appellant
                                                                                      -
     herein.
B
            It is now well setted that the executing court cannot go behind the
     decree of a court of competent jurisdiction except when the decree is void ab
     initio or without jurisdiction. In the present case, the High Court on 27th
     August, 1987, as is evident from the passage quoted hereinabove, had given
     a categorical finding to the effect that the respondent herein was only a
c    trustee and the case was governed by Section 82 of the Indian Trusts Act.
     Section 4 which contains the prohibition to recover the property held benami
     expressly provides in sub-section (3), clause (b) that the said Section is not
     to apply, inter alia, in a case where the property is held in the name of a
    trustee. In view of the finding of the High Court in its judgment of 27th
    August, 1987 that the property was being held in the name of the respondent
D   as a trustee, the question of the respondent invoking the provisions of the
    Benami Transactions Ordinance or the Act did not arise. The provisions of
    the Act did not prohibit a suit being filed against a trustee for the recovery
    of the trust property.

           That apart, this Court in R. Rajagopal Reddy (Dead) by LRs and Ors.
E   v. Padmini Chandrasekharan (Dead) by LRs., [1995] 2 SCC 630, has held that
    the said Act and the Ordinance were not retrospective in operation and the
    Act did not apply to pending suits which had already been filed and entertained
    prior to the coming into force of Section 4 of the Act. This being so, the High
    Court in the present case fell in error in setting aside the decision of the
    executing court and in holding that the right of the appellant to recover
F   possession had come to an end by virtue of the said Act.

          For the aforesaid reasons, the appeal is allowed and the judgment of the
    High Court under appeal dated 2nd August, 1988 is set aside, with costs
    throughout.

G          By order dated 16th September, 1991, the respondent herin was directed
    to deposit Rs. I 0,000 in the trial court towards annual mesne profits. When
    this deposit was not made, an application was filed by the appellant for
    appointment of a Receiver in respect of the suit property. By order dated 8th
    February, 1993, the appellant himself was appointed as a Receiver and was
    put in possession but he was required to deposit Rs. I 0,000 per year in the      •.Ji>

H   trial court. In view of the fact that the appellant has now succeeded in this
                 C.GANGACHARANv.C.NARAYANAN                               335
appeal, he is entitled to retain the possession of the property as an absolute   A .
owner thereof and will be entitled to withdraw from the trial court the amount
deposited by him pursuant to the aforesaid order of this Court.

R.P.                                                         Appeal allowed.