NAND KISHORE MEHRAversusSUSHILA MEHRA

                           NAND KISHORE MEHRA                                      A
                                         v.
                               SUSHILA MEHRA

                                   JULY 2, 1995

          (KULDIP SINGH, N. VENKATACHALA ANDS. SAGHIR                              B
                             AHMAD,JJ.]

          Be11ami Transactio11s (Prohibitio11) Act, 1988:

           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
    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
                                                                                   D


    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
                                                                                   F
          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
    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-
    tions (1) and (2) of Section 4 in the matter of filing of the suit or taking
B
    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,
    because of the statutory presumption contained in sub-section (2) of
F
    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 concerned if he can succeed in showing
  that he had purchased them benami in the name of his wife. But in view
  of the statutory presumption incorporated in sub-section (2) of Section 3
H of the Act, he can get relief sought in the suit only if he can prove that the
        NANDKISHOREMEHRAv. SUSHILAMEHRA[VENKATACHALA.J.]                  799

properties concerned had not been purchased for the benefit of the wife, A
even if he succeeds in showing that the consideration for the purchases of
the properties had been 1iaid by him. [804-C-D]

      1.4. The order of the Division Bench of the High Court is set aside
and the order of the Single Judge rejecting the application of the defen-
dant-wife for rejection of the plaint is upheld and the matter is remitted       B
to Delhi High Court for disposal according to law and in the light of this
judgment. [804-E]

      R. Rajagopal Reddy v. P. Chandrasekharan, (1995) 1 SCALE 692 &
Mithilesh Kummi & Anr. v. Prem Behali Khare, [1989] 1 S.C.R. 621, referred
                                                                                 c
to.

        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6920 of
1994.

     From the .I udgment and Order dated 21.4.1994 of the Delhi High D
Court in F.A.0. (OS) No. 280 of 1993.

        Joseph Pookkat and R.A. Perumal for the Appellant.

        Kamal Kr. Bhatia for the Respondent.
                                                                                 E
        The Judgment of the Court was delivered by

      VENKATACHALA, J. Whether the prohibition to file a suit or to
take up a defence in respect of a benami transaction imposed by Section
4 of the Benami Transactions (Prohibition) Act, 1988 - 'the Act' applies to
a benami transaction of purchase of property by a person in the name of          F
his wife or unmarried daughter, is the question requiring our answer in
deciding this appeal by special leave filed by the plaintiff in a suit against
an order of the Division Bench of the High Court of Delhi allowing an
appeal filed by the defendant against an order in the suit made by a learned
single judge of the same court, refusing to reject the plaint under Order 7      G
Rule 11 of the Code of Civil Procedure, 190&-'the Code', as that barred
by Section 4 of the Act.

      A three judge Bench of this Court presided over by one of us (Kuldip
Singh, J.) which dealt with the prohibition to file a suit or to take up a
defence in respect of a benami transaction imposed by Section 4 of the Act H
    800                   SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A in the case of R. Rajagopal Reddy v. P. Chandrasekharan, reported in (1995)
    1 SCALE 692, has expressed its view that that prohibition imposed by sub-
    sections (1) and (2) of Section 4 applies only to suits to be filed or defences
    to be taken, in respect of property held benami, i.e., benami transactions,
    after the coming into force of the Act and not to those suits filed and
    defences taken in respect of such benami transactions and pending final
B
    decision as the time of coming into force of the Act as had been held
    earlier by a Division Bench of this Court in Mithilesh Kumari & Anr. v.
    Prem Behari Khare, [1989] 1 S.C.R. 621.

          Section 4 of the Act which imposes prohibition in the matter of filing
c   of suits or taking of defences in respect of property held benami 1.e.
    covered by benami i.e. covered by benami transactions reads, thus:

             "4. Prohibition of the right to recover propeity held benami.-{l) No
             suit, claim or action to enforce any right in respect of any property
             held benami against the person in whose name the property is held
D
                                                                                      -
             or against any other person shall lie by or on behalf of a person
             claiming to be the real owner of such property.

             (2) No defence based on any right in respect of any property held
             benami, whether against the person in whose name the property
E            is held or against any other person, shall be allowed in any suit,
             claim or action by or on behalf of a person claiming to be the real
             owner of such property.

             (3) Nothing in this section shall apply.-

F            (a) whether the person in whose name the property is held is a
             coparcener in a Hindu undivided family and the property is held
             for the benefit of the coparcencrs in the family; or

             (b) where the person in whose name the property is held is a
             trustee or. other person standing in a fiduciary capacity, and the
G            property is held for the benefit of another person for whom he is
             a trustee or towards whom he stands in such capacity."

           It was undisputed that a suit could be filed or a defence could be
     taken up in respect of properties held benami, i.e .. covered by benami
H    transactions if the properties are held by persons covered by clauses (a)
     NAND KISHORE MEHRA "· SUSHILA MEHRA (VENKATACHALA,.1.J           801

and (b) of sub-section (3) of Secli9n 4 since that sub-section makes the A
provisions by sub-sections (1) and (2) thereof inapplicable. But, the ques-
tion is, a property it held benami by a wife for her husband or by an
unmarried daughter for her father envisaged by sub-section (2) of Section
3 of the Act even though is not the property covered by clauses (a) or (b)
of sub-section (3) of Section 4 could it be that respecting which no suit can B
be filed or no defence can be taken under sub-sections (1) and (2) of
Section 4 of the Act. ll is true that the benami transaction as defined in
clause (a) of Section 2 of the Act since means - any transaction in which
property is transferred to one person for a consideration paid or provided
by another person, any purchase of property made by a person in the name C
of his wife or unmarried daughter envisaged in sub-section (2) of Section
3 of the Act, would be a "benami transaction". It is also true that the same
cannot be a benami transaction envis~ged by clauses (a) and (b) of sub-
section (3) of Section 4 of the Act falling outside the ourview of sub-sec-
tions (1) and (2) of Sections 4 thereof. But, what was argued before us by
Shri Barish ealve for the plaintiff-husband was, that the benami transaction D
by which a property is purchased by a person in the na1ne of his \vife or
unmarried daughter by reason of the provision in sub-seciion (2) of Section
3 of the Act not being a benami transaction into which such person could
not have entered under sub-section (1) of Section 3 it must be regarded as
that respecting which prohibition imposed by sub-sections (1) and (2) of E
Section 4 in the matter of filing of a suit thereto or taking up a defence
thereto would become inapplicable. It was also argued by him that sub-sec-
tions (1) and (2) of Section 5, if are inapplicable to benami transaction
covered by sub-section (2) of Section 3 of the Act, there could be no good
reason to make applicable the prohibition in sub-sections (1) and (2) of F
Section 4 to a transaction taken place before the coming into force of the
Act. On the other hand, it was vehemently argued for the defendant-wife
that non-applicability of sub-section (1) to the benami transactions covered
by sub-section (2) of Section 3 being intended merely to save the person
purchasing the property in the name of his wife or unmarried daughter G
from liability for punishment under sub-section (3) of Section 3 and ac-
quisition of such property under Section 5 of the Act by prescribed
authority without payment of any amount, the non-application of the
prohibition in Section 4, cannot be implied.

      Since the provisions in Sections 3 and 5 could be of assistance in a   H
    802                   SUPREME COURT REPORTS (1995) SUPP. 1 S.C.R.

A proper appreciation of Section of the said arguments of learned counsel,
    they arc excerpted:

            Section-3

            '3. Prohibition of be11ami transactions.---(1) No person shall enter
B           into any benami transaction.

            (2). Nothing in sub-section (1) shall apply to the purchase of
            property by any person in the name of hi' wife or unmarried
            daughter and it shall be presumed, unless the contrary is proved,
            that the said property had been purchased for the benefit of the
c           wife or the unmarried daughter.

            (3) Whoever enters into any benami transaction shall be punishable
            with imprisonment for a term which may extend to three years or
            with fine or with both.
D
            (4) Notwithstanding anything contained in the Code of Criminal
            Procedure, 1973 (2 of 1974), an offence under this section shall be
            non-cognizable and reliable.

            Section-5.
E
            5. Propeity held benami liable to acquisition.---(1). All properties
            held benami shall be subject to acquisition by such authority, in
            such manner and after following such procedure, as may be
            prescribed.

F           (2) For the removal of doubts, it is hereby declared that no amount
            shall be payable for the acquisition of any property under sub-sec-
            tion (1).'

          Sub-section (1) of Section 3, as seen, prohibits a person from enter-
G ing into any benami transaction. Sub-section (3) of Section 3, as seen,
  makes a person who enters into a benami 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 transaction of purchase of property in the
  name of his wife or unmarried daughter by declaring that the prohibition
H contained against a person in entering into a benami transaction in sub-
       NAND KJSHOREMEHRAv. SUSHILA MEHRA [VENKATACHALA. J.l              803

  section (1) of Section 3, does not apply to him, question of punishing the A
  person concerned in the transaction under sub-section (3) thereof or the
  question of acquiring the property concerned in the transaction under
  Section 5, can never arise, as otherwise the exemption granted under
  Section 3(2) would become redundant, what we have 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
                                                                                 B
  non-applicability of the provisions of sub-sections (1) and (2) of Section 4
  in the matter of filing of the suit or taking up the defence for the self same
  reason. Further, we find it difficult to hold 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 C
  a benami transaction 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 ever be
  attributed to a Statute. If that be so, there can be no valid reason to deny
  to a person, enforcement of his rights validly accrued even in the cast D
  acquired by 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 defences 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 E
  respect of such benami transaction involving purchase of property by any
  person in the name of his wife or unmarrie,d daughter, he cannot succeed
· in such suit or defence unless he proves that the property although pur-
  chased 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, because of the statutory presumption con- F
  tained 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.

       Therefore, our answer to the question under consideration is that
 neither the filing of a suit nor taking of a defence in respect of either the G
 present or past benami transaction involving the purchase of property by_
 a person in the name of his wife or unmarried daughter is prohibited under
 sub-sections (1) ad (2) of Section 4 of the Act.

       Coming to the facts of the ca'e on hand, the plaintiff had filed the H
    804                    SUPREME COURT REPORTS (1995] SUPP. I S.C.R.

A sit in the High Court seeking relief in respect of properties alleged to have
    been purchased benami in the name of the defendant-his wife. A learned
    Single Judge rejected the application 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 Act. The order of rejection of that application was
    appealed against by the defendant in a First Appeal filed in the same court.
B   A Division Bench of the High Court reversed the order of the learned
    Single judge and granted the application of the defendant made in the suit
    seeking rejection of the plaint. It is that order which is now questioned by
    the plaintiff-husband in this appeal. Since the plaintiff is the husband who
    had the right to enter into a benami transaction in the matter of purchase
c   of property in the name of his wife or unmarried daughter, as we have held
    earlier, he is entitled to enforce his rights in the properties concerned if he
    can succeed in showing that he had purchased than benami in the natne of
    his wife. But in view of the statutory presumption incorporated in S\lb-sec-
    tion (2) of Section 3 of the Act, he can get relief sought in the suit only if
D   he can prove that the properties concerned had not been purchased for
    the benefit of the wife, even if he succeed in showing that the consideration
    for the purchases of the properties had been paid by him.

            In the result, we allow this appeal, set aside the order of the Division
     Bench of the High Court, uphold the order of the learned. Single Judge
E    rejecting the application of the defendant-wife for rejection of the plaint,
     and remit the suit to Delhi High Court for disposal according to law and
     in the light of this judgment.

     G.N.                                                         Appeal allowed.