Vs. C. Narayanan  INSC 423 (14 December 1999)
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
purchased properties in his own name and in the names of his other brothers in India. The appellant on 20th July, 1983
fi1ed.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 the respondent and the brothers
instead of purchasing the same in the name of the appellant.
On 31st 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:
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 avidence is overwhelming in this case to the effect that money
was sent by the plaintiff to the defendant in OS. No.
1983 for the specific purpose of purchasing 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.
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. 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.
appellant then- filed an execution application being E.P. .No. 30/88 before the
trial 'court. Before the said apoli cation was disposed of, on 19th May, 1988 the Benami Transactions
(Prohibition of the Right to Recover Property) Ordinance. 1986 was promulgated.
Basing on this Ordinance, objections were filed by the respondent to the effect
that the decree could not be executed inview of the provisions of the said
Ordinance. The executing 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. It is now well
settled that the executing court cannot go behind the decree of acourt of
competent jurisdiction or without Jurisdictiol.
when the decree is void ab 1nitio/ In the present case, the High Court on 27th
August, 1387, as is evident from the passage quoted hereinabove, had given a
categorical finding to the effect that the respondent herein was only a 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 .
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 Migh
Court in its judgment
of 27th August, 1987 that the . property was being held
in the name of the respondent as a ...trustee, the questici of t.he 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.
this Court in R. Rajagopal Reddy (Dead) by LRs and Others vs. 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 possession had. come to an end fay
virtue of the said Act.
the aforesaid reasons, the appeal is allowed and the judgment of the High Court
under appear dated 2nd August, 1988 is set aside, with costs throughout.
order dated 16th
September, 1391, the
respondent herein was directed to deposit Rs.10,000/~' in the trial court
towards annual mesns profits. When this deposit was not made, an application
was filed by the appellant for appointment of a Receiver in respect of the suit
order dated 3th
February, 1993, the
appellant him self was appointed as a Receiver and was' put in possession but
he was required to deposit Rs.10,000/- per year in the trial court. Inview of
the fact that the appe"1ant has now succeeded in this appeal, he is
entitled to retain the possession of the property as an absolute 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.