SUPREME COURT OF INDIA

C.Gangacharan

Versus

C.Narayanan

Civil Appeal No. 1782 of 1989

(B.N. Kirpal and R.P. Sethi JJ)

14.12.1999

JUDGMENT

1. 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 properties in his own name and in the names of his other brothers in India. The appellant on 20.7.1983 filed OS No. 349 of 1983 for possession of the suit property or its market value. The case of the appellant was that the money which was sent 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.
2. On 31.7.1985, 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 27.8.1987, inter alia, holding as follows :

"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 OS No. 349 of 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 funds 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. In our view his is a case where Section 82 of the Indian Trusts Act squarely applied."

 

A Special leave petition filed by the respondent was dismissed by this Court on 7.4.1988.

3. The appellant them filed an execution application being EP No. 90 of 1988 before the trial Court. Before the said application was disposed of, on 19.5.1988 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 Court disallowed the objections and thereafter the respondent filed a revision petition before the High Court. By judgment dated 2.8.1988, 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.
4. It is now well settled that the executing court cannot go behind the decreed of a court of competent jurisdiction except when the decree is void ab intio or without or without jurisdiction. In the present case, the High Court on 27.8.1987, 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 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 27.8.1987 that the property was being held in the name of the respondent 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.
5. That apart, this Court in R. Rajagopal Reddy v. Padmini Chandrasekharan has held that the said 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 by virtue of the said Act.
6. For the aforesaid reason, the appeal is allowed and the judgment of the High Court under appeal dated 2.8.1988 is set aside, with costs throughout.
7. By order dated 16.9.1991, the respondent herein was directed to deposit Rs. 10,000 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 o the Suit property. By order dated 8.2.1993, the appellant himself was appointed as Receiver and was put in possession but he was required to deposit Rs. 10,000 per year in the trial court. In view of the fact that the appellant 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.