http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

PETITIONER: C.GANGACHARAN

       Vs.

RESPONDENT: C.  NARAYANAN

DATE OF JUDGMENT:       14/12/1999

BENCH: B.N.Kirpal, R.P.Sethi

JUDGMENT:

DER       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:

     "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 avidence is overwhelming in this case to the effect that money was sent by the plaintiff to the defendant in OS.  No. 345  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 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.   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.

     The  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

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.

     except  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 . 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 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.

     That  aparti 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.

     For  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.

     .  By 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  property. By  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.