Holding

The Benami Transactions (Prohibition) Act, 1988 is prospective; Section 4(2) does not bar a benami defence in suits filed before its commencement, and the High Court was not justified in overturning the lower courts' concurrent findings of fact.

Summary

The father purchased a house in 1970 in the name of his minor daughter and later the daughter filed a suit in 1984 for declaration of title and possession. The father pleaded that the purchase was a benami transaction and that he was the real owner, a defence taken in his written statement before the Benami Transactions (Prohibition) Act, 1988 came into force. The trial court and the first appellate court upheld the father's claim and dismissed the suit, but the High Court on second appeal reversed those findings and decreed in favour of the daughter. The Supreme Court examined whether Section 4(2) of the Act, which bars a benami defence, applies retrospectively to suits filed before the Act, and held that the Act is prospective and does not bar the defence in this case. It also clarified that the presumption under Section 3(2) that a purchase in the name of an unmarried daughter is for her benefit is rebuttable by evidence, which the father successfully did. Further, the Court ruled that a High Court cannot disturb concurrent findings of fact of lower courts in a second appeal absent a perverse or unreasonable basis. Consequently, the appeal was allowed, the High Court judgment set aside, and the suit dismissed.

Issues considered

The applicability and retrospective effect of Section 4(2) of the Benami Transactions (Prohibition) Act, 1988 to a defence raised in a suit filed before the Act came into force.
Whether the Benami Transactions (Prohibition) Act, 1988 is prospective or retrospective in operation.
Whether the presumption under Section 3(2) of the Act that a purchase in the name of an unmarried daughter is for her benefit can be rebutted.
Whether a High Court in a second appeal can interfere with concurrent findings of fact of the trial and appellate courts under Order 100 of the Code of Civil Procedure.

Legislation cited

Benami Transactions (Prohibition) Act, 1988s. 2(a), s. 3(1), s. 3(2), s. 4(1), s. 4(2)
Code of Civil Procedure, 1908s. 100

Subjects

benami transactionretrospective legislationSection 4(2)presumption under Section 3(2)concurrent findings of factsecond appealCode of Civil Procedure Order 100property ownership

Judgment

G. MAHALINGAPPA A
v.
G.M. SA VITHA

AUGUST 9, 2005

[D.M. DHARMADHIKARI AND TARUN CHATTERJEE, JJ.] B
Benami Transactions (Prohibition) Act, 1988: Section 4(2).

Benami transaction-Nature of-Father purchased suit property in the
name of his minor daughter-Subsequently daughter filed a suit before
coming into force of the Act for declaration of title to, and recovery of c
possession of the suit proper~Father, in his written statement, took the
plea of benami and claimed that he was, the real owner of the suit property--
Held: The suit and the written statement were filed long before the Act came
into force-Hence, the father was entitled to raise the plea of benami and
to prove that he was the real owner of the suit property-In such a case S. D
4(2) was not applicable.

Benami transaction-Plea ofdefence-Nature of-Whether prospective
or retrospective Held: The Act was prospective in nature and it had no
relrospective operation except in certain cases-However, Section 4(2) is
retrospective to the extent that after its con1n1encen1ent no defence based on E
the plea of benami in respect of a past benami transaction is permissible.

Section 3(2)-Benami transaction-Presumption under-Purchase of
property in the name of wife or unmarried daughter for their benefit-Held:
Is rebut/able by production of evidence or other materials.
F
Code of Civil Procedure, 1908:

Section I OU-Second appeal-Concurrent findings offact-Interference
with-Power of High Court-Held: Concurrent findings rendered on
consideration of the pleadings and on oral and documentary evidence on G
record which were neither perverse nor without any reason nor suffering
from non-consideration of any important evidence or admission of some of
the parties, then interference therewith by High Court, in second appeal, not
justified

The appellant-father purchased the suit property in the name of his H
487
488 SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A daughter-respondent when she was a minor. Subsequently, the respondent
filed ~ suit for declaration of title to, and recovery of posse!;sion of, the
suit property. The appellant in his written statement took the plea that
the suit property was purchased benami in the name of the respondent
and claimed himself to be the real owner of the suit property. During the
pendency of the suit the Benami Transactions (Prohibition) Act, 1988
B
came into force:

The trial court as well as the first appellate court decreed the suit
on the concurrent findings of fact that the appellant was the real owner
of the suit property and that the respondent was only a benamidar of the
C appellant.

However, the High Court in second appeal decreed the suit on the
ground that the appellant had purchased the suit property for the benefit
of the respondent. Hence the appeal.

D The following question arose before the Court:

Whether under Section 4(2) of the Benami Transactions (Prohibition)
Act, 1988, defence can be allowed to be raised on any right in respect of
any property held benami, whether against the person in whose name the
property is held or against any other person, in any suit, claim or action
E or on behalf of a person claiming to be the real owner of such property?

Allowing the appeal, the Court

HELD: I. This Court in Raiagopal Reddy 's case held that the Bena mi
Transactions (Prohibition) Act, 1988 was prospective in nature and it has
F no retrospective operation except in respect of some cases :.e. after Section
4(1) of the Act applied no suit can lie in respect to such a past benami
transaction. Therefore, it must be held that similar is the position in law
on the question of retrospectivity of Section 4(2) of the Act.
1496-G-.f{; 498-B-C)

G R.Rajagopal Reddy v. Padmini Chandrasekharan, 11995) 2 SCC 630,
Prabodh Chandra Ghosh v. Urmila Dassi, AIR (2000) SC 2534 and C.
Gangacharan v. C.Narayanan, AIR (2000) SC 589, followed.

Mithilesh Kumari v. Prem Behari Khare, 11989) 2 SCC 95, referred
H to.
G. MAHALINGAPPA v. G.M. SAVITHA 489

2. In the instant case, the suit was filed long before the coming into A
force of the Act. It is an admitted position that the written statement in
the suit taking the plea of benami was also filed by the appellant long
before the Act had come into force. Therefore, it was not a case where
Section 4(2) of the Act will have a limited operation in the pending suit
after Section 4(2) of the Act had come into operation. It is true that the
judgment of the trial court was delivered after the Act had come into
B
force but that could not fetter the right of the appellant to take the plea
of benami in his defence. Therefore, the appellant was entitled to raise
the plea of benami in the written statement and to show and prove that
he was the real owner of the suit property and that the respondent was
only his benamidar. [498-G-H; 499-A-B] C
3. Section 3(2) of the Act makes it abundantly clear that if a property
is purchased in the name of an unmarried daughter for her benefit, that
would only be a presumption but the said presumption can be rebutted
by the person who is alleging to be the real owner of the property by
production of evidences or other materials before the Court. In this case, D
the trial court as well as the appellate court concurrently found that
although the suit property was purchased in the name of the respondent
but the same was purchased for the interest of the appellant. Even if the
presumption under Section 3(2) of the Act arose because of purchase of
the suit property by the father (in this case appellant) in the name of his E
daughter (in this case respondent), that presumption got rebutted as the
appellant had successfully succeeded by prod.uction of cogent evidence to
prove that the suit property was purchased in the benami of the respondent
for his own benefit. [499-E-G]

4. In the instant case, the concurrent findings of fact arrived at by F
the appellate court as well as the trial cour' were not either perverse or
without any reason or based on non-consideration of important piece of
~ evidence or admission of some of the parties. Therefore, the High Court
was not justified in interfering with the concurrent findings of fact arrived
at by the appellate court as well as the trial court which findings were G
rendered on consideration of the pleadings as well as the material (oral
and documentary) evidence on record. [500-G-H; 501-A]

Deva v. Sajjan Kumar, [2003] 7 SCC 481, Sayeda Akhtar v. Abdul
Ahad, [2003] 7 SCC 52 and Saraswathi v. S. Ganapathy, [2044] 4 SCC 694,
relied on. H
490 SUPREME COURT REPORTS (2005] SUPP. 2 S.C.R.

A CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2867 of2000.

From the Judgment and Order dated 27.11.1997 of the Kamataka High
Court in R.S.A. No. 315 of 1990.

G.V. Chandrasekhar and P.P. Singh for the Appellant.
B
N.D.B. Raju, Guntur Prabhakar and Ms. Bharathi for the Respondent.

The Judgment of the Court was delivered by

TARUN CHATTERJEE, J. : This is an unfortunate litigation between
c a father and his married daughter on the right of ownership of a house
measuring about 40 feet by 30 feet in Khata No. 54 of Garehatty Village in
Chitradurga Taluk in the State of Kamataka (hereinafter referred to as the
"suit property").

The appellant, who suffered defeat in second appeal before the High
D Court at Bangalore (Kamataka), filed a Special Leave Petition which on
admission got registered as a regular appeal beirig Civil Appeal No. 2867/
2000 in this Court.

The appellant is the father of the respondent. The suit property was
purchased by the appellant in the name of the respondent by a registered sale
E
deed dated 24th of August, 1970 when the respondent was a minor of seven
years of age. Subsequent!y, her marriage was settled and at that point of time
she was assured that the respondent shall not be disturbed as she was given
to understand that the suit property was her own property. She was married
to one Shri C.Thippeswamy on 4th of December, 1980. Relationship between
F the appellant and the respondent was cordial till 8th of October, 1983, and
only thereafter relationship became strained. At that stage she asked for
vacation of the suit property not only from the appellant· and his family but
also from the tenants who were defendants 2 to 5 in the suit and for payment
of rent to her. The appellant and the tenants had, however, refused to vacate
their respective portions of the suit property in their possession or to pay rent
G to her. Accordingly, the respondent was constrained to file the suit for
declaration of title and recovery of possession in respect of the suit property
on the averment that since the suit property stood in her name, and the same
was purchased for the benefit of the respondent and as a security for her
marriage she was entitled to a decree for declaration and possession. The suit
H was however filed on 5th of July, 1984.
G. MAHALINGAPPA v. G.M. SAVITHA [CHATTERJEE, J.] 491

The appellant resisted the claim of the respondent on various grounds A
by filing a written statement. According to the appellant, the suit property
was purchased by his own funds in the benami of her daughter. He also
denied the allegation that the suit property was purchased for and on behalf
of the respondent under the sale deed dated 24th August, 1970 nor it was
purchased as a security for her marriage. According to him, the respondent
B
was born on 5th November, 1963 and immediately after the birth an
astrologer was contacted from whom the appellant ascertained that she was
born on an auspicious nakshatra and immediately thereafter he made up his
mind to purchase a site with a view to construct a house for his residence.
Accordingly, he purchased the suit property for a sum of Rs. 500. It was not
the intention of the appellant to create any benefit, any right in the suit c
property to the respondent. However, in the year 1984, the suit property was
bequeathed by a Will in favour of the respondent and two sons. After the
suit property was purchased in the benami of the respondent, he made
improvement of the suit property and in doing so he mortgaged the suit
property in favour of one Srinivasa Setty and obtained a loan of Rs. 3,000 D
on 15th September, 1972. Thereafter, he purchased another site adjacent to
the suit property under a sale deed dated 23rd May, 1972. That sale deed was
also obtained in the name of the respondent out of love and affection. At that
time the respondent was about nine years old. The rest of the mortgaged
amount was utilized for construction of the back portions of the house after
spending his own money. After improving the same he constructed four E
portions which were in occupation of the tenants, and he himself discharged
the mortgaged loan and other loans incurred for construction of the suit
property. He also obtained permission of the Deputy Commissioner for
alienation of the suit property for non-agricultural purposes. He paid taxes
levied by the Revenue Authorities in respect of construction of the house. F
He also paid alienation charges and Kandayam of the suit property from time
to time. Accordingly, the appellant sought for dismissal of the suit inter alia
on the ground that he was the real owner and in possession of the suit property
and the respondent was merely a benamidar in respect of the same. Parties
went into trial with the following issues:
G
I) Does the plaintiff prove that she is the owner of the suit
property?

2) Is she entitled to possession of the suit property as contended
~~ H
492 SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A 3) Is she entitled for damages as claimed by her?

4) To what relief the plaintiff was entitled, if any?

An additional issue was framed which is of the following effect:

B Does defendant No. 1 prove that the suit was purchased nominally in
the name of the plaintiff under the circumstances pleaded in the written
statement, the plaintiff is a benamidar and he is the real owner of the suit
property, as contended?

c claimsParties went to trial after adducing evidence to support their respective
as made out in the pleadings.

Both the courts found on consideration of the oral and documentary
evidence on record as well as the pleadings that -

1) the appellant had paid the purchase money.
D
2) the origi{lal title deeds were with the appellant.

3) the appellant had mortgaged the suit property for raising loan
to improve the same.
E
4) he paid taxes for the suit property.

5) he had let out the suit property to defendant Nos. 2 to 5 and
collecting rents from them.

F 6) the motive for purchasing the suit property in the name of
plaintiff was that the plaintiff was born on an auspicious
nakshatra and the appellant believed that if the property was
purchased in the name of plaintiff/respondent, the appellant
would prosper.

G 7) the circumstances surrounding the transaction, relationship of
the parties and subsequent conduct of the appellant tend to
show that the transaction was benami in nature.

On the aforesaid concurrent findings of fact it was held that the
H respondent had failed to prove that she was the real owner of the suit property
G. MAHALINGAPPA v. G.M. SAVITHA [CHATTERJEE, J.] 493

and that the appellant was however the real owner of the same and the A
respondent was only a benamidar of the appellant.

Accordingly, the appellate court as well as the trial court dismissed the
suit of the respondent.

Feeling aggrieved by the concurrent decisions of the appellate court as
B
well as the trial court, a second appeal was filed before the High Court at
Bangalore, which, however, had set aside the concurrent decisions and
decreed the suit of the respondent only on the ground that the purchase by
the appellant in the name of the respondent was intended for the benefit of
the respondent. While coming to this conclusion, the High Court had taken c
into consideration the fact that since the appellant had already executed a Will
bequeathing his property to the respondent and two other sons, which would,
according to the High Court, amply show that the intention of the appellant
to purchase the suit property in the name of the respondent was to benefit
the respondent. In our view, this finding on the face of the record is erroneous
D
and perverse. This finding, according to us, was arrived at by the High Court
in the second appeal without any material on record to support such finding
nor it was based· after considering the oral and documentary evidence as well
as the findings of fact arrived at by the trial court and appellate court. On
the other hand, in our view, the findings of the appellate court as well as the
trial court were based on due consideration of oral and documentary evidence E
on record and pleadings of the parties. To consider the intention to purchase
the suit property for the benefit of the respondent, in our view, the fact of
bequeathing the suit property by executing a Will by the appellant in favour
of respondent and two sons could not at all be a factor for consideration. The
execution of the Will by the appellant in favour of his sons and the respondent
F
would only indicate that the suit property was treated as the property of his
own and the respondent was never accepted by him to be a real owner of
the same. The other ground on which the concurrent findings of fact were
set aside and suit was decreed is to the following effect:

"Even otherwise, as could be gathered from the evidence and G
representation made at the Bar, her father used to purchase the
property in the name of all his sons and daughters on auspicious
days. It can be clearly gathered that the intention of the father was
to benefit his children to avoid any possible conflict or dispute that
may arise between them with reference to sharing of the properties H
494 SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A after his life time. Therefore, taking the view on equity as well, and
the cumulative circumstances, I am inclined to hold that the plaintiff
is entitled to be held as the owner of the property."

We are unable to agree with this conclusion of the High Court. It is
difficult to rely on the representation from the Bar that the appellant used
B to purchase properties in the names cf his children on auspicious days and
for that the intention of the appellant to purchase the suit property for the
benefit of the daughter only must be presumed without having any material
to support this conclusion from the record. We must not forget that the High
Court was dealing with a second appeal which was filed against the
c concurrent findings of fact based on consideration of oral and documentary
evidence adduced by the parties and such findings were on sound reasoning.
Even otherwise, we are of the view that the presumption that the suit property
was purchased for the benefit of the respondent only was amply rebutted by
the appellant by adducing evidence that the suit property, though purchased
D in the name of the respondent, was so purchased for the benefit of the
. appellant and his family.

As noted hereinearlier, the appellate court as well as the trial court on
consideration of all the materials including oral and documentary evidence
and on a sound reasoning after considering the pleadings of the parties came
E to concurrent findings of fact that purchase of the suit property by the
appellant in the name of the respondent was benami in nature. As noted herein
earlier, the following findings of fact were arrived at by the appellate court
and the trial court to conclude that the transaction in question was benami
in nature :-

F l) the appellant had paid the purchase money.

2) the original title deed was with the appellant. And

3) the appellant had mortgaged the suit property for raising loan to
improve the same.
G
4) he paid taxes for the suit property.

5) he had let out the suit property to defendant Nos. 2 to 5 and
collecting rents from them.

H 6) the motive for purchasing the suit property in the name of plaintiff
G. MAHALINGAPPA v. G.M. SA VITHA [CHATTERJEE, J.] 495

was that the plaintiff was born on an auspicious nakshatra and the A
appellant believed that ifthe property was purchased in the name
of plaintiff/respondent, the appellant would prosper.

7) the circumstances surrounding the transaction, relationship of the
parties and subsequent conduct of the appellant tend to show that B
the transaction was benami in nature.

Keeping these concurrent findings of fact in our mind which would
conclusively prove that the transaction in question was benami in nature, let
us now consider whether the appellant was entitled to raise the plea ofbenami
in view of introduction of the Benami Transaction (Prohibition) Act, 1988 C
(In short "Act") and whether the Act was retrospective in operation. If so,
in view of Section 4(2) of the Act, plea of benami in the defence of the
appellant was not available to him.

Before a two Judges Bench decision of this Court, in the case of D
Mithilesh Kumari and Another v. Prem Behari Khare, [1989] 2 SCC 95 this
question had cropped up. In that decision, it was held that the question of
benami cannot be taken as a plea either in the plaint or in the written statement
even when the sale deed was executed and registered before the introduction
of the Act and when the suit was tiled before the Act had come into force.
Before we proceed further, we may remind ourselves of certain provisions E
of the Act. Section 2 (a) defines 'benami transactions' which means any
transaction in which property is transferred to one person for a consideration
paid or provided by another person. Section 3 (1) and (2) reads as under:

3(1) "No person shall enter into any benami transactions. F
(2) Nothing in sub-section(!) shall apply to the purchase of
property by any person in the name of his 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 wife or the
G
unmarried daughter."

(Underlining is ours)

Section 4 of the Act prohibits the right to recover property held benami.
It reads as under:
H
496 SUPREME COURT REPORTS [2005) SUPP. 2 S.C.R.

A 4(1) "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 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
B held benami, whether against the person in whose name the property
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. "
(Underlining is ours)
c
Since in this case, we are concerned with the question whether the
appellant was entitled to raise the plea of benami in his defence in view of
the bar impo;;ed in Section 4(2) of the Act, let us now confine ourselves to
the bar imposed in Section 4(2) of the Act of taking this plea in his defence
and to the question of retrospective operation of this section or this provision
D is prospective in operation.

Now, therefore, the question arises is whether under section 4(2) of the
Act, defence can be allowed to be raised 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 or on behalf of a person claiming to be real owner of such property.
As noted already, this question cropped up for decision before this Court in
the case of Mithilesh Kumari and Another v. Prem Behari Khare, [1989) 2
SCC 95. In fact, the retrospective operation of this provision, as noted herein
earlier, was answered in the affirmative in the aforesaid decision. However,
F the correctness of that decision was doubted and an order was passed by this
Court subsequently referring this question of retrospectivity for decision to
a 3-Judges Bench -0f this Court. In the case of R.Rajagopal Reddy (Dead)
by LRs. And Ors. v. Padmini Chandrasekharan (Dead) by LRs., [1995) 2 SCC
630, S.B. Majmudar, J. (As His Lordship then was) writing the judgment for
G the Three Judges Bench could not agree with the views expressed in
Mithilesh Kumari's case and held that the Act was prospective in nature and
it has no retrospective operation excepting certain observations made in
respect of some cases which would be mentioned hereinafter. In paragraph
l O it was observed as follows:- "though the Law Commission recummended
retrospective applicability of the proposed legislation, Parliament did not
H
G. MAHALINGAPPA v. G.M. SA VITHA [CHATTERJEE, J.] 497

niake the Act or any of its sections retrospective in its wisdom. ". Thereafter A
on a careful consideration of the provisions made under sections 3 and 4 of
the Act, it was observed:

"A mere look at the above provisions shows that the prohibition
under Section 3( I) is against persons who are to enter into benami
transactions and it has laid down that no person shall enter into any B
benami transaction which obviously means from the date on which
this prohibition comes into operation i.e. w.e.f. 51911988. That takes
care of future benami transactions. We are not concerned with sub-
section (2) but sub-section (3) of Section 3 also throws light on this
aspect. As seen above, it states that whoever enters into any benami c
transaction shall be punishable with imprisonment for a term which
may extend to three years or with fine or with both. Therefore, the
provision creates a new offence of entering into such benami
transaction. It is made non-cognizable and bailable as laid down
under sub-section (4) It is obvious that when a statutory provision
' creates new liability and new offence, it would naturally have
D
prospective operation and would cover only those offences which
take place after Section 3(I) comes into operation."
(Underlining is ours).

In paragraph I l of the said decision. of this Court, the Supreme Court E
further observed "On the contrary, clear legislative intention is seen from the
words "no such claim, suit or action shall lie", meaning thereby no such suit,
claim or action shall be permitted to be filed or entertained or admitted to
the portals of any court for seeking such a relief after coming into force of
Section 4(I)." F
(underline is ours).

In the same paragraph the Supreme Court observed:

" With respect, the view taken that Section 4(1) would apply
even to such pending suits which were already filed and entertained G
prior to the date when the section came into force and which has
the effect of destroying the then existing right of plaintiff in
connection with the suit property cannot be sustained in the face of
the clear language of Section 4(1). It has to be visualized that the
legislature in its wisdom has not expressly made Section 4 H
-
498 SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A retrospective. Then to imply by necessary implication that Section
4 would have retrospective effect and would cover pending litigations
filed prior to coming into force ofthe section would amount to taking
a view which would run counter to the legislative scheme and intent
projected by various provisions ofthe Act to which we have referred
earlier. It is, however, true as held by the Division Bench that on
B the express language of Section 4(1) any right inhering in the real
owner in respect of any property held benami would get effaced
once Section 4( 1) operated, even if such transaction had been
entered into prior to the coming into operation of Section 4(1), and
henceafter Section 4(1) applied no suit can lie in respect to such a
c past benami transaction. To that extent the section may be retroactive."

In our view, similar is the position in law on the question of retrospectivity
of section 4(2) of the Act.

Finally, this Court in the aforesaid decision held that the decision in ;
D Mithilesh Kumari & Anr. v. Prem Behari Khare erred in taking the view that
under Section 4(2), in all suits filed by persons in whose names properties
are held no defence can be allowed at any future stage of the proceedings
that the properties are held benami cannot be sustained. It was also held that
Section 4(2) will have a limited operation even in cases ofpending suits after
E Section 4(2) had come into force, if such defences are not already allowed
The decision in R. Rajagopal Reddy (Dead) by LRs. And Ors. v. Padmini
Chandrasekharan (Dead) by LRs., [1995] 2 SCC 630 whir,h overruled the
decision of two Judges Bench in the case of Mithilesh Kumari and Anr. v.
Prem Behari Khare, [1989] 2 SCC 95 was also approved by this Court in
the cases of Prabodh Chandra Ghosh v. Urmila Dassi, AIR (2000) SC 2534
F and C. Gangacharan v. C.Narayanan, AIR (2000) SC 589. In view of the
aforesaid, this question is, therefore, no longer res integra.

Therefore, we are now to consider in this case whether the facts
disclosed would indicate that even after coming into force of the Act the
G defence under Secion 4 can be available. Admittedly, the transaction in
question was registered on 24th August, 1970. The suit was filed on 5th of
July 1984 which was long before coming into force of the Act. It is an
admitted position that the written statement in the suit taking plea of benami
was also filed by the appellant long before the Act had come into force.
H Therefore, it was not a case where Section 4(2) of the Act will have a limited
G. MAHALINGAPPA v. G.M. SA VITHA [CHATTERJEE, J.] 499

operation in the pending suit after Section 4(2) of the Act had come into A
operation. It is true that the judgment of the trial court was delivered after
the Act had come into force but that could not fetter the right of the appellant
to take the plea of benami in his defence. Since the Act cannot have any
retrospective operation in the facts and circumstances of the present case, as
held by this Court in the aforesaid decision, we are therefore of the view that B
the appellant was entitled to raise the plea of benami in the written statement
and to show and prove that he was the real owner of the suit property and
that the respondent was only his benamidar.

Before parting with this judgment, we may take into consideration of
a short submission of the learned counsel for the respondent. The submission C
is that since the suit property was purchased by the appellant in the name
of the respondent, the suit property must be held to have been purchased by
him for the benefit of the respondent. Section 3 deals with Prohibition of
benami transaction. Sub-section (I) clearly prohibits that no person shall
enter into benami transaction. However, sub-section (2) of Section 3 clearly D
says that nothing in sub-section (1) shall apply to purchase of property of
any person in the name of his wife, unmarried daughter and it shall be
presumed, unless the contrary is proved, that suit property had been
purchased for the benefit of the unmarried daughter.

Section 3(2) makes it abundantly clear that if a property is purchased E
in the name of an unmarried daughter for her benefit, that would only be a
presumption but the presumption can be rebutted by the person who is
alleging to be the real owner of the property by production of evidences or
other materials before the court. In this case, the trial court as well as the
appellate court concurrently found that although the suit property was F
purchased in the name of the respondent but the same was purchased for the
interest of the appellant. We are therefore of the opinion that even if the
presumption under section 3(2) of the Act arose because of purchase of the
suit property by the father ( in this case appellant) in the name of his daughter
( in this case respondent), that presumption got rebutted as the appellant had
successfully succeeded by production of cogent evidence to prove that the
G
suit property was purchased in the benami of the respondent for his own
benefit.

Let us now consider whether the concurrent findings of fact could be
set aside by the High Court in the second appeal. It is well settled by diverse H
500 SUPREME COURT REPORTS [2005) SUPP. 2 S.C.R.

A decisions of this Court that the High Court il_l second appeal is entitled to
interfere with the concurrent findings of fact if the said concurrent findings
of fact are based on non-consideration of an important piece of evidence in
the nature of admission of one of the party to the suit, which is overlooked
by the two courts below (See [2003) 7 SCC 481, Deva (Dead) Through LRs
v. Sajjan Kumar (Dead) by LRs). It is equally well settled that under section
B
l 00 of the Code of Civil Procedure, High Court cannot interfere with
concurrent findings of facts of the courts below without insufficient and just
reasons. (See [2003] 7 SCC 52, Sayeda Akhtar v. Abdul Ahad). In second
appeal, High Court is also not entitled to set aside concurrent findings of fact
by giving its own findings contrary to the evidence on record. (See [200 l]
c 4 SCC 694, Saraswathi & Anr. v. S. Ganapathy & Anr.).

As held herein earlier the High Court had set aside the concurrent
findings of fact not on consideration of the evidence adduced by the parties
but set aside the concurrent findings of fact on the basis of findings contrary
D to the evidence on record and without considering the findings of fact arrived
at by the appellate court and the trial court. From the judgment of the High
Court we further find that the concurrent findings of fact were set aside not
on consideration of the findings of fact arrived at by the courts below but
only on the basis of the arguments of the learned Advocate of the respondent.
This was also not permissible to the High Court in Second Appeal to come
E
to a contrary findings of its own only on the basis of the arguments of the
learned counsel for the respondent without considering the findings of the
trial court as well as the appellate court. (See [2002] 9 SCC 715, Gangajal
Kunwar (Smt.) and Ors. v. Sarju Pandey (Dead) by LRs & Ors.). It is equally
settled that High Court in second appeal is not entitled to interfere with the
F concurrent findings of fact arrived at by the courts below until and unless
it is found that the concurrent findings of fact were perverse and not based
on sound reasoning. We ourselves considered the evidence on record as well
as the findings of fact arrived at by the two courts below. From such
consideration we do not find that the concurrent findings of fact arrived at
G by the appellate court as well ~s the trial court were either perverse or without
any reason or based on non-consideration of important piece of evidence or
admission of some' of the parties. We are therefore of the view that the High
Court was not justified in interfering with the concurrent findings o:'.' fact
arrived at by the appellate court as well as the trial court which findings were
H rendered on consideration of the pleadings as well as the material (oral and
G. MAHALINGAPPA v. G.M. SAVITHA [CHATTERJEE, J.) 501

documentary) evidence on record. A

For the reasons aforesaid this appeal is allowed. The judgment of the
High Court impugned in this Court is set aside and the judgments of the trial
court as well as the appellate court are affirmed. The suit filed by the
respondent shall stand dismissed. B
There will be no order as to costs.

v.s.s. Appeal allowed.