MITHILESH KUMARI & ANR. versus PREM BEHARI KHARE

MITHILESH KUMAR! & ANR. v. PREM BEHAR! KHARE FEBRUARY 14, 1989 [G:L. OZA AND K.N. SAIKIA, JJ .. ]

Benami Transactian· (Prohibition) Act, 1988: Sections 2(a),(c), 3(2) and 4-Prohibition of right to recover property held benami-Whether applicable to an appeal pending on the date of commencement of Act-Delay in disposal of appeal-Whether an action of court-Maxim actus curiae gravabit nemenium-Applicability of.

Constitution of India, 1950: Art. 136--Supreme Court-When can interfere with concurrent findings of fact.

Statutory Construction: Retrospective operation-Presumption against-When .arises-Act declaratory in nature-Whether operates from time antecedent to enactment-Qualifying or disqualifying statute-Whether retroaciive-Remedy barred by Act-Whether corresponding right rendered unenforceable-Law Commission's Report-Whether can be referred as external aid to construction of pro-visions of statute.

Practice & Procedure: Decree passed by courts-Appeal pending-Appel/ate Court-Wheiher competent to take into account legislative changes subsequent to the decree in moulding the relief to be 1 [granted. ]

Words and Phrases: Ubi jus ibi remedium-Meaning of.

The respondent tiled suit in the Court of Civil Judge, praying that he be declared the sole and real owner of the suit house and that the appellant be permanently restrained from transferring the suit house. The trial court decreed the suit accordingly. The appellant tiled an appeal before the Additional District Judge, who dismissed the same, agreeing with the findings of the trial court that the respondent had paid the price and purchased the house henami in the naine of the appellant and therefore, the appellant had no right to create an equit-able mortgage or to transfer the suit house. The appellant's second appeal was· a.lso dismissed by the High Court. Hence, the appeal by special leave, by the appellant. During the pendency of the appeal, the .

Benami Transactions (Prohibition) Act, 1988 came into force.

It was contended on behalf of the appellant that the respondent and the appellant had been living as man and wife and out of affection for the appellant, the respondent had purchased the suit house in the appellant's name for Rs.8,000, for wkich the appellant had contributed Rs,2,000 and, therefore, the courts below had erred in holding that lhe suit house was not gifted by the respondent to the appellant bnt was held benami in her name, and that even if it was so held benami, the subse-quent legislation, namely, the Benami Transactions (Prohibition)' Act, 1988 had put complete bar to the respondent's suit against the appel-lants in respect of the suit house.

On behalf of the respondent, it was submitted that the issues on gift and benami have been concluded by concurrent findings of fact of the· courts below and that the respondent's right to the benami suit house having already become final it would not be affected by the subse-D quent Act.

On the questions: (a) whether the concurrent findings of fact of the courts below should be interfered with or not, (b) whether despite the decree in favour of the respondent, the suit or action would be affected by the subsequent legislation, namely, the Benami Trans-E actions (Prohibition) Act, 1988 and its predecessor Ordinance, (c) whether, on proper construction, the legislature may be said to have expressed its intention of retrospective applicability of the legisla-tion, and (d) whether there was suit present between the respondent and the appellant on the date of the law coming into force,

Allowing the appeal, this Court,

HELD: I. I retrospective operation is not to be given to sta-tute, so as the impair existing right or obligation otherwise than as regards matter of procedure unless that effect cannot he avoided with-out doing violence to the language of the enactment. The presumption against retrospective operation is strong in cases in which the statute, if operated retrospectively, would prejudicially affect vested rights or the illegality of the past transactions, or impair contracts or impose new duty or attach new disability in respect of past transactions or consideration a_lready passed. However, statute is not properly called retrospective statute because part of the requisites for its action is drawn from time antecedent to its passing. [633H; 634A-C]

1.2 Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive. But laws made justly and for the benefit of individuals and the community as whole may relate to time antecedent to their comm-encement. The presumption against retrospectivity may in such cases be rebutted by necessary implication from the language employed in the statute. It cannot be said to be an invariable rule that statute could not be retrospective unless so expressed in the very terms of the section which has to be construed. The question is whether on proper construclion, the legislature may be said to have so expressed its intention. l634C-E]

1.3 Before applying statute retrospectively, the court has to be satisfied that the statute is in fact retrospective. The Courts.must also look at the general scope and purview of the statute and at the remedy sought to be applied and consider what was the former state of law and what the legislation contemplated. l634A-B]

Craise on Statute Law, 7th ed. referred to.

1.4 Where particnlar enactment or amendment is the result of the recommendation of the Law Commission oflndia, it may be permis-sible to refer to the relevant report. What importance can be given to it will depend on the facts and circumstances of the case. However, the conrt has to interpret the language used in the Act and when the language is clear and nnambiguous, it must be given effect to. Law Commission's Report may be referred to as external aid to construction of the provisions. l631C; 633DI

Santa Singh v. State of Punjab_, [1977] l S.C.R. 229 referred to.

In the instant case, the Law Commission was of the view that the legislation replacing the Benami Transactions (Prohibition of Right to Recover Property Ordinance, 1988) should be retroactive in operation and that no locus penitentia need be given to the persons who had entered in the benami transactions in the past. l633B I

2.1 When an Act is declaratory in nature, the presumption against retrospectivity is not applicable. Acts of this kind only declare. statute in effect declaring the benami transactions to be unenforce-able belongs to this type. [636A-B]

2.2 The Parliament has jurisdiction to pass declaratory legisla-

tion. As result of the provisions of the Benami Transactions (Prohibi-tion) Act, 1988, all properties held benami at the moment of the Act coming into force may be affected irrespective of their beginning, dura-tion and origin. This will be so even if the legislation is not retrospec-tive, but only retroactive. l633E-F)

2.3 The expression "any property held benami" in s. 4 of the Act

is not limited to any particular time, date or duration. Once the pro-perty is found to have been held benami, no suit, claim or action to enforce any right in respect thereof shall lie, and the real owner is bereft of any defence against the person in whose name the property is .. held or any other person. In its sweep, s. 4 envisages past benami 1C transactions also within its retroactivity. In this sense, the Act is both penal and disqualifying statute. In case of qualifying or disqualify-ing statute, it may be necessarily retroactive. l635E-H) .y-

2.4 The presumption against taking away vested right will not apply in this case inasmuch as under law it is the benamidar in whose name the property stands, and law only enabled the real owner to recover the property from him which right has now been ceased by the Act. In one sense there was right to recover or resist in the real owner against the benamidar. Ubi jus ibi remedium. When there is right, there is remedy. Where the remedy is barred, the right is rendered unenforceable. In this sense it is disabling statute. All the real owners are equally affected by the disability provision irrespective of the time of creation of the right. right is legally protected interest. The real owner's right was hitherto protected and the Act has resulted in re-moval of that protection. [636B-C]

2.5 When the law nullifies the defences available to the real owner m recovering the benami property from the benamidar, the law . must apply irrespective of the time of the benami transactions. The expression "shall lie" in s. 4(1) and "shall be allowed" in s. 4(2) are prospective and shall apply to present (future stages) and future suits, claims or actions only. [ 636D I

3, The hearing of appeal under the procedural law of India is in

the nature of re-hearing and, therefore, in moulding the relief to be granted in case on appeal, the appellate court is entitled to take into account even facts and events which have come into existence after the decree appealed against. Consequently, the appellate court is compe-tent to take into account legislative changes since the decision under appeal was given and its pow~rs are not confined only to see whether the

lower court's decision was correct according to the law as it stood at the time when its decision was given. l636F-G J

Once the decree of the High Court has been appealed against, the matter became sub judice again and, therefore, the Supreme Court had seisin of the whole case, though for certain purposes, e.g. execution, the decree was regarded as final and the courts below retained jurisdiction in that regard. l636G-H]

Lachmeshwar v. Keshwar Lal A.I.R. 1941 F.C. 5; Shyabuddin-sab v. The Gadag:Betgeri Municipal Borough, 11955] 1 S.C.R. 1268; The King v. The General Commissioner of Income Tax, 11916] 2 K.B. 249; Mukharjee Official Receiver v. Ramratan Kaur, 11935] L.R. 63 I.A. 47; Dayawati v. Inderjit, 11966] 3 S.C.R. 275; Mohan/al Jain v. His Highness Maharaja Shri Man Singh, 11962] 1 S.C.R. 702 and Amerjit Kaur v. Pritam Singh, 11975] I S.C.R. 605 relied upon. ·

Nand Kishore Marwah v. Samundri Devi, 11987] 4 S.c:c. 382 distinguished.

4. Ordinarily, this Court in an appeal will not interfere with finding of fact which is not shown to be perverse or based on no evi-dence. But where there are material irregularities affecti~g the said finding or where the court feels that justice had failed and the finding is likely to result in unduly excessive hardship, this Court cannot decline to interfere merely on the ground that the finding in question is finding of fact. l627E, H; 628A} .

Babu v. Dy. Director, A.I.R. 1982 S.C: 756; Prasad v. Govin-daswamy, A.LR. 1982 S.C. 84; Dhanjibhai v. State of Gujarat, A.I.R. 1985 S.C. 603; Ganga Bishan v. Jay Narayan, AIR 1986 SC. 441; Udaychand Disst v. Saihal Sen, A.LR. 1988 S.C. 367 and Ram Singh v. Ajay Chawla AIR 1988 S.C. 514 relied upon.

In the instant case, the concurrent findings of the courts below are based on reasonable appreciation of evidence on re~ord and; therefore, can in no way be said to be perverse or unreasonable. The High Court has analaysed the facts and correctly applied the tests to determine whether the transaction was benami or not. Therefore, there is no justification in the appeal under Art. 136 of the Constitution for interference with the concurrent findings offact. l629A~C]

[1989] 1 S.C.R.

the date of .coming into force of s. 4 of the Benami Transactions (Prohi-bition) Act, 1988, which nullified the defences available to the real owner in recovering the benami property from the benamidar, and since the law was applicable irrespective of the time of the benami transactions, the respondent's suit or action for recovering the suit house held benami by the appellant cannot be decreed. [6360-E]

No doubt, nobody should suffer for an act of the Court, but delay in disposal of an appeal cannot be termed an action of the conrt. Hence the maxim actus curiae nemenim gravabit is not applicable in this case. [637F-GJ

•·· The decree passed by the lower conrts is, therefore, annihilated and the suit tiled by the respondent is dismissed. [637GI

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2311

of 1978.

From the Judgment and Order dated 27.3.1978 of the Allahabad High Court in Second Appeal No. 130 of 1975.

• Awadh Behari and N.N. Sharma for the Appellants.

Yogeshwar Prasad and Mrs. Rani Chhabra for the Respondent.

The Judgment of the Court was delivered by

K.N. SAIKIA, J. This appeal by special leave is from the judg-ment and order dated 27 .3.1978 of the High .Court of judicature at Allahabad (Lucknow Bench), in second appeal No. 130 of 1975, dismissing the appeal and upholding the decree of the plaintiff-res-pondent's suit.

' The plaintiff-respondent Prem Behari Khare instituted suit No. 42 of 1971 in the court of Civil Judge, Mohanlal Gunj, Lucknow praying for the reliefs, inter alia, that he be declared to be the sole and real owner of the suit house, and that the defendant-appellant be permanently restrained from transferring the suit house. The learned Civil Judge, Lucknow, by his judgment dated 13.3.1974 decreed the suit declaring the plaintiff to be the sole and real owner of the suit house and permanently restraining the defendant from transferring the suit house to any other person. On first appeal by the defendant-H appellant the learned Additional District Judge, Lucknow by his judg-

ment dated 23.12.1974 dismissed the appeal agreeing with the findings of the trial court that it was the plaintiff-respondent who paid the consideration and purchased the suit house benami in the name of the defendant-.appellant who, therefore, had no right to create any equit-able mortgage or to transfer the suit house. The defendant-appellant's second appeal thereafter was also dismissed by the High Court of Judicature at Allahabad by the impugned judgment dated 27.3. 1978. ·. Hence this appeal by special leave.Mr. A.B. Rohtagi learned counsel for the appellant submits, inter alia, that the learned courts below erred in holding that the suit house was not gifted by the plaintiff to the defendant but was held benami in her name; and that even if it was so held benami, the subsequent legislation, namely, the .Benami Transactions (Prohibi-tion) Act 1988, has put complete bar to the pfaintiff's suit against the defendant in respect of the suit house.

Mr. Yogeshwar PraS!Kl learned counsel for the respondent refutes submitting that the"issues on gift and benami .have been con-eluded by concurrent findings of fact of the learned courts below; and that the plaintiffs right to the be.nami suit house having already be-come final, it will not be affected by the subsequent Act.

The first question, therefore, is whether or not to interfere with the concurrent findings of fact of the learned courts below. It has been said in series of decisions that ordinarily this court in an appeal will not interfere with finding of fact which is not shown to be perverse or based on no evidence, (Babu v. Dy. Director, A.LR. 1982 S.C. 756), but will interfere if material circumstances are ignored by the High Court. Prasad v. Govindaswamy, A.LR. 1982 S:C. 84. In Dhanjibhai v. State of Gujarat, A.LR. 1985 S.C. 603 it was observed that where finding of fact has been rendered by learned Single Judge of the High Court as a. court of first instance and thereafter affirmed in appeal by an Appellate Bench of that High Court, this Court should be reluctant to interfere with the finding unless there is very strong reason to do so. There is"i10 reason why this should not apply to c~ses where the first. appellate court was the district court. It was noted in Ganga Bishan v. Jay Narayan, A.LR. 1986 S.C. 441 that ordinarily this Court, under Article 136 of the Constitption, would be averse to interfere with con-current findings of fact recorded by the High Court and the Trial Court. But where there are material irregularities affecting the said findings or where the court feels that justice has failed and the findings are likely to result in unduly excessive hardship this court could not

11989] 1 S.C.R.

decline to interfere merely on the ground that findings in question are findings on fact. So also in Uday Chand Dutt v. Saibal Sen, A.LR. 1988 S.C. 367 it was said that in an appeal· by special leave under Article 136 of the Constitution of India where there are concurrent findings of the courts below this court is not called upon to reconsider the entire evidence in detail to ascertain whether the findings are justified. In Ram Singh v. Ajay Chawla, A.LR. 1988 S.C. 514 where the concurrent finding was that the appellants were in unauthorised occupation of premises of which the respondents were the owners this court did not interfere with the concurrent findings of fact.

court did not interfere with the concurrent findings of fact. Mr. Rohtagi lays emphasis on the facts, namely, that the plaintiff Prem Behari Khare's wife having died in 1955 leaving behind two sons [i]aged about 2 and 3 years respectively, he faced great difficulties in managing the household, looking after his sons and carrying on his duties as employee of the Allahabad Bank; that under these circum-stances he agreed to take in the defendant Mithilesh Kumari whose relation with her husband Ram Swarup was then estranged; that the relation between the plaintiff and the defendant come to be such that she bore two children to him; that there were efforts to legalise their de facto living as man and wife by obtaining defendant's divorce from her husband, and in fact there was decree for judicial separation in 1958; that the plaintiff had full confidence in, and affection towards the defendant; and that in the court he could give no reason why he purchased the house in the name of the defendant. Under those circumstances, counsel submits, the purchase of the suit house in the name of the defendant was made for Rs.8,000 out of which Rs.2,000 contributed by the defendant, and the learned courts below ought, therefore, to hdve. held the transaction of purchase in the name of defendant to have been genuine gift out of love and affection and not \; · benami purchase in her name. · (

( _,,..

Perusing the judgment of the Trial Court we find that whether the transaction was benami or it was genuine gift by the plaintiff to the· defendant were main issues on which parties led evidence. The averment that the defendant contributed Rs.2,000 towards purchase ~ price was disbelieved by both the courts below. The plaintiff-res-pondent proved from the statement of his Savings Bank account uf -!-Allahabad Bank, Exts. 6, 7 and 8, that he withdrew Rs.8,250 on 8.11.1962 and stated in witness box that he purchased the suit house in the name of the defendant by sale deed executed on 8.11.1962 which was registered on 9.11.1962. The plaintiff-respondent has since been staying in the suit house. As the two were living as man and wife the

custody of the sale deed was not very material. We thus find that the concurrent findings are based on reasonable appreciation of evidence on record and, therefore, can in no way be said to be perverse or unreasonable. Counsel criticises the observation of the High Court that the relation between the two was of rather objectionable nature. We do not think that this observation was unwarranted or it had in any way prejudiced the defendant's case. The High Court has analysed the facts and correctly applied the tests to determine whether the trans-action wa~ benami or not discussing the case law. We do not find any justification in the appeal under Article 136 of the Constitution of India to interfere with the concurrent findings of fact.The next question is whether despite the decree in favour of the plaintiff-respondent his suit or action will be affected by the subse-·'1. quent legislation, namely, the Benami Transactions (Prohibition) Act, 1988 and its predecessor Ordinance. In other words, whether the effectuation of the decree has been barred. For this it is relevant to note that the impugned High Court judgment was dated 27.3.1978. The first appellate court's judgment was dated 23.12.1974, the trial court judgment dated 13.3.1974 and the suit was filed in 1971. The special leave to appeal was granted by this Court on 15.11.1978. The Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988, hereinafter referred· to as 'the Ordinance', was promulgated on May 19, 1988 to come into force at once. The Benami Transactions (Prohibition) Act, 1988 (Act No. 45 of 1988), hereinafter referred to.as 'the Act', received the asset of the President of India on September 5, 1988. The provisions of Sections 3, 5 and 8 of the Act came into force at once on that date and the remaining provisions were to be deemed to have come into force on 19th day of May 1988. It is an ~. Act to prohibit benami transactions and the right to recover property --r 1 held benami and matters connected therewith or incidental thereto.

· Mr. Rohtagi submits that provisions of the Act cover past benami transactions also and that to hold so it would be permissible for this Court to refer to the 57th Report of the Law Commission oflndia wherein it was suggested that the legislation should not be applied to past transactions but the Parliament did not accept that suggestion, _ ~ and made the law applicable to past transactions also.

Learned counsel for the respondent submits that the provisions of the Act are prospective and not retrospective, and as such would not affect the respondent's established right to the bena.mi property. He has not controverted that this Court can refer to La'W Commission's Report.

[1989] 1 S.C.R.

To decide the controversy the relevant provisions of the Act may be referred to. As defined in section 2(a) of the Act "Benami Trans-action" means any transaction in which property is transferred to one person for consideration paid or provided by another person. As defined in section 2(c) of the Act "property" means property of any kind, whether movable or immovable; tangible or intangible and in-B cludes any right or interest in such property. There can, therefore, be no doubt that the transaction by which the suit house was transferred to the defendant-appellant for Rs.8,000 paid or provided by the plaintiff-respondent would be benami transaction if this law is appli-cable to it. There is also no doubt that the suit house being tangible immovable would be included within this definition of 'property'.

Section 3 of the Act prohibits benami transactions by providing:

"(1) No person shall enter into any benami transaction.

(2) Nothing in sub-section (1) 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 the wife or the unmarried daughter.

(3) Whoever enters into any benami transaction shall be punishable with imprisonment for term which may extend to three years or with fine or with both.

( 4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under ~ this section shall be non-cognisable and bailable."

The appellant having not been wife or unmarried daughter of the respondent the exception in (2) will not be applicable.

Section 4 prohibits the right to recover property held benami by

providing:

"(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 or against any other person shall lie by or on behalf of person claiming to be the real owner of such property.

(2) No defence based on any right in respect of any pro-A perty 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 person claiming to be the real owner of such property."

Having upheld the finding that the suit house has been held benami by the respondent in the name of the appellant, the question is whether to this transaction the Act shall be applicable. The Act has not been made retrospective by any specific provision. Is it permissible to refer to the Law Commission's Report to ascertain the legislative intent behind the provision? We are of the view that where particular enactment or amendment is the result of recommendation of the Law Commission of India, it may be permissible to refer to the relevant report as in this case. What importance can be given to it will depend on the facts and circumstances of each case.

In Santa Singh v. State of Punjab, [1977) 1 S.C.R. 229 Fazal Ali, J. in order to answer the question whether the non-compliance with the provisions of section 235(2) of the Criminal Procedure Code, 1973 vitiated the sentence passed by the court considered it necessary to trace the historical background and social setting under which section 235(2) was inserted for the first time in the 1973 Code and referred to the research done by the Law Commission which made several recom-E rnendations in its 48th Report for revolutionary changes in the provi-sion. The Statement of Objects and Reasons were also referred to in that context. In the instance case we find that way back in 1972 the Government of India considered it necessary to request the Law Commission of India to examine the problem of benami held property with view to determining whether benami transactions should be prohibited. The Law Commission accordingly submitted its 57th Report on benami transactions on 7.8.1973 after studying benami system as operating in India and in England. It also examined implica-tions of the provisions of th~ Indian Trust Act, 1882 and other statu-tory modifications of the Benami Law as contained in the Code of Civil Procedure, the Transfer of Property Act, the Indian Penal Code and the Income-tax Act. It also suggested in its Report the following draft of proposed legislation:

6.33 Recommendation: In the light of the above discussion, we recommend the enactment of separate law containing the following legislative provisions:

[1989] 1 S.C.R.

"(1) No suit 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 be instituted in any court by or on behalf of person claiming to be the real owner of such property.

(2) In any suit, no defence based on any right in respect -t of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any court by or i on behalf of person claiming to be the real owner of such property.

(3) Nothing in this section shall apply:

(a) whether the person in whose name the property is held is manager of, or co-parcener in, Hindu undivided family, and the property is held for the benefit of the co-parceners in the family, or •

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

On 19th May 1988, the President of India promulgated the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988 (No. 2 of 1988) "to prohibit the right to recover property held benami and for matters connected therewith and inci-F dental thereto" based on the suggestion of the Law Commission of India made as far back as in 1973. With this Ordinance the judicial acceptance of benami transactions was being removed with view to help people to keep property they were holding for others. It remedied the age old doctrine of benami and made benamidar the real owner in law, of course with few exceptions.

The Ordinance was referred by the Government on July 22, 1988 to the Law Commission of India requesting the latter to take up the question of benami transactions for detail examination and to give its considered views as early as possible so that Bill to replace the Ordinance could be drafted on the basis of its recommendations and got passed before the close of the Monsoon Session of the Parliament.

The 130th Report of the Law Commission was submitted to the Government on August 14, 1988. The Benami Transactions (Prohibi-tion) Bill, 1988, drafted after getting the report, was introduced in the Rajya Sabha on 31st August, 1988 and the Bill was passed. The Law Commission devoted several pages to justify retrospective legislation and its view was that the legislation replacing the Ordinance should be retroactive iit operation and that no locus penitentia need he given to the person who had entered iit the benami transactions in the past. It reported at para 3.18 as follows:

· "3.18. Therefore, viewed from either angle, the Law Com-mission is of the firm opinion that the legislation replacing the ordinance should be retroactive iit operation and that no locus penitentia need be given to the persons who had entered into benami transactions in the past. They had notice of one and half decades to set their house in order. No more iitdulgence is called for."

However, the court has to interpret the language used in the Act, and when the language is clear and unambiguous it must be given effect to. Law Commission's Reports may be referred to as external aid to construction of the provisions. It may be noted that the Act is · ?I. piece of prohibitory legislation and it prohibits henami transactions subject to stated exceptions and makes such transactions punishable and also prohibits the right to defences against recovery of benami transactions as defined in section 2( a) of the A.ct. The Parliament has jurisdiction to pass declaratory legislation. As result of the provi-sions of the Act all properties held benami at the moment of the Act coming into force may be affected irrespective of their beginning, ~ duration and origin. This will be so even if the legislation is not --r ) retrospective but only retroactive.

The learned counsel for the respondent rightly submits that the Act contains no specific provision makin~ its operation retrospective. ·The Law Commission itself observed that democratic culture abhors ex post facto legislatioii:and that it. was ·ne2;essary,io curb unlawful nefarious uses of property.

We read in Maxwell that it is fundamental rule of English Law that no statute shall be construed to have-retrospective operation tin-less such construction appears very clearly at the time of the Act, or · arises by necessary and distinct implic~tion. retrospective ope.ration is, therefore, not to be given to statute so as to impair existing right

[1989] 1 S.C.R.

or obligation, otherwise than as regards ma.tier of procedure .unless that effect cannot be avoided without doing Violence to the languauge of the enactment. Before applying statute retrospectively the Court has to be satisfied that the statute is in fact retrospective. The pre-sumption against retrospective operation is strong in cases in which the statute, if operated retrospectively, would prejudicially affect vested rights or the illegality of the past transactions, or impair contracts, or impose new duty or attach new disability in respect of past transactions or consideration already passed. However, statute is not properly called retrospective statute because part of the requisites for its action is drawn from time antecedent to its passing. We must look at the general scope and purview of the statute and at the remedy sought to be applied, and consider what was the former State of Law and what the legislation contemplated. Every ·law that takes away or impaiis rights vested agreeably to existing laws is retrospective, and is gener-ally unjust and may be oppressive. But laws made justli and for the benefit of individuals and the community as whole, as in this case, may relate to time antecedent to their commencement. The pre-D sumption against retrospectivity may in such cases be rebutted by necessary implications from the language employed in the statute. It cannot be said to be an invariable rule that statute could not be retrospective unless so expressed in the very tenns of the. section which had to be construed. The question is whether on proper construction the legislature may be said to have so expressed its intention. Craise on Statute Law, 7th Ed. writes that the general rule of law that statutes are not operated retrospectively may be departed from (a) by express enactment and (b) by necessary implication from the language emp-loyed, and the author goes on to say:

"If jt is necessary implication from the language emp-F loyed that the legislature intended particular section to have retrospective operation, the courts will give it such an operation. "Baron Parke," said Lord Hatherley in Pardo v. Bingham, did not consider it an invariable rule that statute could not be retrospective unless so expressed in the very terms of the section which had to be construed, and said that the question in each case was whether the legislature had sufficiently expressed that intention. In fact, we must look to the general scope and purview of the statute, and at the remedy sought to be applied, and consider what was the former state of the law, what it was that the legislature contemplated." But statute is not to be read retrospectively except of necessity .... In Main v.

Stark, Lord Selbome said: "Their lordships, of course do not say that there might not be something in the context of an Act of Parliament, or to be collected from its language, which might give towards prima facie prospective larger operation, but they ought not to receive larger operation unless you find some reason for giving it .... In all cases it is desirable to ascertain the intention of the legislature."

He went on: "Words not requiring retrospective opera-tion, so" as to affect an existing statute preudicially, ought not to be so construed", but in Renold v. Att. Genl. for Novo Scotia it was held that this rule did not extend to protect from the effect of repeal privilege which did not amount to an accrued right." (pp. 392-393)

As defined in Section 2(a) of the Act "benami transaction" means any transaction in which property is transferred to one person for _consideration paid or provided by any other person." trans-action must, therefore, be benami ii-respective of its date or duration. Section 3, subject to the exceptions, states th<1t no person shall enter into any benami transaction. This section obviously cannot have ~J retrospective operation. However, section 4 clearly provides that no r"-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 person claiming to be real owner of such property. This naturally relates to past trans-actions as well. The expression "any property-,_held benami" is not · limited to any particular time, date or duration. Once the property is found to have been held benami, no suit, claim or action to enforce . -, ~ any right in respect thereof shall lie. Similarly, sub-section (2) of · section 4 nullifies the defences based on any right iµ 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 by or on behalf of person claiming to be the real owner of such property. It means that once property is found to have been held benami, the real owner is bereft of any defence against the person in whose name the property is held or any other person. In other words in -.)... its sweep section 4 envisages past benami transactions also within its retroactivity. In this sense the Act is both penal and disqualifying statute. In case of qualifying or disqualifying statute it may be neces-sarily retroactive. For example when Law of Representation declares that all who hav~ attained 18 years shall be eligible to vote, those who attained 18 yeat'S in the past would be as much eligible as those who · ·

11989] I S.C.R.

attained that age at the moment of the law coming into force. When an 'r Act is declaratory in nature .ihe presumption against retrospectivity is not applicable. Acts of this kind only declare. statute in effect dee-laring the benami transactions to be unenforceable belongs to this type. The presumption against taking away vested right will not apply in this case inasmuch as under law it is the benamidar in whose name the the property from him which right has now been ceased property stands, and law only enabled the real owner to recover by the Act. In '* one sense there was right to recover or resist in the real owner against the benamidar. Ubi jus ibi remedium. Where there is right, there is remedy. Where the remedy is barred, the right is rendered ·-1 unenforceable. In this sense it is disabling statute. All the real [owners are equally affected ][by ][the disability provision irrespective of ]the time of creation of the right. right is legally protected interest. ,.f'-The real owner's right was hitherto protected and the Act has resulted in removal of that protection.When the law nullifies the defences available to the real owner in recovering the benami property from the benamidar the law must apply irrespective of the time of the benami transactions. The expres-sion "shall lie" in section 4(1) and "shall be allowed" in section 4(2) are prospective and shall apply to present (future stages) and.future suits, claims or actions only. This leads us to the question whether there was present suit between the plaintiff-respondent and the defendant-appellant on the date of the law coming into force. We have noted the dates of filing the suit and judgments of the courts below. On the date of the section 4 of the Act coming into force, that is, 19th May 1988 this appeal was pending and, of course, is still pending. Can the suit itself be said to be pending?

Lachmeshwar v. Keshwar Lal, A.LR. 1941 F.C. 5 is an authority ~-r-F for holding that the hearing of appeal under the procedural law of India is· in the nature of re-hearing and therefore in moulding the relief to be granted in case on appeal, the appellate court is entitled to take into account even facts and events which have come into existence after the decree appealed against. Consequently, the appellate court is competent to take into account legislative changes since the decision under appeal Was given and its powers are not confined only to see whether the lower court's decision was correct according to the law as -J.~ it stood at the time when its decision was given. Once the decree of the ' . High Court has been appealed against, the matter became sub judice again and thereafter this court had seisin of the whole case, though for certain purposes e.g., execution, the decree was regarded as final and the courts below retained jurisdiction in that regard. This was followed

-J.~ ' .

· MITHILESH KUMAR! v. P.B. KHARE (SAIKIA, J.)

in Shyabuddinsab v. The Gadag-Betgeri Municipal Borough, (1955] 1 S.C.!'. 1268 where after the judgment of the High Court and after gn of special leave by this court the legislation .was passed, and it WdS applied by this Court. Their lordships, referring to The King v. The General Commissioner of Income Tax, [1916] 2 K.B. 249 and Mukharjee Official Receiver v. Ramratan Kaur, [1935] L.R. 63 I.A. 47 rejected the contention that unless there are express words in the amending statute to the.effect that the amendment shall apply to pend-ing proceedings, it cannot affect the proceedings. In Dayawati v. In~ derjit, (1966] 3 S.C.R. 275 it has been held that the word 'suit' includes an appeal from· the judgineiit in the suit. The only difference between suit· and an appeal is that an appeal only reviews and corrects and proceedings in cause already constituted but does not create the cause. In Mohan/al Jain v. His Highness Maharaja Shri Man Singh, [1962] 1 S.C.R. 702 it was observed that "A person is "sued" not only when the plaint is filed against him; but is "stied" also when the suit remained pending against him. The word "sued" covers the entire proceedingjn an actio!I." In AmerjitKaur v. Pritam.Singh, (1975] 1 S.C.R. 605 it has been held· that an appeal is rehearing and in moulding relief to be granted in case on appeal, the appellate court is entitled to take into account even facts and events which have come into existence after the passing of the decree appealed against.".

For the respondent it is submitted that right of the parties to : suit would be determined on the basis of rights available to them on the date. of filing (!f the suit. Reliance is· placed on Nand Kishore Marwtih v. Samundri Devi, (1987] 4 S.C.C. 382 .. That however.was case of eviction where the rights of the parties on the date of suit were material unlike in this case where subsequent legislation has nullified . th': defences of benami holders. That case is, therefore, distin-gmshable. ., . . . . . , . . --. . . . ' -· -, .. .. Counsel for the respondent lastly submits that ·nobody should be all~wed to suffer for fault of the court. As the maxim ·goes, actus curiae neininem gravabit. Nobody should sufferfor an act of the court.· However, the delay in disposal of an appeal cannotbe termed an action of the court. The consequence is that the plaintiff-respondent's suit or action cannot be. decreed under the.law; and hence the decree 'i' passed by .thejowei: courts is annihiliated and, the suit dismiss~d. · ·

In the result, this appeal is allowed· in the manner. indicated above. Under the peculiar facts and drciimstances of the case, we make no order as to costs.· -·- · ·- · -·