- (1.)The plaintiff is grand -son of Gurbux Singh. Respondent No. 1 is the daughter of said Gurbux Singh. The plaintiff filed a suit for declaration and permanent injunction alleging that property No. B- 10/16 Rajouri Garden, New Delhi was self acquired by Gurbux Singh and Smt. Sushila Kumari was the benami owner. According to the plaintiff the property was purchased in the name of Sushila Kumari by Gurbux Singh some time in the year 1962. At that time Sushila Kumari was divorcee. Along with the suit an application under Order 39 Rules 1 and 2 Civil Procedure Code was filed inter alia praying that Sushila Kumari and defendants 2 and 3 be restraining from selling, alienating or in any manner changing the structure of the said property. Defendants 2 and 3 are also grand children of Gurbux Singh. The said application was dismissed by the trial court after prima facie coming to the conclusion that the suit was barred under, the provisions of Benami Transactions (Prohibition) Act, 1988. The first appeal filed by the petitioner was dismissed by Additional Senior Sub Judge Delhi. Aggrieved by the said order the present revision petition has been filed courts below have come to the prima facie conclusion that a divorcee daughter would not come within the meaning of the words "unmarried daughter" as provided in Section 3(2) of the Act.
(2.)Learned counsel for the petitioner relying upon the dictionary meaning of the words "unmarked" in Webster's third New International Dictionary (Vol. II) and. The Shorter Oxford English Dictionary Vol. I. contends that the terms unmarried daughter as used in section 3(2) includes a divorcee daughter and submits that the purchase of property made by Gurbux Singh in name of his divocre daughter, namely, respondent No. 1 would not be hit by the provision of the Act. I do not agree. The term "unmarried daughter" used in Section 3(2) in my opinion, has to be given its natural meaning i.e. not married at all. The decision of Lahore High Court in 1932 Lahore Page 1 under the provisions of Workmen Compensation Act does not throw any light, for determining the terms "unmarried daughter" as used in section 3(2) of the Act. The phenomena of the divorced daughter was well-known when the Act was enacted but the legislature wisely used the term unmarried daughter in section 3(2). Assuming the interpretation of the term unmarried daughter as canvassed by the petitioner is correct then also, in my view, the petitioner would have no case, as Section 3, inter alia, deals with the penal consequences of the benami transaction and contains prohibition from entering into benami transaction and is not relevant for considering bar of suit to recover property held benami. Section 3(1) prohibits any person from entering into any benami transaction. Section 3(2) provides that the provisions of sub-section 1 shall not 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 said property had been purchased for the benefit of the wife or the unmarried daughter. Section 3(3) provides that person entering into benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. For determining, whether suit to recover property held benami is maintainable or not, the relevant provision of Section 4 of the Act Section 4(1) provides that no suit, claim or action to enforce 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. Under Section 4(2) defence based on any right in respect of any property held benami is barred. Section 4(3) of the Act is in the nature of exception and provides that Section 4(1) and (2) will not apply to cases falling under clauses (a) & (b). It is not the case of the plaintiff on the plaintiff in the complaint that it was Joint Hindu Family property. Thus Section 4(3) would not apply. The bar contained in section 4(1) would apply to a suit to property purchased for the benefit of the wife of the unmarried daughter. Thus assuming extended meaning as contended by counsel for the petitioner can be given to the words "unmarried daughter" then too, in view of Section 4(1), prima facie, the suit to recover the property purchased for the benefit of such unmarried daughter, would be barred. Such suit would not come within the purview of section 4(3) of the Act. Reading Sections 3 and 4 together shows that though Section 3 does not make a property purchased in the name of wife or unmarried daughter as an offence, but, at the same time, the person purchasing that property has not been given a right to recover such property from the wife or the unmarried daughter.
(3.)The conclusion in this judgment have been arrived at for the purpose of decision of the application of the petitioner filed under Order 39 Rules 1 and 2 Civil Procedure Code and will not affect the substantive rights of the parties pending adjudication in the suit.
There is no infirmity in the impugned orders. The revision petition is.