Andhra Pradesh H.C : Delete : ‘is only benamidar and he is real owner and in fact he’ and substitute : ‘in a fiduciary capacity and title stood in her name for the benefit of the plaintiff and the plaintiff

High Court Of Andhra Pradesh

A. Kodandachari vs. Radhamma Alias Kanthamma

Neeladri Rao, J.

IT Ref. No. 2 of 1975

14th February, 1990

NEELADRI RAO J.:
The plaintiff in O. S. No. 329 of 1984, on the file of the First-Additional District Munsif, Chittoor, is the revision petitioner. The suit was filed for declaration of title and some other consequential reliefs which are not relevant for disposal of this revision petition. The plaintiff filed I.A No. 101 of 1989 under Order 6, r. 17, C.P.C., 1908, praying for amendment of the plaint. The amendment which is sought is as under : “Delete : ‘is only benamidar and he is real owner and in fact he’ and substitute : ‘in a fiduciary capacity and title stood in her name for the benefit of the plaintiff and the plaintiff’.”The suit was presented in 1983. The Benami Transactions (Prohibition) Act, 1988, (hereinafter referred as “the Act”), had come into force during the pendency of this suit. It was held by the Supreme Court in Mithilesh Kumari vs. Prem Behari Khare (1989) 76 CTR (SC) 27 : (1989) 177 ITR 97 (SC) : TC 71R.225, that the above Act was retroactive and thus it is equally applicable to benami transactions that had taken place prior to the commencement of this Act.

It is evident that as per the proposed amendment, the case of the plaintiff is that it comes under s. 4(3)(b) of the Act. Before the commencement of the Act, there was no need for the plaintiff to specifically mention whether the benami transaction was of a category coming under s. 4(3)(b) of the Act. There is no inconsistency in the stand of the plaintiff. By the proposed amendment, the plaintiff pleads that this is particular type of benami transaction which comes under s. 4(3)(b). It does not amount to a new case.

4. At this stage, it is not necessary to consider whether in fact the said plea of the plaintiff is true or not. In view of the above the defendants have to be given an opportunity to file an additional written statement and then a necessary additional issue has to be framed and on the basis of the evidence, the said issue has to be decided. So, the observations that were made by the trial Court in regard to the merits of the proposed plea of the plaintiff have to be set aside and the findings in regard to the same do not bind either side in the disposal of the suit.

5. In the result, the civil revision petition is allowed. The impugned order is set aside. I. A. No. 101 of 1989, is allowed. The defendants have to be given an opportunity to file an additional written statement, and then the case has to be proceeded with, in accordance with law.

No costs.

[Citation : 187 ITR 616]

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