C. Karupakara Rao vs R. Subba Rao and another

Govardhan J.

The plaintiff is the appellant.

The plaintiff has filed the suit for declaration that he is the owner of a sum of Rs. 35,000 deposited in the second defendant bank, in fixed

deposit in the name of the first defendant and to pay the same to the plaintiff with interest contending that the plaintiff obtained a pay order in favour

of the first defendant from the Bank of America since the first defendant was going away to Bombay and deposited the said pay order with the

second defendant in fixed deposits.

The first defendant in his written statement has stated that he was in Madras only and did not go to Bombay and the amount in the fixed deposit

belongs to him and he has got valid title to the same.

The second defendant in a separate written statement has contended that the plaintiff handed over a pay order drawn in favour of the first

defendant for Rs. 35,000 with a request to open a fixed deposit account in the name of the first defendant and also requested the second

defendant to hand over necessary forms for getting the signature of the first defendant and in good faith, the second defendant has opened a fixed

deposit account for Rs. 35,000 in the name of the first defendant and the fixed deposit receipt is with them and the amount has not been paid either

to the plaintiff or to the first defendant and they will abide by any order passed by the trial court.

On a consideration of the evidence placed before the court, the IXth Assistant Judge, City Civil Court, has come to the conclusion that the

plaintiff has failed to establish that he is the owner of the amount in fixed deposit and, therefore, he is not entitled to the declaration and for other

reliefs.

Aggrieved over the same, the plaintiff has come forward with this appeal.

The only point that arises for consideration is whether the amount available with the second defendant in fixed deposit is the amount of the

plaintiff?

The plaintiff pleads that the amount in the fixed deposit in the second defendant bank even though stands in the name of the first defendant

actually the amount belongs to him and the first defendant is only a name lender and he is benami for the plaintiff and, therefore, he is entitled for the

declaration and injunction. The said contention of the plaintiff is not a tenable one subsequent to the passing of the Benami Transactions

(Prohibition) Act (45 of 1988). As per section 4 of the abovesaid Act, 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. The decision in Mithilesh Kumar and Another Vs. Prem Behari Khare, , has laid down that the provisions of section 4

relates to past transaction as well. The apex court has held that the expression ""any property held benami"" is not limited to any particular time, date

or duration, and once the property is found to have been held benami, no suit, claim or action, to enforce any right in respect thereof shall lie.

Therefore, even assuming that the amount in the deposit of the second defendant is found to be held benami in the name of the first defendant, the

present suit for declaration cannot be maintained as per section 4 of the Benami Transactions (Prohibition) Act. The statute has declared benami

transactions to be unenforceable. Therefore, the suit cannot be maintained. The trial court has dismissed the suit and I do not find any reason to

interfere with the same subsequent to the passing of the Benami Transactions (Prohibition) Act.

The appeal is, therefore, dismissed. No costs.