Thursday, 26 March 2020

Whether small cause court has jurisdiction to try the suit if the plaintiff takes inconsistent pleas of gratuitous licensee and trespasser?

Issue No. II:

Are there any contradictory pleas in the plaint to non-suit the plaintiff?

22. The petitioners here maintain that Vishala has taken contradictory pleas in the plaint. Those pleas are mutually destructive; they, in fact, denude the Small Cause Court of any jurisdiction to try the case.

23. First, I will refer to the authorities Vasanthi has relied on. In Prabhudas Damodar Kotecha, the Supreme Court has held that the Legislature having once conferred exclusive jurisdiction on one Court in all the suits between licensee and licensor, it would not have carved out any exception to keep gratuitous licensee alone outside its jurisdiction. Let me consider the next one. In another case, the High Court declared a sub-tenant trespasser and ordered his eviction. In that context, in Hiralal Vallabhram, the Supreme Court has held that once an occupant is a trespasser, the Civil Court, not the High Court, has the jurisdiction to order his eviction.

24. Parties to a suit are, it is true, entitled to make contradictory pleas in the alternative in their pleadings. So held the Supreme Court in Chapsibhai Dhanjibhai Danad. Then, on facts, it has observed that the appellant did not attempt, during the trial, to establish accession by adverse possession. On the contrary, he wanted to make out a case of easementary rights by prescription. That plea, the Court held, was incompatible with the appellant's claim of adverse possession.

25. In Udhav Singh v. Madhav Rao Scindia [MANU/SC/0302/1975 : [1976] 2 SCR 246], the Supreme Court has held that any ingenious method of construction after compartmentalisation, dissection, segregation, or inversion of the language of the pleadings runs counter to the cardinal cannon of interpretation. In other words, a pleading must be read as a whole to ascertain its true import. It is not permissible to single out a sentence or a passage, and to read it out of the context--in isolation. Udhav Singh has further held that "it is the substance and not merely the form that has to be looked into."

26. In Ram Sarup Gupta (Dead) by Lrs. v. Bishun Narain Inter College [MANU/SC/0043/1987 : [1987] 2 SCC], the Supreme Court has further observed that the pleadings should receive liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.

27. Coming back to the facts, I may note that in para 10 of the plaint, Vishala has pleaded that she moved to occupy the flat in February 1969. Her sister and brother-in-law followed her to the suit flat on the ground that their residence was uncomfortable and inadequate. Given their relationship, she could not object. Then, she pleads in para 26 that they are "in permissive occupation of the suit flat" along with her from 1969 to 1986, when Vishala sought their eviction.

28. In para 31, Vishala has pleaded that her sister turned dishonest and falsely advanced the benami-story. She again asserts that until "11.6.1986 the defendants were in permissive occupation. . . without any payment of charge." She has further pleaded that "from 11.6.1986, the defendants [have been] virtually trespassers in the suit flat and are hence liable to [be] vacate[d]."

29. True, when the suit was transferred, Vishala, it seems, added to the prayer clause that she is "the licensor and the defendants are the gratuitous licencees." This assertion, though, is not without foundation in the pleadings. Besides, Vishala has described her sister and brother-in-law as "virtual trespassers." In Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. [MANU/SC/1047/2004 : (2005) 1 SCC 705], the Supreme Court has held that "after determination of the tenancy, the position of the tenant is akin to that of a trespasser." Indeed, in that sense, Vishala has used the expression trespasser. This expression, I am afraid, neither contradicts nor confounds Vishala's pleas in the pleadings.

30. In Nagin Mansukhlal Dagli, the plaintiff pleaded that the licence granted to the defendant ended. So he contended that the defendant's possession was wrongful and illegal, and was "that of a trespasser." The plaintiff also wanted the court to declare the defendant a "trespasser." In this context, a Division Bench of this Court has examined whether a Small Cause Court has jurisdiction to entertain the suit for eviction.

31. Is the suit really in substance a suit for a declaratory decree or an injunction, or a suit for recovery of possession of immovable property camouflaged in the guise of a suit for a declaration and injunction? To answer this question, Nagin Mansukhlal Dagli has held that "it is the determination of the issue whether the licence has come to an end or not which would give the right to the plaintiff to obtain the relief of possession." The declaration sought does not, according to it, change the real nature of the suit. Finally, Nagin Mansukhlal Dagli has interpreted Section 41 of the Presidency Small Cause Courts Act, 1882, and held that this provision speaks of "all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay". Significantly, the words used in Section 41 are "suits relating to the recovery of possession" and not "suits for possession". Then, it has concluded that despite the plaintiff's prayer for a declaration that the defendant is a trespasser, the Small Cause Court can try the suit.

32. After all, litigation is not mere logomachy--a fight over words; it is a fight over intentions. The intentions result in deeds, and the deeds get described in words. The words, as they describe the deeds, take their roots from the intentions.

33. An occupier may be a 'tenant', a licencee included, or a 'trespasser', one with a positive connotation and the other with a negative connotation. And 'occupier', on the other hand, is value neutral. Every word has a penumbral meaning, besides its core content. We do not, nor can we, always weigh words in the semantic scales; of course, they never remain in the prescriptive bounds, too. I may recall Anthony Burgess's coruscating comment on the imprecision of the language: Language has, in fact, many of the qualities possessed by the human beings themselves: it tends to be emotional when pure reason is required, it is sometimes unsure of what it means, it changes from meaning, sound. It is slippery, elusive, hard to fix, define, delimit.1 Glanville Williams classifies as a common error 'the idea that the words are somehow important of themselves, and irrespective their symbolic function."2 Edward de Bono may be right when he says "words [in a sense] are encyclopedias of ignorance because they freeze perceptions at one moment in history and then insist we continue to use these frozen perceptions when we should be doing better."3

34. So I hold that Vishala's suit pleadings are not contradictory; they do not denude the Small Cause Court of its jurisdiction, either. Vasanthi and others are not trespassers in the statutory sense, though they may be in the sense Atma Ram Properties used.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 36 of 2018

Decided On: 17.09.2019

Vasanthi Shridhar Bangera Vs. Vishala Bokapatna Laxman

Hon'ble Judges/Coram:
Dama Seshadri Naidu, J.


Citation: AIR 2020 Bom 31


Introduction:

1. It is a tale of two sisters. Plaintiff Vishala Bokapatna Laxman is the younger sister of Vasanthi Shridhar Bangera. Vishala sued her elder sister and brother-in-law for eviction. The Suit was decreed. Vasanthi, the elder sister, and her husband appealed but without success. In the meanwhile, her husband died. So, along with her children, Vasanthi filed this Civil Revision Application.

Facts in Brief:

2. I may touch upon the facts briefly as are relevant for us to decide this Civil Revision Application--under Section 115 of Code of Civil Procedure, 1908 (CPC). As Vishala was employed with the State Trading Corporation, she had an opportunity of buying a house at a concessional rate. She did buy the house, and it is the suit subject. Who contributed the sale consideration has been a bone of contention, though. What is not disputed, however, is that both the sisters were initially living together in that house.

3. At any rate, initially, in June 1986, Vishala issued a quit notice to Vasanthi and her brother-in-law. Later, she filed Original Suit No. 4842 of 1994 before this Court. But this Court held the jurisdiction lay with the Small Cause Court. It accordingly transferred the suit to the Small Cause Court, Bombay. The matter transferred, it was numbered as L.E.& C Suit No. 96/125 of 2012. During the trial, Vishala got herself examined as PW1, besides examining one more witness. On the other hand, Vasanthi and her husband, as the defendants 1 and 2, examined five witnesses, Vasanthi being the DW1. Vishala claimed exclusive ownership and wanted her sister and brother-in-law to vacate. On the other hand, Vasanthi maintained that her family contributed the sale consideration; so, Vishala is only a name lender--an ostensible owner. Eventually, in October 2015, the trial Court decreed the Suit.

4. Vasanthi and her husband filed an intra-court appeal, P.S.C.C. Appeal No. 23 of 2015, before the Appellate Bench of the Small Cause Court. Mumbai. But in August 2017, the Appellate Bench, too, dismissed the appeal. As her husband died in the meanwhile, Vasanthi with her two daughters has filed this Civil Revision Application.

Submissions:

Applicants:

5. In the above factual backdrop, Dr. Abhinav Chandrachud, instructed by Shri M.V. Kini and Shri Arsh Mishra, for the applicants, has first demarcated the bounds of his submissions. As it is a revision, he wants to confine himself to the question of law, besides the findings which are perverse, thus requiring this Court's intervention, as he puts it, even under Section 115 of CPC. With this prefatory submission, Dr. Chandrachud has submitted that the judgments of the Courts below suffer from at least two fatal flaws.

6. To elaborate, Dr. Chandrachud has submitted that Vishala, first, filed a suit before this Court, alleging that the defendants are trespassers. This Court refused to entertain the suit; instead, it required Vishala to pursue her case before the Small Cause Court, Bombay. Despite that, Vishala did not amend the pleadings to bring the suit in tune with the statutory requirements for the Small Cause Court to have jurisdiction. On the contrary, she has, as an afterthought, added a couple of sentences, just above the prayer portion--that the defendants are gratuitous licensees--and proceeded with the suit before the Small Causes Court.

7. According to Dr. Chandrachud, Vishala's describing her sister and brother-in-law as gratuitous licensees is not only inconsistent, but also contradictory to the rest of her pleadings. At any rate, he contends Vishala has not, during the trial, elected any particular plea as a plank for eviction. Dr. Chandrachud maintains that because the pleadings also describe the defendants as trespassers, the Small Cause Court lacks jurisdiction to entertain a suit.

8. Dr. Chandrachud has also contended that only the Civil Court could rule on a trespasser's eviction. So if a court inherently lacks jurisdiction, the decree it may pass will become a nullity. According to him, the question of maintainability can be raised at any stage, as it is a pure question of law. To buttress his contentions, Dr. Chandrachud has relied on Prabhudas Damodar Kotecha v. Manhabala Jeram Damodar [MANU/SC/0797/2013 : (2013) 15 SCC 358], Hiralal Vallabhram v. Kashorbhai Lalbhai [MANU/SC/0337/1967 : AIR 1967 SC 1853], Chapsibhai Dhanjibhai Danad v. Purushottam [MANU/SC/0564/1971 : 1971(2) SCC 205].

9. Then, Dr. Chandrachud has addressed the question whether Vishala held the property benami for her elder sister. And, if so, what is the effect of the Benami Transactions (Prohibition) Act, (Prohibition) Act, 1988 ("Benami Transaction Act") on the transaction? Plainly put, Dr. Chandrachud has articulated on whether that Act is prospective or retrospective. In this context, he contends that it is a substantive Act affecting the vested interests of property holders. So, it ought to be only prospective.

10. First, Dr. Chandrachud has drawn my attention to the date when the defendants filed the written statement: 17th December 2012. Then, he has submitted that the plaintiff herself executed "Exhibit 76" declaring that she had been only a benamidar and that the true owners were her sister and brother-in-law. In this context, Dr. Chandrachud submits that this document being 30 years old, it enjoys a statutory presumption about its correctness. He has emphasized that Vishala did acknowledge that the signature on the document looked like hers. To support his contentions, he has relied on R. Rajagopal Reddy v. Padmini Chandrasekharan [MANU/SC/0061/1996 : (1995) 2 SCC 630], Canbank Financial Services Ltd. v. Custodian [MANU/SC/0724/2004 : (2004) 8 SCC 355], Union of India v. Indusind Bank Limited [MANU/SC/1016/2016 : (2016) 9 SCC 720], District Collector, Vellore District v. K. Govindaraj [MANU/SC/0106/2016 : (2016) 4 SCC 763].

11. According to Dr. Chandrachud in the light of K. Govindaraj, a co-equal Bench decision, the proposition in Rajagopal Reddy cannot be good law.

Respondent:

12. Shri B. K. Bali, the learned counsel for the respondent-plaintiff, on the other hand, has submitted that Vishala has pleaded and elaborated about the relationship between her and her sister's family. According to him, in the plaint she has set out how her sister's family secured possession of the property, how they continued to be in possession of the property, and in what circumstances Vishala was constrained to ask them to vacate and handover the possession. In sum, Shri Bali contends that the plaint must be read comprehensively. That is, stray sentences in the pleadings cannot be taken out of context and read in isolation. He has also drawn my attention to specific paragraphs, especially paras 10, 17, and 31 of the plaint.

13. Shri Bali has submitted that the expression 'trespassers' was employed only in the context that once the occupant is asked to quit, but remains in possession even thereafter, his possession must be treated as that of a trespasser. To elaborate, Shri Bali has submitted that Vishala has clearly established that Vsanthi's family was in permissive possession of the property. And this Court, according to him, appreciated that from the pleadings in the suit filed before it. In this context, Shri Bali submits that when the Court transferred the suit to another forum, the defendants never objected to it; now, they are estopped. About the alleged inconsistency in Vishala's evidence, Shri Bali submits that though she is an educated lady, she has not been well versed with the legal terminology--much less with its intricacies. In fact, she has explained, Shri Bali stresses, in her cross-examination what she has understood by the expression "trespasser".

14. At any rate, Shri Bali strenuously contends that there is a clear relationship of licensee and licensor or gratuitous licensee between the parties. As it has been properly pleaded in the plaint, the courts below have correctly appreciated the facts and law. And, therefore, those findings need no interference. About the prospective and retrospective effect of the Benami Transaction Act, Shri Bali submits that even Section 4, in its entirety, only deals with whether a person can take defence about the nature of the property. But as that provision had been enforced, much before Vishala's filing the suit, the nature of the property stood altered. So Vasanthi's defence under Section 4 of the Act hardly affects those substantial rights. The petitioner's contentions on this count, he asserts, will not stand the legal scrutiny. To support his plea, Shri Bali has relied on Nagin Mansukhlal Dagli Vs. Haribhai Manibhai Patel [MANU/MH/0179/1980 : AIR 1980 Bombay 123]

15. Heard Dr. Abhinav Chandrachud, instructed by Shri M.V. Kini and Shri Arsh Mishra, for the applicants; and Shri B.K. Bali with Ms. Anju Singh, instructed by Shri Bali Associates, for the respondent.

Issues:

Issue No. I.

The plaintiff filed a suit before one forum and put the defendant on notice, but that forum ruled that it had no jurisdiction. Instead, it transferred the file to the forum which, it felt, has the jurisdiction. Does this estop the defendant from questioning the plaintiff's choice, if it were, of forum?

Issue No. II:

The plaintiff has pleaded that the defendants are trespassers; she has also pleaded that they are gratuitous licencees. Each plea, to the exclusion of the other, has a separate forum for adjudication. Then, are these two pleas fatal to the suit's sustainability, contradictory as they may seem?

Issue No. III:

The defendants have claimed that they contributed the sale consideration but kept the property in the plaintiff's name. They assert that the plaintiff has admitted this arrangement. Then came the Benami Transaction Act. It would upset the apple cart of an arraignment if it was retrospective. Then, is the Benami Prohibition Act retrospective?

Issue No. IV:

The defendants refer to the plaintiff's evidence and maintain that the plaintiff has admitted their case. Has she? Then, in any event, can this Court go into that question in this revision?

Discussion:

Issue No. I:

16. This issue concerns the Small Cause Court's inherent jurisdiction to entertain the suit. Vishala, first, invoked this Court's original jurisdiction and filed the suit before it. Vasanthi and her husband entered appearance. Before they could file their defence, this Court, on its own, reckoned that the suit ought to be tried by the Small Cause Court. So it sent the suit to the Small Cause Court. The order, in fact, reads:

"This suit is for recovery of possession and mesne profits from gratuitous licensee. The civil court has no jurisdiction to try the suit. Papers and proceedings are sent to the small cause court, Bombay, for continuation of trial."

17. From the above order, I gather this Court has not returned the plaint; rather it has transferred the suit--and it ordered the continuation of the trial, at that. Had it been a return of plaint, it would have been governed by Order 7, Rule 10 of CPC. Now, therefore, we need not labour on that provision. Indeed, the transfer of a suit, in general, is governed by Sections 22 to 25 of CPC.

18. For a suiter to institute a suit, there may be more than one place for him to go to because the cause of action may have territorially arisen at different places. As the dominus litis, he may choose one of many places. Then, the defendant, for acceptable reasons, may apply to have the suit transferred to any other place having jurisdiction. Thus, Section 22 is invoked always by the defendant. Section 23 provides for the mechanism to make Section 22 operational. Section 25 deals with the Supreme Court's power to transfer suits and other proceedings. And we are not concerned with that.

19. Section 24, on the other hand, confers general powers of transfer and withdrawal on the High Court and District Court. Either court can exercise that power on the application of a party to the suit or on its own. Then, it can "transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same." While transferring the case, the District or the High Court may issue special directions. In the absence of those directions, the transferee court may "either retry [the suit] or proceed from the point at which it was transferred."

20. Here, as I have already noted, this Court invoked Section 24 of CPC and transferred the case. Then, I must hold that the transfer was effected when the defendants were on record. Put differently, the defendants were parties to that decision of transfer. But, still, the defendants are not estopped from questioning that transfer at any stage. First, neither any court nor any consenting party can confer jurisdiction on a court which otherwise lacks it; second, the inherent lack of jurisdiction goes to the root of the matter; and third, the order or the judgment the transferee court may render is a nullity--a product of coram non judice. That is, the proceedings are before a judge but not the proper one, or one who cannot take legal cognizance of the matter. So the judgment, too, suffers for want of legitimacy.

21. As a result, I hold that the petitioners, as the defendants, suffer no legal hurdle to challenge the judgment the Small Cause Court passed as one without jurisdiction.

Issue No. II:

Are there any contradictory pleas in the plaint to non-suit the plaintiff?

22. The petitioners here maintain that Vishala has taken contradictory pleas in the plaint. Those pleas are mutually destructive; they, in fact, denude the Small Cause Court of any jurisdiction to try the case.

23. First, I will refer to the authorities Vasanthi has relied on. In Prabhudas Damodar Kotecha, the Supreme Court has held that the Legislature having once conferred exclusive jurisdiction on one Court in all the suits between licensee and licensor, it would not have carved out any exception to keep gratuitous licensee alone outside its jurisdiction. Let me consider the next one. In another case, the High Court declared a sub-tenant trespasser and ordered his eviction. In that context, in Hiralal Vallabhram, the Supreme Court has held that once an occupant is a trespasser, the Civil Court, not the High Court, has the jurisdiction to order his eviction.

24. Parties to a suit are, it is true, entitled to make contradictory pleas in the alternative in their pleadings. So held the Supreme Court in Chapsibhai Dhanjibhai Danad. Then, on facts, it has observed that the appellant did not attempt, during the trial, to establish accession by adverse possession. On the contrary, he wanted to make out a case of easementary rights by prescription. That plea, the Court held, was incompatible with the appellant's claim of adverse possession.

25. In Udhav Singh v. Madhav Rao Scindia [MANU/SC/0302/1975 : [1976] 2 SCR 246], the Supreme Court has held that any ingenious method of construction after compartmentalisation, dissection, segregation, or inversion of the language of the pleadings runs counter to the cardinal cannon of interpretation. In other words, a pleading must be read as a whole to ascertain its true import. It is not permissible to single out a sentence or a passage, and to read it out of the context--in isolation. Udhav Singh has further held that "it is the substance and not merely the form that has to be looked into."

26. In Ram Sarup Gupta (Dead) by Lrs. v. Bishun Narain Inter College [MANU/SC/0043/1987 : [1987] 2 SCC], the Supreme Court has further observed that the pleadings should receive liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.

27. Coming back to the facts, I may note that in para 10 of the plaint, Vishala has pleaded that she moved to occupy the flat in February 1969. Her sister and brother-in-law followed her to the suit flat on the ground that their residence was uncomfortable and inadequate. Given their relationship, she could not object. Then, she pleads in para 26 that they are "in permissive occupation of the suit flat" along with her from 1969 to 1986, when Vishala sought their eviction.

28. In para 31, Vishala has pleaded that her sister turned dishonest and falsely advanced the benami-story. She again asserts that until "11.6.1986 the defendants were in permissive occupation. . . without any payment of charge." She has further pleaded that "from 11.6.1986, the defendants [have been] virtually trespassers in the suit flat and are hence liable to [be] vacate[d]."

29. True, when the suit was transferred, Vishala, it seems, added to the prayer clause that she is "the licensor and the defendants are the gratuitous licencees." This assertion, though, is not without foundation in the pleadings. Besides, Vishala has described her sister and brother-in-law as "virtual trespassers." In Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. [MANU/SC/1047/2004 : (2005) 1 SCC 705], the Supreme Court has held that "after determination of the tenancy, the position of the tenant is akin to that of a trespasser." Indeed, in that sense, Vishala has used the expression trespasser. This expression, I am afraid, neither contradicts nor confounds Vishala's pleas in the pleadings.

30. In Nagin Mansukhlal Dagli, the plaintiff pleaded that the licence granted to the defendant ended. So he contended that the defendant's possession was wrongful and illegal, and was "that of a trespasser." The plaintiff also wanted the court to declare the defendant a "trespasser." In this context, a Division Bench of this Court has examined whether a Small Cause Court has jurisdiction to entertain the suit for eviction.

31. Is the suit really in substance a suit for a declaratory decree or an injunction, or a suit for recovery of possession of immovable property camouflaged in the guise of a suit for a declaration and injunction? To answer this question, Nagin Mansukhlal Dagli has held that "it is the determination of the issue whether the licence has come to an end or not which would give the right to the plaintiff to obtain the relief of possession." The declaration sought does not, according to it, change the real nature of the suit. Finally, Nagin Mansukhlal Dagli has interpreted Section 41 of the Presidency Small Cause Courts Act, 1882, and held that this provision speaks of "all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay". Significantly, the words used in Section 41 are "suits relating to the recovery of possession" and not "suits for possession". Then, it has concluded that despite the plaintiff's prayer for a declaration that the defendant is a trespasser, the Small Cause Court can try the suit.

32. After all, litigation is not mere logomachy--a fight over words; it is a fight over intentions. The intentions result in deeds, and the deeds get described in words. The words, as they describe the deeds, take their roots from the intentions.

33. An occupier may be a 'tenant', a licencee included, or a 'trespasser', one with a positive connotation and the other with a negative connotation. And 'occupier', on the other hand, is value neutral. Every word has a penumbral meaning, besides its core content. We do not, nor can we, always weigh words in the semantic scales; of course, they never remain in the prescriptive bounds, too. I may recall Anthony Burgess's coruscating comment on the imprecision of the language: Language has, in fact, many of the qualities possessed by the human beings themselves: it tends to be emotional when pure reason is required, it is sometimes unsure of what it means, it changes from meaning, sound. It is slippery, elusive, hard to fix, define, delimit.1 Glanville Williams classifies as a common error 'the idea that the words are somehow important of themselves, and irrespective their symbolic function."2 Edward de Bono may be right when he says "words [in a sense] are encyclopedias of ignorance because they freeze perceptions at one moment in history and then insist we continue to use these frozen perceptions when we should be doing better."3

34. So I hold that Vishala's suit pleadings are not contradictory; they do not denude the Small Cause Court of its jurisdiction, either. Vasanthi and others are not trespassers in the statutory sense, though they may be in the sense Atma Ram Properties used.

Issue No. III:

35. The defendants have claimed that they contributed the sale consideration but kept the property in the plaintiff's name. But Benami Transaction Act upsets this arrangement--if at all there were any arrangement. Then, is the Benami Prohibition Act retrospective?

36. In R. Rajagopal Reddy, the question was whether Section 4(1) of the Benami Transaction Act can be applied in a claim against the ostensible owner or the benamidar by the real owner, before Section 4(1) of the Act was enforced. In fact, various suits had been filed years before Section 4(1) of the Act came into force. These proceedings had been pending at different stages before courts at every level. So the question was whether these pending proceedings should get affected by the sweep of Section 4(1), and whether such suits should be dismissed, as laid down by that section. A Bench of three Judges decided this question on a reference.

37. R. Rajagopal Reddy, in principle, accepts that the Act is prospective. But it takes the date of the defendant's written statement in a suit filed by the benamidar as the reckoning point. It observes, "if a suit is filed by a plaintiff who claims in his favour and holds the property in his name, once Section 4(2) applies, no defence will be permitted or allowed in any such suit, claim or action by or on behalf of a person claiming to be the real owner of such property held benami." It then, illustratively, holds that a suit might have been filed before 19.5.1988, but if no written statement had been filed by 19.5.1988, when Section 4(2) became operative, then no defence would be allowed to be filed.

38. Following Rajagopal Reddy, later Canbank Financial Services Ltd., has held that the Benami Transaction Act is not a piece of declaratory or curative legislation. It creates substantive rights in benamidars' favour and destroys the substantive rights of real owners who are parties to such transactions and for whom new liabilities are created by the Act. In that context, it holds that a "statute which takes away the rights of a party must be strictly construed." But this decision has not disturbed Rajagopal Reddy's ratio: the date of the written statement as the reckoning point.

39. Here, the suit was filed way beyond 1988--in the middle of 2012; and the written statement, too, was filed in December 2012. But the petitioners contend that the approach R. Rajagopal Reddy has adopted is wrong. According to them, it was later disapproved by the same court: the Supreme Court. We shall see. The petitioners want to counter R. Rajagopal Reddy with K. Govindraj.

40. In K. Govindraj, the Government of Tamil Nadu amended the Minor Mineral Concession Rules. The amended rule provided that the period for quarrying stone in virgin areas, which had not been subjected to quarrying earlier, shall be ten years and for other areas five years. The respondents had their grants before the amendment. But they pleaded that the amendment is retrospective and that they should have the benefit.

41. In answer, K. Govindraj has held that the Legislature can legislate prospectively or retrospectively. Yet the general rule is that in the absence of the enactment specifically mentioning that the legislation concerned or the legislative amendment is retrospective, it is to be treated as prospective. It would be more so when the statute affects the substantial rights. Even in a statute dealing with substantive rights, wherever it deals with merely a matter of procedure, that part of the statute is "presumed to be retrospective unless such a construction is textually inadmissible." On the contrary, a particular provision in a procedural statute may be substantive and, then, it cannot be retrospective.

42. In IndusInd Bank Ltd., too, a two-Judge Bench of the Supreme Court has reiterated that any substantive law shall operate prospectively unless retrospective operation is clearly made out in the language of the statute. Only a procedural or declaratory law operates retrospectively as there is no vested right in procedure.

43. The petitioners would have this Court conclude that K. Govindraj, a coequal Bench, upsets R. Rajagopal Reddy's proposition. I am afraid, it does not. First, a decision that deals with an issue directly should take precedence over a decision, if ever, dealing with the same issue collaterally; that is, as a matter of analogy. It is not the principle that binds; rather the case holding--the happy combination of fact and law--that binds. For decisions are not statutes. Second, even otherwise, of the two coequal Bench decisions, the former prevails. As the Supreme Court in Sundeep Kumar Bafna v. State of Mahara [MANU/SC/0239/2014 : AIR 2014 SC 1745] put it, the wisdom of vintage value should thrive.

44. Sundeep Kumar Bafna, to be precise, has held that a decision or judgment can also be per incuriam if it is not possible for the court to reconcile its ratio with that of a previously pronounced judgment of a Co-equal or Larger Bench. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. Then, "the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam."

45. So, I must hold that K. Govindraj does not dilute R. Rajagopal Reddy--leave alone overrule it. As a result, it is beyond the pale of any doubt that the rigour of the Benami Prohibition Act affects this dispute between the sisters, and disentitles Vasanthi from taking the plea of benami.

Issue No. IV:

46. The defendants refer to the plaintiff's evidence and maintain that the plaintiff has admitted their case. Has she? Then, in any event, can this Court go into that question in this revision?

47. Indeed, the petitioners draw my attention to certain, what they call, admissions made by Vishala. According to them, their claim stands admitted. First, in this revision, I cannot reappreciate the evidence. Second, Nor can I disturb the concurrent findings of fact. And, even on merits, I have not seen in Vishala's cross-examination anything that gives away her case or accepts that of her sister's.

A Tailpiece:

48. Both the warring parties are sisters--once loving and caring of each other. For many years, it seems, they have lived together. As both the counsel agree, they both are in the autumn of their lives, said to be suffering from severe ill-health. This litigation has already taken its toll on them. Richard Dawkin's Genes gives a scientific perspective to filial bonds and sibling sharing and caring. But, at times, property trumps everything else. I wish it were not.

49. Earlier, both the parties wanted to argue on the compensation for the petitioners' use and occupation of the property. Besides, I wanted to explore whether this litigation could be laid to rest honourably. I queried whether Vasanthi's claim over the property would not subsist beyond her lifetime, for I was told she desired to breath her last there. I have also asked whether she is willing to undertake to that effect. She is not. She wants her children to carry on this legacy of litigation. One of them, I gather, lives in the USA. I have asked whether they are willing to give such an undertaking, now. But I am told they may give it after the mother's lifetime, not before, for the mother disapproves of it.

50. So I was constrained to decide the case on the merits between the once-ideal sisters. And I did.

Conclusion:

51. I, therefore, hold that the Writ Petition is devoid of any merit and deserves to be dismissed. And it is dismissed. No order on costs.

52. As to the compensation, damages, or mesne profits, the respondent can take recourse to Order 20, Rule 12 of CPC.

53. At this juncture, the applicants' counsel submits that the first applicant has been living in the property for about five decades. To explore the options of assailing this judgment and of finding an alternative accommodation, she needs three months' time. In this context, he also wants the Court to consider her ill-health.

Under these circumstances, the Court suspends the Judgment for three months from today subject to the applicants' filing the usual undertaking with the Registry in one week after this judgment is uploaded.


1Anthony Burgess, A Mouthful Air (Vintage, 1993) p 287

2Glanville Williams, 61 LQR at p 74, as quoted in Thronton's Legislative Drafting, 5th Ed., Bloomsbury, p 7

3Edward De Bono (1992). "Serious Creativity: Using the Power of Lateral Thinking to Create New Ideas", Harpercollins


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