Whether defendant No. 2 is entitled to contend that not defendant No. 1 but defendant No. 2 or his wife was the tenant of the suit premises. In other words, whether he can set-up the plea that defendant No. 1 was a benamidar and that the tenancy transaction was a benami transaction.
IN THE HIGH COURT OF BOMBAY
If a benami transaction was recognised in the Law of Lease, this entire basic feature of leases will vanish. I will take a simple illustration: 'B' approaches "A' for lease of his land. 'A' has a face set not to lease it to 'B'. 'B' cannot set up 'C' as a benamidar to take lease from 'A' and contend against 'A' in the future that 'C' was only a benamidar and that 'B' was the real lessee. The lessor's right to choose the personnel or his lessee is, thus, wholly defeated by such benami transaction. Such transactions, therefore, cannot be countenanced by the law at all.
Moreover, in any event, it cannot be countenanced at least against the landlord. A landlord cannot be told by a 3rd party that when his lessee took the lease from him, he was in fact cheating him and that the real lessee was the 3rd party and that the lessee was a mere benamidar. The lease would be voidable on this account itself, because it is brought about by such fraud. The lessor never wanted it to give to the 3rd party and by practising fraud on the lessor the 3rd party proposes to take that lease. It will be wholly a voidable transaction. As to what will happen if the lessor has no objection to the benami nature is not for me to consider at this stage. I keep my fingers crossed on the question whether a person can tell rest of the world, other than the landlord, that he is the real tenant in respect of certain property belonging to the landlord and not the person shown as the lessee in the Lease Deed executed between the lessor and the person shown in the lease as a lessee. Against the landlord in any event, such a contention is just not tenable.
I may hasten to observe that there may be cases where the landlord himself may be a party to such a benami transaction, that he knows that the person named as a lessee is only a benamidar and that he was agreeable to the name of the real tenant being concealed behind the screen of the benamidar. I do not wish to decide as to what would be the legal position in such a case. Point is that in the absence of any such plea or evidence it would not be open for any person to go on cocking snoozes at the landlord telling him that he had been made a fool of and that the real tenant was somebody else.
Such situation will not arise in the case of transfer such as sale or gift. 'A' may not want to sell his land to 'B' but may have no objection to selling it to 'C' and may sell it to 'C' 'B' may then purchase it from 'C' and none could object. That thing which can be done directly can always be done also indirectly. But that which cannot be done directly can also not be done indirectly. This is one of the basic principles of the law.
10. This entire question has been examined by the lower Appellate Court in para 23 of his judgment and the lower Court has relied upon the judgment of the Patna High Court reported in MANU/BH/0019/1978 : AIR1978Pat91 Ranvijaya Shahi v. Bala Prasad Motani.
With respect, I am in complete agreement with the proposition of law formulated by the learned Judge of the Patna High Court.
11. The question has been dealt with by the Patna High Court as well as by the Supreme Court also in the context of the provisions of section 92 of the Evidence Act. Reliance in that behalf is placed upon the judgment of the Supreme Court in MANU/SC/0490/1976 : AIR1976SC2400 Niranjan Kumar and other v. Dhyan Singh and another.
In that case, no doubt the Supreme Court has observed that a person named in the lease document as tenant was acting as agent for his principal. But a benamidar is not an agent. The concept of benami transaction is something much more than a transaction of agency.
IN THE HIGH COURT OF BOMBAY
Writ Petition No. 1362 of 1986
Decided On: 20.09.1988
Decided On: 21.09.1988
M.S. Shastri Vs. Hilla M. Batliwalla and Ors.
Hon'ble Judges/Coram:
S.G. Manohar, J.
Citation: 1989(1) Bom.C.R.138.
