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Dina Ram Vs. Rama Nand and anr. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revision Petition No. 1883 of 1977
Judge
Reported in[1980]126ITR486(P& H)
ActsIncome Tax Act, 1961 - Sections 281A; Code of Civil Procedure (CPC) - Sections 151 - Order 1, Rule 10
AppellantDina Ram
RespondentRama Nand and anr.
Appellant Advocate M.S. Liberhan, Adv.
Respondent Advocate V.M. Jain, Adv.
Cases Referred and Harsaran v. Musatmnat Dilraji
Excerpt:
.....filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - in view of the provisions of section 281a, the real owner is precluded from instituting any suit to enforce any right of his in respect of any property held benami, unless the conditions mentioned in clauses (a), (b) and (c) are satisfied. musatmnat dilraji [1908] 8 1c 527. in all these cases, it has been held that it is open to the ostensible owner to plead that he is not the real owner and once that plea is raised, the real owner should be impleaded as..........this court in jagdish khattar v. ram kishan [1971] plj 242, where, in similar circumstances, the real owner was allowed to be impleaded as a party, with the result that the petition was admitted to hearing by a division bench, and that is how we are seized of the matter. 4. mr. m. s. liberhan, learned counsel for the petitioner, contended that, in view of the provisions of section 281a of the act, the real owner could not be impleaded as a party and that the learned trial court acted illegally and with material irregularity in allowing the application of ranjit singh and impleading him as a defendant. 5. after hearing the learned counsel for the parties, we are of the view that there is no merit in the contention of the learned counsel for the petitioner. section 281a of the act reads.....
Judgment:

Prem Chand Jain, J.

1. Dina Ram, petitioner, filed a suit for possession by way of pre-emption against Rama Nand, defendant. During the pendency of the suit, Ranjit Singh made an application under Order 1, Rule 10, read with Section 151 of the CPC, praying that he was the real purchaser of the property in dispute and that Rama Nand, defendant, was simply a benamidar and that he being a necessary party be impleaded in the suit. The application was contested by the petitioner on the short ground that defendant No. 1 was the real purchaser and that Ranjit Singh was not a necessary party. The trial court, after considering the entire matter, allowed the application and impleaded Ranjit Singh in the suit as a defendant.

2. Feeling aggrieved from the aforesaid order of the trial court dated October 10, 1977, the present revision petition has been filed by Dina Ram, plaintiff.

3. It appears that at the time of admission, the learned counsel for the petitioner relied on Section 281A of the I.T. Act (hereinafter referred to as ' the Act'), and on that basis challenged the correctness of the Division Bench judgment of this court in Jagdish Khattar v. Ram Kishan [1971] PLJ 242, where, in similar circumstances, the real owner was allowed to be impleaded as a party, with the result that the petition was admitted to hearing by a Division Bench, and that is how we are seized of the matter.

4. Mr. M. S. Liberhan, learned counsel for the petitioner, contended that, in view of the provisions of Section 281A of the Act, the real owner could not be impleaded as a party and that the learned trial court acted illegally and with material irregularity in allowing the application of Ranjit Singh and impleading him as a defendant.

5. After hearing the learned counsel for the parties, we are of the view that there is no merit in the contention of the learned counsel for the petitioner. Section 281A of the Act reads as under :

' 281A(1) No suit to enforce any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be instituted in any court by or on behalf of a person (hereafter in this section referred to as the claimant) claiming to be the real owner of such property unless,--

(a) the income, if any, from such property has been disclosed in any return of income furnished by the claimant under this Act; or

(b) such property has been disclosed in any return of net wealth furnished by the claimant under the Wealth-tax Act, 1957 (27 of 1957); or

(c) notice in the prescribed form and containing the prescribed particulars in respect of the property has been given by the claimant to the Income-tax Officer....... '

6. A bare perusal of the aforesaid provision goes to show that the same has no applicability to the facts of the case in hand. In view of the provisions of Section 281A, the real owner is precluded from instituting any suit to enforce any right of his in respect of any property held benami, unless the conditions mentioned in Clauses (a), (b) and (c) are satisfied. In the instant case, Ranjit Singh is not claiming to enforce any right against the benamidar or against any other person in respect of the property in dispute. He has made this application for being impleaded as a defendant on the ground that he is the real owner of the property and he on that score wishes to contest the suit filed by the pre-emptor for possession. The benamidar, in the instant case, does not claim that he is the real owner and, in this situation, the person who claims to be the real owner should be impleaded as a party. We do not agree with Mr. Liberhan that the view taken in Jagdish Khattar's case [1971] PLJ 242 does not lay down the correct law. The following observations of the learned judges, with which we are in respectful agreement, conclude the matter :

'A pre-emptor will always file a suit against the ostensible owner but once the ostensible owner says that he is not the real owner then the proper course would be to implead the real owner and determine the pre-emption suit vis-a-vis the real owner. It is always open to a party to plead as to the real nature of a transaction, unless that plea would defeat the suit on the basis of collusion or fraud. If this is kept in view, then it will be apparent that the decisions, on which the learned single judge relied, really lay down the correct rule of law. These decisions are given in Sankatha Prasad's case, AIR 1939 All 81, Sankatha Prasad's case, AIR 1940 All 97, Mt. Ram Sakhi Kuar's case, AIR 1924 All 802, and Harsaran v. Musatmnat Dilraji [1908] 8 1C 527. In all these cases, it has been held that it is open to the ostensible owner to plead that he is not the real owner and once that plea is raised, the real owner should be impleaded as a party so that the suit can be effectively adjudicated upon.'

7. In view of the aforesaid discussion, we hold that the trial court was justified in impleading Ranjit Singh as a party to the suit and that Section 281A of the Act is no bar to the impleading of the real owner as a party in the pre-emption suit.

8. No other point was urged.

9. For the reasons recorded above, this petition fails and is dismissed, but in the circumstances of the case, we make no order as to costs. The parties, through their learned counsel, have been directed to appear before the trial court on November 27, 1978.


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