1. The plaintiff's suit for injunction, alternatively for recovery of possession, having been dismissed by the Court below, this appeal has been preferred. The second respondent (2nd defendant) alone is seen to have filed written statement and contested the matter. The plaintiff's case was that the. plaint schedule property previously belonged in tenancy right to one Ceriyakoya Thangal under a registered lease deed dated 6-8-1932. His leasehold right was sold in execution of a decree in O. S. 294/58 on the file of the Munsiff's Court, Badagara, on 25-8-1941 and was purchased by the plaintiff as per Ext. A-l sale certificate dated 10-10-1941. Exhibit A2 is the delivery account dated 29-10-1941 and Exhibit A3 is the Amin's report regarding the delivery dated 23-10-1941 in E. P. No. 1573/ 41 in O. S. No. 294/58. Exts. A4 and A5 dated 25-7-1965 and 5-1-1967, respectively, arc rent receipts obtained in the name of the plaintiff on 23-10-1941 and 25-7-1965; and Exts. A6 to A9 are revenue receipts obtained in her name on 11-7-1972 and 7-12-1972, 7-12-1972 and 1-1-1973 respectively.
2. According to the plaintiff, her mother, the 4th defendant, had no house of her own, and as such she was living with her in the house in the plaint schedule property. When the plaintiff shifted her residence to her husband's house, the 4th defendant along with her children, who are defendants 1 to 3, continued to live in the house in the plaint property. The plaintiff, however, continued to take the income from the property, and attended to all the maintenance work. When the plaintiff asked defendants 3 and 4 to vacate the house, they promised to vacate the house after obtaining another house for their residence; subsequently, defendants 1 and 3, however, asserted that they were not prepared to vacate the house. The suit had, therefore, to be filed apprehending that defendants 1 and 2 would prevent the plaintiff from taking the income from the property and residing in the house.
3. The contentions raised by the 2nd defendant were that it was not true that the plaint property belonged exclusively to the plaintiff; that the allegation in the plaint that the plaintiff purchased the property in Court auction, and that she took delivery thereof through Court, and put a house therein were all baseless and false; that the property was purchased in Court auction by the late Puidal Nambiar, father of the plaintiff and defendants 1 to 3 and husband of the 4th defendant, utilising his own funds in the name of the plaintiff, who was his eldest daughter, as his benami; that at the time of the purchase, the plaintiff was only aged 18 or 19 years; that the purchase price of the property was not paid by the plaintiff; that on the death of the said Paidal Nambiar, the right to the property passed to the plaintiff, the defendants, and Indira and Prema, who were daughters of his predeceased daughter Ammu; that after the death of the said Pavdal Nambiar the property was being managed and maintained by the 4th defendant, mother of the plaintiff and defendants 1 to 3 on behalf of herself and the other sharers.
4. The Court below dismissed the suit accepting the contentions of the 2nd defendant inter alia that the purchase of the plaint schedule property in the name of the plaintiff in Court auction as per Ext. A1 sale certificate was made by the plaintiff's father on his own behalf with his funds, and rejecting the preliminary objection raised by the plaintiff that there was a legal bar for the defendants to put forward a plea of benami in the light of the provisions contained in Sub-section (1) of Section 66 of the Civil P. C. Section 66(1) reads as follows:--
'No suit shall be maintained against any person claiming title under a purchase certificate by the Court in such manner as may be prescribed on the ground that the purchase was made on behalf of the plaintiff or on behalf of some one through whom the plaintiff claims, and in any suit by a person claiming title under a purchase so certified the defendant shall not be allowed to plead that the purchase was made on his behalf or on behalf of some one through whom the defendant claims.'
To reject the preliminary objection based on Section 66(1), C. P. C. raised by the plaintiff, the learned Subordinate Judge sought to derive support from the following passage from the decision of this Court in Kesavan Padmanabhan v. Sanku Narayanan (1958 Ker LT 524): (AIR 1958 Ker 368 at p. 374):
'Section 66 must be construed strictly as it encroaches upon the rights of the true owner, reason being that the benami transactions are only being discouraged by the legislature, but are not being made illegal. The real owner if he is in possession can always resist a suit by the certified auction-purchaser as plaintiff.'
After quoting the above passage the learned Subordinate Judge in para 13 of the judgment is seen to have stated as follows :--.
'This is sufficient authority to show that the 2nd defendant who claims under the real owner is entitled to canvass for the position that the purchase was benami for deceased Paidal Nambiar. Therefore, the preliminary objection raised by the plaintiff has only to be rejected.'
The learned Subordinate Judge, we are afraid, lost sight of the real impact brought to bear on the right of the parties to dispute the title based on a purchase certified lay the Court, by the latter part of the sub-section as it now stands which was introduced by Act 104 of 1976. The former part of the section, which alone was there before the said amendment came into force, provided that a suit was not maintainable against a purchaser certified by the Court on the ground that the purchase was made on behalf of the plaintiff or on behalf of some one through whom he claimed. The legislative policy which finds expression in Section 66(1) of the C. P. C. operates as an exception to the general rule applicable to benami transactions which are not per se illegal; and the amendment to the sub-section introduced by the Amendment Act of 1976 is intended to plug the loop holes noticed in the section as it originally stood. The learned Subordinate Judge ought to have found that in the face of an additional bar against the plea of benami created by the amendment, he was sot to be guided by the decision of this Court in Padmanabhan v. Narayanan (J958 Ker LT 524): (AIR 1958 Ker 368) rendered before the amendment and which has little or no relevance in a case squarely coveted by the latter portion of the section introduced by the amendment. We, therefore, hold that the learned Subordinate Judge ought to have upheld the plaintiff's preliminary objection to the plea of benami raised by the 2nd defendant.
5. Sri Achan then sought to canvass for the position that the amendment introduced, and which has come into force on 1-2-1977, could not be construed to have retrospective operation; and in that view the 2nd defendant was entitled to put forward the plea that the purchase in Court auction in the name of the plaintiff was only for and on behalf of Paidal Nambiar himself, as a plea in that nature would have been available to the 2nd defendant when the suit was filed and the written statement was filed long before the amendment came into force. In this connection we have to refer to Section 97 (3) of Act 104 of 1976 which provides as follows:
'Save as otherwise provided in Sub-section (2), the provisions of the principal Act, as amended by this Act, shall apply to every suit, proceeding, appeal or application, pending at the commencement of this Act or instituted or filed after such commencement notwithstanding the fact that the right, or cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement.'
The sub-section mandates that the amended provision shall apply even to suits or proceedings pending at the commencement of the Act notwithstanding the fact that the right or cause of action in pursuance of which suits or proceedings were instituted or filed had been acquired or had accrued before such commencement. We have therefore no hesitation in rejecting this contention raised by Sri Achan.
6. Sri Achan then made a vain attempt to argue that the bar under the latter part of the section as it now stands was restricted to cases where the defendant puts forward a plea that the purchase was on his behalf or on behalf of some one through whom he raised his claim. His submission was that the second defendant's contention was that the purchase was by Paidal Nambiar, not that it was on behalf of the 2nd defendant himself. There is no merit in this contention. Paidal Nambiar admittedly was no more. The contention put forward by the 2nd defendant to resist the plaintiffs suit was that he along with othee legal heirs, including the plaintiff and Indira and Prema, the daughters of Ammu, the predeceased daughter of Paidal Nambiar, (who were not parties to the suit) was entitled to the share in the properly covered by the purchase certificate. It could not therefore be said that the wording in the latter part of the sub-section as it now stands was not comprehensive enough to bring within its ambit the bar against the plea like the one raised by the 2nd defendant in this case, where he traces his right to the property, in full or in moiety, to a purchase alleged to have been made by some one other than the person in whose name the purchase was certified by the Court.
7. It was then contended by Sri Achan that Sub-section (2) of Section 97 of the Amendment Act (104/76) lays down that in spite of the provisions of the Amendment Act having come into force, they had to be given effect to without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897. For one thing, the operation of the provisions of Sub-section (2) of Section 97 is restricted to Clauses (a) to (zb) enumerated under that sub-section. The 2nd defendant did not, and could not also, plead that his case would fall within any one of the categories mentioned in Clauses (a) to (zb) of Sub-section (2) of Section 97. Moreover, Section 6 of the General Clauses Act would have no application where a contrary intention has been expressed. Section 6 of the General Clauses Act reads:
'6. Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the re-peal shall not --. ... ... ... ... ... ... ... (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid.'
Section 97 (3) of the Amendment Act has in unequivocal terms stated that save as otherwise provided in Sub-section (2), the provisions of the principal Act, as amended by this Act, shall apply to every suit, proceeding, appeal or application, pending at the commencement of this Act or instituted or filed after such commencement, notwithstanding the fact that the right, or cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement' the 2nd defendant is not therefore entitled to succeed on this plea based on the provisions contained in Sub-section (2) of Section 97 of the Act and Section 6 of the General Clauses Act.
8. Sri Achan finally made a fervent plea that the defendants might be allowed to amend the pleadings raising a new ground based on adverse possession, as, according to him, the defendants had perfected their title to the property by long and uninterrupted possession hostile to the plaintiff. Inasmuch as that plea had not been raised in the written statement, and that was not put in issue before the trial Court, and a ple;i of this nature would run counter to the plea liaised before the trial Court, we do not think, at this stage, we would be justified in accepting the request made by Sri Achan. The request for the remand has only to be rejected; and we do so.
The result is that we allow the appeal, set aside the judgment and decree of the Court below; and decree the suit as prayed for. The plaintiff would be entitled to withdraw from the Court whatever amount has been deposited by the Commissioner by auctioning the usufructs of the plaint schedule property. In the circumstances of the case there will be no order as to costs.