Judgment : These revision petitions are filed by plaintiff in O.S.No.32 of 1997 on the file of Sub court, Cuddalore. 2. These revision petition arise under the following circumstances: Petitioner herein filed the suit for partition claiming 1/4th share in plaint ‘B’ schedule properties on the ground that the said item is family property. According to him, plaintiff and defendants 1 to 4 constitute a joint family. First defendant obtained about 5 1/2 acres of land from his ancestors and they were yielding good income. It is also said hat 4th defendant is also employed and first defendant is also getting good income. The income from the property was kept as surplus. Plaintiff after completing his education. is now a medical practitioner. Out of the family funds, a property was purchased at Annamalai Nagar, Chidambaram. Since first defendant was the kartha of the family, the same was taken in his name. Family also purchased a Mahindra Van, though the permit is also in the name of first defendant. The Van was profitably operated and that also yielded a good income. In view of his medical practice, plaintiff did not get time to verify how the income from the property are being spent. 3. Plaint property in this suit belonged to TELC, Cuddalore and first defendant and plaintiff negotiated for purchase for consideration of Rs.12 lakhs. For the said purpose, a loan on record was taken from 5th defendant and plaintiff was also informed that document has been taken. Plaintiff was also informed that the property has been purchased and plaintiff wanted to verify the sale deeds. First defendant was giving evasive answers and after verification it was found that document has been taken in the name of 5th defendant. It is the case of plaintiff that the document in favour of 5th defendant is only sham and real owner is the family. Though document stands in the name of 5th defendant, it is only sham transaction and he has not spent any amount for purchasing the same. Family fund alone wa utilised and 5th defendant is not getting any independent title. It is the case of plaintiff that sale deeds have not been completed and returned to defendants 3 and 5. Suit was therefore laid for partition claiming 1/4th share in the plaint 1B’ schedule property and allot plaintiff on demarcating the same by Commissioner. 4. Family fund alone wa utilised and 5th defendant is not getting any independent title. It is the case of plaintiff that sale deeds have not been completed and returned to defendants 3 and 5. Suit was therefore laid for partition claiming 1/4th share in the plaint 1B’ schedule property and allot plaintiff on demarcating the same by Commissioner. 4. Reason for filing this revision petition is that 5th defendant filed an application in I.A.No.304 of 1997 under O.7, Rule 11 of Code of Civil Procedure. In his affidavit, 5th defendant contended that suit is barred under Benami Transaction Prohibition Act and consequently barred by law. Even though plaint allegation is only sham transaction under Benami Transaction Prohibition Act, even sham transaction is barred and consequently suit is liable to be struck off the file and the same is liable to be rejected. 5. Detailed counter affidavit was filed by defendants contending that plaintiff has no cause of action and plaint is liable to be struck off. 6. Plaintiff alsofiled I.A.No.662 of 1997 to reject I.A.No.304 of 1997 filed by 5th defendant. 7. Both these applications were heard together and by the impugned order, it is held that in regard to ‘B’ Schedule item No.1 is concerned the plaint is rejected. Application filed by plaintiff in I.A.No.662 of 1997 was also dismissed. It is against the common order, plaintiff has filed these revision petitions. 8. Notices have been served on the respondents and I heard the learned counsel on both sides. 9. Learned counsel for petitioner submitted that the impugned order is without jurisdiction and lower court has acted illegally in rejecting plaint in part. Learned counsel further submitted that Benami transaction and sham transaction are entirely different and what is prohibited under Benami transaction is only Benami transaction as defined under that At and not sham transaction. 10. Learned counsel for respondents submitted that impugned order do not call for any interference and lower court has applied the law rightly. 11. After hearing counsel on both sides I do not think that the order of lower court could be supported. 12. I will first consider the question whether a sham transaction will come within the provisions of Benami Transaction Act. 13. 11. After hearing counsel on both sides I do not think that the order of lower court could be supported. 12. I will first consider the question whether a sham transaction will come within the provisions of Benami Transaction Act. 13. In N.Govindarajan and another v. Indian Overseas Bank N.Govindarajan and another v. Indian Overseas Bank N.Govindarajan and another v. Indian Overseas Bank , (1991)1 L.W. 649 a Division Bench of our High Court held that sham transaction and Benami Transaction are different and prohibition in regard to Benami transaction will not apply for sham transactions. Their Lordships overruled the judgment of learned single Judge of this Court reported in Kathoon Bivi v. Mohammed alias Sheik Mohammed , (1998)1 L.W. 204 . In para.9 of the judgment, their Lordships held thus: “On a careful consideration of the rival submission, we find difficult to accept the contention of learned counsel for the appellants. When the expression ‘benami transaction’ has been defined in the Act, and the expression’ property held benami has to be interpreted in the light of the definition occurring in the Act relating to a benami transaction and also as referable to property held, as a result of or attributable to, such a transaction, in the absence of a ‘benami transaction’ preceding, it is difficult to conceive the holding of any property benami. Necessarily, therefore, the definition of ‘benami transaction’ in a Sec.2(a) of the Act has to be read into Sec.4 of the Act also, while interpreting the words ‘property held benami’ and so read, only transactions’ answering the definition of a ‘benami transaction’ under Sec.2(a) of the Act, pursuant to which property is held benami, would be affected by Sec.4 of the Act. Sec.4 of the Act cannot be so interpreted as to include sham and nominal transactions, which are outside the scope of a ‘benami transaction’ as defined in Sec.2(a) of the Act. Similarly, the repeal of Sec.81 of the Indian Trusts Act, 1882, does not in any manner assist the appellants as pointed out earlier. Sec.4 of the Act cannot be so interpreted as to include sham and nominal transactions, which are outside the scope of a ‘benami transaction’ as defined in Sec.2(a) of the Act. Similarly, the repeal of Sec.81 of the Indian Trusts Act, 1882, does not in any manner assist the appellants as pointed out earlier. A situation contemplated under Sec.81 of the Indian Trusts Act, 1882, in so far as we have been able to ascertain from provisions of the Act has not been provided for, while provision has been made, as pointed out earlier, with reference to matters falling under Secs.82 and 94 of the Indian Trusts Act, 1882, In other words, it looks as though Sec.81 of the Indian Trusts Act, 1882 has been repealed, but that would have only the effect of releasing the property from the obligations of being held in accordance with Sec.81 of the Indian Trusts Act, 1882. The decision in Kathoon Beevi v. S.Mohamed alias Shaik Mohamed Kathoon Beevi v. S.Mohamed alias Shaik Mohamed Kathoon Beevi v. S.Mohamed alias Shaik Mohamed , (1990(1 L.W. 204 proceeded to hold that the repeal of Sec.81 of the Indian Trusts Act, would suffice to include sham and nominal transactions also within the scope of the provisions of the Act. It is difficult to persuade ourselves to the line of reasoning adopted in that decision. Further, it is seen that apart from the repeal of Secs.81 and 82 of the Indian Trusts Act, 1882, no other aspect has been adverted to and examined and on a careful consideration of the scope and ambit of the provisions of the ordinance and the Act, we have earlier pointed out that the repeal of Sec.81 of the Indian Trusts Act, 1982, by itself would be of no avail to bring within the provisions of the Act sham, and nominal transactions. We therefore, hold that the decision in Kathoon Beevi Ammal v. Mohamed alias Shaik Mohammed, insofar as it held that sham and nominal transactions are also covered by the provisions of the Act, is not correct. It is seen that in Ouseph Chacko v. Raman Nair , A.I.R. 1989 Ker. 317: (1989)1 K.L.T. 767 the view has been expressed that a sham and nominal transaction is not a benami transaction and Sec.4 of the Act would not apply. It is seen that in Ouseph Chacko v. Raman Nair , A.I.R. 1989 Ker. 317: (1989)1 K.L.T. 767 the view has been expressed that a sham and nominal transaction is not a benami transaction and Sec.4 of the Act would not apply. We find on a careful consideration of the reasoning in that decision that it accords generally with the view we have earlier expressed on all the aspects relating to the exclusion of sham and nominal transactions from the scope of the provisions of the Act and we hold that decision has laid down the law correctly. Though learned counsel for the respondent submitted that the provisions of the Act would be inapplicable to the decree-holder/respondent, who had attached the property in execution of the decree, adverse to the interest of the judgment-debtor, we do not express any opinion thereon, as that aspect of the matter would be totally outside the scope of the reference. We, therefore, hold that sham and nominal transactions would not be covered by the provisions of the Act and that it is open to the parties to contend that a transaction is sham and nominal and no title passed under it. …” 14. A similar view was taken by kerala High Court in the Full Bench decision reported in Bhargavy P.Sumathykutty v. Janaki Sathyabhama Bhargavy P.Sumathykutty v. Janaki Sathyabhama Bhargavy P.Sumathykutty v. Janaki Sathyabhama , A.I.R. 1995 Ker. 42 wherein the Division Bench decision of this Court (cited supra) was also relied on. In paragraphs 34 to 36 of the judgment, the Full Bench held thus: “ 34. The scheme as well as the setting unfurled in the tiny piece of legislation:Benami Act would thus unmistakably proclaim even though the frugality of words set forth therein that it is only the tripartite benami transaction (which is recognised by the case law as the real benami transaction) which the Parliament has sought to snuff out with its statutory forceps. The corollary is that Parliament would not have intended to make any foray into the sphere of sham transaction, perhaps because what is sham will ever remain sham though the case law happened to “Loosely” or “inaccurately” call that also benami. 35. The corollary is that Parliament would not have intended to make any foray into the sphere of sham transaction, perhaps because what is sham will ever remain sham though the case law happened to “Loosely” or “inaccurately” call that also benami. 35. A learned Judge of the Madras High Court has held in Kathoon Bivi Ammal v. S.Mohamad Kathoon Bivi Ammal v. S.Mohamad Kathoon Bivi Ammal v. S.Mohamad , “1990”1 L.W. 284 that Benami Act would apply to both categories of transactions. The reasoning adopted by the learned Judge is that Inclusion of Secs.81 and 82 of the Trusts Act within the repeal provision is indicative that sham transaction also is brought within the purview of the Benami Act. We pointed out earlier that repeal of Secs.81 and 82 of the Trusts Act cannot have such an implication on the scope of the Benami Act. That apart, correctness of the decision in Kathoon Bivi Ammals case, was questions and a Division Bench of the Madras High Court in Govindarajan v. Indian Overseas Bank Govindarajan v. Indian Overseas Bank Govindarajan v. Indian Overseas Bank , (1991)1 L.W. 649 has overruled the same. Ratnam, J. (as he then was) quoted the decision of Ouseph Chacko v. Raman Nair , (1989)1 K.L.T. 767 : A.I.R. 1989 Ker. 317 and followed the ratio in arriving at the said conclusion. 36. For the aforesaid reasons, we are in agreement with the conclusion arrived at by Bhaskaran Nambiar, J. in Ouseph Chacko v. Raman Nair , (1989)1 K.L.T. 767 : A.I.R. 1969 Ker. 317 and followed the ratio in arriving at the said conclusion.” 15. The case of plaintiff is that the document in favour of 5th defendant is really sham transaction and 5th defendant is not getting any right over the same. The question whether it is Benami Transaction or sham transaction will have to be decided on evidence and only thereafter court can consider whether suit is barred under Benami Transaction Act. By the Impugned order lower court took sham transaction also as Benami transaction. That appraise of lower court is not correct. 16. The other contention raised by learned counsel for petitioner is that plaint cannot be rejected in part and the same will be without jurisdiction. I find force in that contention. 17. By the Impugned order lower court took sham transaction also as Benami transaction. That appraise of lower court is not correct. 16. The other contention raised by learned counsel for petitioner is that plaint cannot be rejected in part and the same will be without jurisdiction. I find force in that contention. 17. In Roop Lal Sathi v. Nacchattar Singh Gill Roop Lal Sathi v. Nacchattar Singh Gill Roop Lal Sathi v. Nacchattar Singh Gill , (1982)3 S.C.C. 487 in paras.20 and 21, it is held thus: “20. The order passed by the High Court directing the striking out of paragraphs 4 to 18 of the election petition can hardly be supported. It is not clear from the order that the High Court proceeded to act under O.7, Rule 11(a) or under O.6, Rule 16 of the Code in passing the order that it did. It is rightly conceded that the High Court could not have acted under O.7, Rule 11(a) of the Code. Where the plaint discloses no cause of action, it is obligatory upon the court to reject the plaint as a whole under O.7, Rule 11(a) of the Code, but the rule does not justify the rejection of any particular portion of a plaint; Mullas Civil Procedure Code, 13th Edn., Vol.,1, p.755, It is therefore necessary to consider whether the order passed by the High Court could be justified under O.6, Rule 16 of the Code, which reads as follows: “ 16. Striking out pleadings: The court may at any stage of the proceedings order to be struck out or amended any matter in any pleading: .(a) which may be unnecessary, scandalous, frivolous or vexatious, or, .(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or .(c) which is otherwise an abuse of the process of the court. 21. The order passed by the High Court directing that paragraphs 4 to 18 of the election petition be struck out cannot be sustained on the terms of O.6, Rule 16 of the Code. There is no finding reached by the High Court that the averments in paragraphs 4 to 18 of the election petition are either unnecessary. 21. The order passed by the High Court directing that paragraphs 4 to 18 of the election petition be struck out cannot be sustained on the terms of O.6, Rule 16 of the Code. There is no finding reached by the High Court that the averments in paragraphs 4 to 18 of the election petition are either unnecessary. frivolous or vexatious, or that they are such as may tend to prejudice, embarrass or delay the fair trial of the election, nor is there any finding that the averments therein are such as to constitute an abuse of the process of the court. That being so, the High Court had no power to direct the striking out of paragraphs 4 to 18 of the election petition.” 18. The same principle was reiterated in the recent decision of Honourable Supreme court reported in D.Ramachandran v. R.V.Janakiraman D.Ramachandran v. R.V.Janakiraman D.Ramachandran v. R.V.Janakiraman , (1999)1 C.T.C. 715. In para.10 of the the judgment, learned Lordships held that it is elementary that O.7, Rule 11(a), Civil Procedure Code the court cannot dissect the pleading into several parts and consider whether each one of them discloses a cause of action. Under the rule, there cannot be a partial rejection of the plaint petition. 19. Mulla on Code of Civil Procedure Abridged 13th Edition (1999), has said thus: “The rule does not justify the rejection of any particular portion of a plaint. If the plaint discloses a cause of action in part it cannot be rejected.” 20. In this case, plaintiff is claiming partition of all the ‘B’ schedule items, Lower court rejected the plaint in respect of item No.1 of ‘B’ schedule. That finding of lower court is one without jurisdiction. 21. It is true that order rejecting a plaint is appealable since it comes within the definition of decree. But when court passed an order without jurisdiction as in this case, or when it is patently illegal, there is nothing wrong in invoking supervisory power of the court under Sec.115 of Civil Procedure Code and rectify the illegality committed by it. 22. In the result, both the revision petitions are allowed and lower court is directed to proceed with the suit in accordance with law. There will be no order as to costs. C.M.P.No.1175 of 1998 is closed.