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2001 DIGILAW 460 (KAR)

J. S. Subramanya Gupta v. J. S. Rajendra

2001-06-19

K.SREEDHAR RAO

body2001
JUDGMENT K. Sreedhar Rao, J.—The appeal filed against the order of the rejection of plaint on I.A. No. III in O.S. No. 1151 of 1999 on the file of the XXII Additional City Civil Judge, Bangalore. The appellant is the Plaintiff in the trial Court filed the suit for partition and possession. It is the contention in the plaint that the suit properties are the joint family property. One Subbaiah Shetty propositus, father of the Plaintiff and the Defendants No. 2 to 3 and husband of Defendant No. 4 left behind the suit properties and after his demise there were negotiations for settlement at panchayat. Eventually oral partition also took place later on memorandum of partition was prepared in accordance with the terms of the oral partition. The original of the deed of memorandum of partition is said to have been withheld by the 4th Defendant and she was not agreeable for effecting the terms of the oral partition. Under the circumstances, the Plaintiff filed the suit seeking partition of his share in the suit properties. 2. The Defendant No. 1 is the brother of the Plaintiff, Defendants No. 2 and 3 are the sisters of the Plaintiff and Defendant No. 4 is the Mother of the Plaintiff. Except the 'A' schedule properties, all the properties in 'B' to 'E' schedules stand in the name of the 4th Defendant. The claim for partition is stoutly resisted by the Defendant No. 4 contending that the properties are not available for partition except the 'A' schedule in respect of which there is already a suit filed in O.S. No. 7132 of 1996 pending on the file of the Additional City Civil Judge, Bangalore. Therefore, sought for dismissal of the suit. 3. The plea of application of provisions of Benami Transactions Prohibition Act, 1988 was also pressed into service by the Defendant. On the basis of the plaint averment, an application in I.A. No. III came to be made for rejection of the plaint for want of cause of action. The trial Court found that the provisions of Benami Transactions Prohibition Act, 1988 are not applicable and rejected the defence plea in that regard. However, found that there is an averment regarding the earlier oral partition. Therefore, the present suit for partition was held to be not maintainable. Accordingly, rejected the plaint under Rule VII, Rule XI. 4. The trial Court found that the provisions of Benami Transactions Prohibition Act, 1988 are not applicable and rejected the defence plea in that regard. However, found that there is an averment regarding the earlier oral partition. Therefore, the present suit for partition was held to be not maintainable. Accordingly, rejected the plaint under Rule VII, Rule XI. 4. In appeal, during the course of the arguments the Counsel for the appellant filed an application for amendment of the relief seeking specific performance of the enforcement of the terms of earlier oral partition. It was contended that necessary foundation facts have already been set out in the plaint in the first instance. Only by way of amendment of relief as an alternative relief, the Plaintiff is seeking to enforce the terms of the oral partition if it is found that on account of the earlier partition suit cannot be decreed and atleast on the basis of earlier oral partition to give effect to the terms thereof the relief of specific performance is sought for. 5. The Counsel for the Respondent stoutly opposed the application, contending that the claim is barred by limitation and the Plaintiff is not otherwise entitled to make such request. However, after going through the contentions, keeping open the question of limitation, it cannot be per se said that the amendment sought for would change the nature of the suit and cause of action. The foundation facts have already been set out in the plaint. As alternative relief of specific performance is sought by way of amendment, allowing the proposed amendment, would change the nature of the suit and would introduce a new cause of action. 6. According to the plaint averment, it is the husband of the 4th Defendant supplied the funds for purchase of the property in the name of the 4th Defendant. The Counsel for the Respondent contended that only the husband of the 4th Defendant is entitled to challenge the right of the exclusive title of the 4th Defendant and not the sons or daughters under the provisions of Benami Transactions Prohibition Act, 1988. 7. In order to appreciate the contentions, the provisions of Sections 3 and 4 of Benami Transactions (Prohibition) Act, are extracted hereunder for convenient reference: 3. Prohibition of benami transactions: (1) No person shall enter into benami Transaction. 7. In order to appreciate the contentions, the provisions of Sections 3 and 4 of Benami Transactions (Prohibition) Act, are extracted hereunder for convenient reference: 3. Prohibition of benami transactions: (1) No person shall enter into benami Transaction. (2) Nothing in Sub-section (1) shall apply to- a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter; (b) the securities held by a- (i) depository as a registered owner under Sub-section (1) of Section 10 of the Depositories Act, 1996; (ii) participant as an agent of a depository. Explanation: The expressions "depository" and "participant" shall have the meanings respectively assigned to them in Clauses (e) and (g) of Sub-section (1) of Section 2 of the Depositories Act, 1996, 3. Whoever, enters into any benami transaction shall be punishable with imprisonment for a terms which may extend to three years or with fine or with both. 4. Notwithstanding anything contained in the Code of Criminal Procedure 1973 (2 of 1974), an offence under this section shall be non-cognizable and bailable. 4. Prohibition of the right to recover property held benami.-No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on 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 allowed by or on behalf of a person claiming to be the real owner of such property. (3) Nothing in this section shall apply,-(a) Where the person in whose name the property is held is co-parcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is trustee or towards whom he stands in such capacity. 8. 8. Under Section 3, it is permissible for a person to purchase property in the name of his wife or unmarried daughter and such purchase is not hit by the provisions of the Act. However, there is presumption that the purchase made in the name of the wife or unmarried daughters is to their benefit. The person setting up adverse claim is entitled to rebut the presumption. In the instant case, it was strenuously contended that the 'B' to 'E' schedule properties standing in the name of the 4th Defendant are not intended to be her exclusive properties, it was argued that the issue relating to the claim for partition in disputed properties is a triable issue. Therefore, ex facie, plaint could not have been thrown out on the ground of Benami Transactions Prohibition Act. 9. I am unable to agree with the contention of the Counsel for the Respondent that it is the husband of the 4th Respondent alone would have the right to challenge or impeach the exclusive title of the 4th Defendant. Such a view would lead to perverse consequences, practically, if it is shown that the property ostensibly standing in the name of the wife or unmarried daughter is not made for their personal exclusive benefit quite naturally the property has to fall back to the common stock available for inheritance by succession. To rebut the presumption ever, to answer the legal propositions, it is necessary that the facts have to be pleaded and proved. In this regard, I find that the trial Court was not proper in rejecting the plaint. Besides, that 'A' schedule property was admittedly available for partition, not withstanding that the Defendants have filed another suit, this suit can not be thrown out on the ground that there is suit already filed by the Defendant. If there are two suits both can be clubbed and simultaneously tried. In that view of the matter, the order of the trial Court is set aside the application for amendment of plaint is permitted and the trial Court to dispose of the suit on merits in accordance with law. 10. In view of the reasons and discussions made above, the cross objections filed by the Respondent challenging the finding of the trial Court on the question of application of Benami Transactions Act does not sustain. Accordingly, the cross objections fail. 10. In view of the reasons and discussions made above, the cross objections filed by the Respondent challenging the finding of the trial Court on the question of application of Benami Transactions Act does not sustain. Accordingly, the cross objections fail. However, the Defendant is at liberty to take all the available defence pleas before the trial Court.