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2002 DIGILAW 181 (GAU)

Arifa Begum (Musstt) and Ors v. Toyab Ali andOrs

2002-04-26

I.A.ANSARI

body2002
LA. ANSARI, J- Challenging the legality of the order, dated 9.6.97, passed by learned Civil Judge (Jr. Dim) No. 3, Guwahati, on the Petition No. 246/97 made under Order XIV Rule 2 read with Section 151 Cr.P.C. filed in Title Suit No. 297/95, the defendants-petitioners have submitted this revision under Section 115 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as "the Code"). 2. The material facts and various stages, which have led to this revision, may, in brief, be stated as follows:- (i) The plaintiffs-opposite party instituted Title Suit No. 297/95 aforementioned seeking, inter alia, declaration of their joint rights, title and interest on the suit land alongwith the defendant-petitioners, for confirmation of possession, etc., their case being, in a nutshell, thus: Late Poliyancha Shaikh purchased the suit land, on 9.1.96, for valuable consideration from the fund of the joint estate for the benefit all of the members of his family, which included not only the plaintiffs, but also Poliyancha Shaikh's eldest son, Ayub AH (since deceased). As the plaintiffs and the defendants used to live jointly and in commences, as the said purchase was made by Poliyancha by a registered sale deed, in the name of Ayub Ali, with the hope that the suit land would devolve upon all heirs of Poliyancha. Upon purchase so made, plaintiffs as well as defendants remained in joint possession of the said land. Even after separation of Ayub Ali, agricultural produces of the suit land used to be proportionately distributed amongst the heirs of late Poliyancha. During his life­time, Ayub Ali sold, on 2.2.95, a portion of the suit land in favour of one Akbor Ali and the sale proceeds were proportionately distributed among all the successors-in-interest of Poliyancha. Thereafter, on 9.2.95, Ayub Ali sold another portion of the suit land, but before he could share the sale. Proceeds, so derived by him, with the plaintiffs, he fell ill and died on 18.6.95. The defendants are, now, trying, in collusion with others, to sell the suit land in complete denial of the plaintiffs' rights thereto, which, if succeeds, will cause irreparable loss to the plaintiffs. Hence, the suit. (ii) The defendants filed their written statement contending, inter alia, that the suit was not maintainable in law. They denied that the suit land was purchased by Late Poliyancha Shaikh out of any joint estate. Hence, the suit. (ii) The defendants filed their written statement contending, inter alia, that the suit was not maintainable in law. They denied that the suit land was purchased by Late Poliyancha Shaikh out of any joint estate. The defendants asserted that Ayub Ali had purchased the suit land with his own savings, because he was an employee of N.F. Railway and was, at the relevant time, posted at Dibrugarh and that he had purchased the suit land on consideration of a sum of Rs. 1,000/-. The defendants also asserted that Ayub Ali was a married man and was living separately with his family. (iii) After issues had been framed in the suit, defendants submitted a petition in the learned Trial Court under Order VII Rule ll(d) read with Section 151 of the Code stating to the effect, inter alia, that according to the averments made in para 3 of the plaint, Late Poliyancha Shaikh had purchased the suit land for the benefit of all the members of the family. This shows, according to the plaintiff, that the purchase of suit land by Ayub Ali (predecessor-in-interest of the defendants) was a benami transaction and that Ayub Ali was not the sole and absolute owner of the suit land. Since the Benami Transaction (Prohibition) Act, 1988, (which is hereinafter referred to as "the said Act") prohibits institution of any suit, claim or action to enforce any right in respect of any property held benami against the person in whose name property stands, defendants contended that the suit is barred by Section 4(1) of the said Act and the plaint be rejected. Defendants resisted this contention by filing written objection reiterating, inter alia that the land was purchased in the name of Ayub Ali for not only his own benefit, but also for the benefit of all other members of the said joint family. (iv) Defendants subsequently filed another petition in the learned trial Court stating, inter alia, that the defendants had furnished 5 issues and the issue No. 1 was, "Whether the suit is barred by Benami Transaction (Prohibition) Act, 1988, and is not maintainable in law and the plaint is liable to be rejected." The defendants contended that since the issue No. 1 relates to point of law, it may be treated as a preliminary issue and be heard first before taking up other issues. (v) The learned Court below accordingly heard both sides on issue No. 5 as a preliminary issue, the issue No. 5 being, "Whether the suit is barred by provisions of Benami Transaction (Prohibition) Act, 1988 and the plaint is liable to be rejected?" Upon hearing, learned Court below passed an order, on 9.6.97, observing that the written statement of the defendants made no mention of the fact that the suit was barred by the provisions of the said Act. That apart, issue No. 5, according to the learned Court below, raises mixed question of facts as well as law and, hence, this issue cannot be decided as a preliminary issue. The prayer made by the defendants for rejection of the plaint was accordingly disallowed. It is this order, which stands impugned by the defendants in this revision. 3.1 have carefully perused the relevant records including the impugned order. I have heard Mr A. Sattar, learned counsel for the petitioners, and Mr H. Deka, learned counsel appearing for the opposite party. 4. Assailing the impugned order, Mr. Sattar has submitted that from a bare reading of the averments made in para 3 of the plaint, it becomes clear that according to the plaintiffs, suit land was purchased by Late Poliyancha Shaikh (since deceased), on 9.1.61, in the name of his eldest son Ayub Ali (since deceased), out of the fund of the joint estate of their joint family and for the benefit of not only Ayub Ali and his family, but also for the benefit of other members of the said joint family, which included the plaintiffs. This shows, points out Mr Sattar, that the transaction of purchase of the suit land by Poliyancha Sheikh was, according to plaintiffs own averments a benami transaction. Placing reliance on R. Rajagopal Reddy-Vs-Padmini Chandra-sekharan ( AIR 1996 SC 238 ), Mr Sattar has contended that Section 4(1) of the said Act bars such a suit. 5. It is also submitted by Mr Sattar that if a plain reading of the plaint shows that the suit is barred by law, provisions of Order VII Rule 11 (d) are attracted and such plaint shall be rejected. Mr Sattar has placed reliance in support of this contention on H. Dwijamani Dev Sharma-Vs-Hindgmayum Chandra Shekhar Sharma, (1996)3 (GLR 403)1997(1) GLT 135. Mr Sattar has placed reliance in support of this contention on H. Dwijamani Dev Sharma-Vs-Hindgmayum Chandra Shekhar Sharma, (1996)3 (GLR 403)1997(1) GLT 135. In the case at hand, contends Mr Sattar, a bare reading of the plaint itself makes it clear that the plaintiffs filed the suit for enforcing a right, which, according to their own statements made in the plaint, was based on a benami transaction. But such a right, reiterates Mr Sattar, can not be enforced as laid down in Section 4(1) of the said Act. 6. Mr Sattar has further contended that since para 3 of the plaint itself makes it clear that the plaintiffs want to enforce their right based on a benami transaction, the issue raised a question of law only as to whether such a suit could be held maintainable or not and in this view of the matter, the opinion expressed by the learned Munsiff that the issue No. 5 required determination of a mixed question of fact and law is wholly erroneous. 7. In short, Mr Sattar submits that the learned Munsiff ought to have held that the Issue No. 5 raised pure question of law based on the contents of the plaint itself and since the plaint shows that the plaintiffs suit requires enforcement of their rights based on a benami transaction, such a suit is not maintainable in the face of the provisions of Section 4( 1) of the said Act. 8. Controverting the above submissions made on behalf of the petitioners, Mr Deka has submitted that sub-section (3) of Section 4 of the Act lays down two exceptions to the provisions of Section 4( 1) permitting thereby institution of suits in two exceptional circumstances, namely (a) if the person in whose name property stands, is a coparcener in a Hindu Undivided Family and the property is held for the benefit of the coparceners in the family; (b) if the person, in whose name the property stands, is a trustee or stands in a fiduciary capacity and the property is held by such a person for the benefit of another person for whom he is a trustee or towards whom he stands in the fiduciary capacity. 9. 9. In the case at hand, contends Mr Deka, since Ayub Ali was, according to plaint, not only a beneficiary himself in respect of the suit land, but also stood in fiduciary capacity holding the suit land as a trustee for other members of his joint family, the suit is protected under Section 4(3 )(b), are not barred. 10. It is also submitted by Mr Deka that since the disposal of the suit has been inordinately delayed and issue raised by the defendants can be decided at the end of the trial along with other issues, it will be appropriate, in such circumstances and for effective adjudication of the entire subject matter, that the suit be allowed to be disposed of on merit after recording evidence. Support for this contention is sought to be derived by Mr. Deka from Lufthansa German Airlines-Vs-Vij Sales Corporation, (1998) 8 SCC 623 . 11. Mr Deka has also submitted that in their written statement, since the defendants have not specifically asserted that the suit is barred under the said Act and since they have merely stated that the suit is not maintainable in law, there is no foundation in the written statement for framing issue No. 5. Hence, in such a situation, contends Mr Deka, learned Munsiff was justified in declining to decide issue No. 5 as a preliminary issue, Mr Deka has placed reliance in this regard, on T.H. Musthaffa-Vs-M.P. Varghese & Ors. (1999) 8 SCC 692 . 12. Before entering into the merit of the submissions made on behalf of the parties, it is apposite to settle and clarify the position of law governing the factual aspects of this appeal. 13. What needs to be noted, at the very outset, is that O. VIIR. 11 of GPC makes it clear that if a plaint falls in any of the categories mentioned under this Rule the Court has really no discretion but to reject the plaint. Under Rule ll(d), one of the conditions for rejecting the plaint is that the suit appears from the statements contained in the plaint to be barred by law. 14. Thus, a plain reading of O. VII Rule 11 makes it abundantly clear that if a suit from the statement contained in the plaint, appears to be barred by any law, the Court has no option but to reject the plaint. Reliance, placed in this regard, by Mr. 14. Thus, a plain reading of O. VII Rule 11 makes it abundantly clear that if a suit from the statement contained in the plaint, appears to be barred by any law, the Court has no option but to reject the plaint. Reliance, placed in this regard, by Mr. Sattar on H. Dwijamani Deva Sharma (supra) is not misplaced. 15.O. XIV Rule 2 shows that normally, Court shall pronounce judgment on all issues, but when such a suit can be disposed of on an issue of law only, the Court may, under sub-rule (2), try such an issue, as a preliminary issue, if the issue relates to jurisdiction of the Court or a bar to the suit created by law. 16. In the case at hand, if the suit could have been disposed of on the point of law alone under Clause (b) of Sub-Rule (2), there was no legal impediment on the part of the learned trial Court to dispose of the suit by deciding the issue No. 5 as a preliminary issue. 17. Now, coming to the said Act, it may be noted that Section 1(3) lays down that the provisions of Section 3,5 and 8 of the Act shall come into force at once, i.e. on 5th September, 1988. This shows that as far as Section 4 of the said Act is concerned, it shall be deemed to have come into effect on 19th May, 1988. Since the present suit has been instituted in the year 1995, it is clear that on the date on which the suit was instituted, the said Act was in force and if the said Act prohibits filing of suit of the nature as the one that we have at hand, then, there can be no escape from the conclusion that such a suit will be barred by law and in such an event, the Court can have no option, but to reject the plaint as provided under O. VII R. 1 l(d). 18. Section 4(1) of the said Act reads as follows: "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." 19. 18. Section 4(1) of the said Act reads as follows: "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." 19. A bare reading of Section 4(1) of the said Act shows that a person, who claims to be the real owner of a benami property, cannot institute any suit to enforce any right in respect of such property against the person in whose name the property stands. 20. It may be noted that the plaintiffs want to enforce their right of joint ownership in respect of the said property, which palpably goes against the interest of the heirs of the person in whose name the property stands. If a suit, in effect, aims at enforcing a right in respect of a property held benami against a person in whose name the property stands, then, such a suit will be barred under Section 4(1) of the said Act, unless the suit, as rightly contended by Mr Deka, falls within the purview of the prospective umbrella of Section 4(3). To appreciate this aspect of the matter, let me quote sub-section (3) of Section 4, which reads as follows: - "Nothing in this Section shall apply (a) where the person in whose name the property is held is a coparcener 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 a trustee or towards whom he stands in such capacity." 21. A bare reading of sub-section (3) shows that this sub-section contains two exceptions to Section 4(1), the first exception being that the property stands in the name of a person, who is a coparcener in a Hindu Undivided Family and the property is held for the benefit of the coparceners of the family. The present case is, however, a case of Muslim family. The second exception is contained in Section 4(3)(b). 22. The present case is, however, a case of Muslim family. The second exception is contained in Section 4(3)(b). 22. A careful reading of Clause (b) of Section 4(3) shows that a person, who claims to be real owner of a property held benami, may file a suit to enforce his right in respect of such a property against the person in whose name the property .stands, provided that the person in whose name the property stands is (i) either a trustee or stands in a fiduciary capacity towards the person, who claims to be the real owner of the property, and (ii) that the property is held by such person (i.e., trustee or person standing in fiduciary capacity) not for his own benefit, but for the benefit of the person for whom he has been made a trustee or towards whom he stands in fiduciary capacity. 23. What is glaringly noticeable in Section 4(3)(b) is that for application of Clause (b), the person, in whose name the property stands, shall not to be a beneficiary, but that he must merely be either a trustee or a person standing in fiduciary capacity towards those persons for whose benefit the property is held by him. 24. In other words, a comparative study of Section 4(1) and Section 4(3)(b) shows that under sub-section (1), no suit can be filed by a person, who claims to be the real owner of the property held benami to enforce his right as owner of the property in respect of such property against the person in whose name the property stands, but sub-section 4(3 )(b) relieves the rigour of Section 4(1) by laying down that a suit can be instituted by a person to enforce a right in respect of a property, held benami, against a person in whose name the property stands, provided that the institutor of the suit can show that the person, in whose name the property stands, is merely a trustee or is a person standing in fiduciary capacity and that such trustee or the person with fiduciary capacity was not meant to be one of the beneficiaries of such property and that such trustee and/or person standing in fiduciary capacity holds the property for the benefit of others for whom he has to act as the trustee or towards whom he stands in fiduciary capacity. 25. 25. Since the learned trial Court has declined by issue No. 5 as a preliminary issue on the ground that this issue raises a mixed question of facts as well as law and since the defendants' contend before this Court that this issue could have been disposed of on the basis of contents of the plaint itself without taking evidence, it becomes clear that if issue No. 5 did not involve determination a mixed questions of facts as well as law and if it could have been disposed of on the basis of the contents of the plaint itself, then, this Court will have no option, but to hold that issue No. 5 could have been disposed of as a preliminary issue and that there, thus, was failure on the part of the learned trial Court to exercise jurisdiction vested in it by law. 26. In the case at hand, the defendants-petitioners contend that a bare reading of the plaint, particularly, contents of para 3, make it clear that the plaintiffs instituted the suit seeking to enforce a right, which was based on a benami transaction, inasmuch as the suit land was, as indicated above, purchased, according to the plaint itself, by Poliyancha Sheikh out of the joint fund of the said joint family for the benefit of not only Ayub Ali and his family, but also for the members of Poliyancha Sheikh's whole family. This contention of the defendants appear to be correct and well-funded. In fact, Mr Deka has not succeeded in showing that the issue No. 5 could not have been disposed of on the basis of the contents of the plaint. The impugned order, however, assigns, I find, no reason whatsoever as to why the learned trial Court did not feel satisfied that the contents of the plaint, particularly, para 3 thereof, make the suit barred by law. Thus, refusal of the learned trial Court to try issue No. 5 as a preliminary issue without assigning any reason therefore is a glaring failure to exercise jurisdiction. 27. Thus, refusal of the learned trial Court to try issue No. 5 as a preliminary issue without assigning any reason therefore is a glaring failure to exercise jurisdiction. 27. Situated thus, I have no hesitation in holding that to the case at hand, law laid down in T.H. Musthaffa (supra) does not apply inasmuch as T.H. Musthaffa's case was not a case in which plaint itself had shown that it was not maintainable in law; rather, it was a case in which facts were in dispute and the Apex Court held that without foundation of such a pleading in the written statement, preliminary issue cannot be framed. 28. Mr Deka's reliance on the case of Lufthansa German Airlines (supra) too is clearly misplaced, because in this case, the issue as to whether the suit stood barred by limitation did not arise on the basis of the allegations made in the plaint and the Apex Court held that such an issue should not have been tried as preliminary issue. In fact, setting at rest the controversy in this very case, the Apex Court has laid down that such Rule (2) of Rule 2 of O. XIV is an exception, where a suit can be disposed of on question of law only. If, in the case at hand, the suit can be disposed of on pure question of law on the basis of the contents of the plaint itself and without taking any evidence, there is no bar in disposing of the suit by framing a preliminary issue. 29. Though it is true, as contended by Mr Deka, that the defendants have not specifically stated in their written statement that the suit is barred by the provisions of the said Act., the fact remains that the defendants did say in their written statement that the suit is not maintainable in law. That apart, record reveals that when the draft issues were submitted by the parties to the learned Court below, one of the issues raised by the defendants was to the effect whether the suit was barred by provisions of the said Act and whether the plaint was liable to be rejected. That apart, record reveals that when the draft issues were submitted by the parties to the learned Court below, one of the issues raised by the defendants was to the effect whether the suit was barred by provisions of the said Act and whether the plaint was liable to be rejected. In fact, the learned trial Court has framed issue No. 5, which reads, "whether the suit is barred by the provisions of the Benami Transaction Act and whether the suit is liable to be rejected?: Thus, it has been known to both the parties from the beginning that one of the issues involved in the trial was if the suit was barred under the provisions of the said Act and whether the plaint was liable to be rejected. In a situation, such as this, if the reading of the plaint itself clearly reveals that the suit is barred by the said Act, the matter must not be allowed to be dragged through a trial, but the learned Court, it transpires from the impugned order, cut the matter short by abruptly holding that the issue raised mixed question of facts as well as law, but it assigned no reason for reaching such a conclusion. Thus, the learned trial Court refused to exercise the powers vested in it by Order XIV Rule 2 without any valid reasons. 30. Unable to show that the suit cannot be disposed of on the basis of the statements contained in the plaint, Mr Deka has tried to put the case of the plaintiffs within the ambit of the protective umbrella of Section 4(3)(b). In this regard, I may, at this stage, also hasten to add that in the case at hand, if a plain reading of the plaint shows that the property did not merely stand in the name of Ayub AH, but that he too was one of the beneficiaries alongwith others for whose benefit the property had allegedly been purchased, then, Section 4(3)(b) will not protect the suit. 31. What, therefore, crystallises from the above discussions is that the issue No. 5 required the Court to decide if the suit was barred by the said Act and if the plaint deserved to be rejected. This issue can be disposed of on the basis of the contents of the plaint itself and no evidence is required to be recorded to determine this issue. This issue can be disposed of on the basis of the contents of the plaint itself and no evidence is required to be recorded to determine this issue. Hence, this issue does not involve a mixed question of facts and law and this issue must, therefore, be heard as a preliminary issue under Order XIV Rule 2(2). The plaintiffs, however, assert that the suit is protected under Section 4(3 )(b). Whether the suit is protected or not under Section 4(3)(b) is an aspect of issue No. 5, which has to be decided by the learned trial Court as a preliminary issue. If the suit, on the basis of the statements contained in the plaint, is protected under Section 4(3)(b), the issue No. 5 will be answered in the negative, but if the suit is not so protected, then, the issue has to be decided in the affirmative and in favour of the defendants-petitioners. Moreover, if the answer to the issue No. 5 is in the affirmative, then, the appropriate course open to the learned trial Court is to reject the plaint in terms of Order VII Rule 1 l(d) of the Code. 32. In the result and for the reasons discussed above, this revision succeeds, the impugned order, dated 9.6.97 aforesaid, is set aside and the suit is remanded to the learned trial Court with direction to dispose of issue No. 5 as a preliminary issue keeping, however, in view the position of law as indicated hereinabove. Send back forthwith the case record with a copy of this judgment and order to the learned Court below.