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Chhattisgarh High Court · body

2009 DIGILAW 77 (CHH)

KASMUDDIN ANSARI v. FIROZA SHAHIN

2009-03-03

T.P.SHARMA

body2009
ORDER 1. This revision petition is directed against the order dated 7.1.2008 passed by Civil Judge Class II Baikunthpur Distt. Koria in Civil Suit No. 5-A/2008 whereby learned Civil Judge Class II has negatived the issue relating to Benami transaction and arrived at the conclusion that the suit is pending and not barred under Section 4 of the Benami Transactions (Prohibition) Act, 1988 (for short "the Act"). 2. The order is challenged on the ground that the Court below has not considered the specific pleading of the non-applicant/plaintiff that the transaction was Benami, and therefore, committed an illegality. 3. Heard counsel for the parties and perused the copy of plaint and written statement available on record. 4. Counsel for the applicant submits that the non-applicant/plaintiff in paragraph 6 of the plaint has specifically stated that defendant No applicant is a Benami Purchaser and non-applicant No.1 is the real owner. He submits that when the entire pleading of the plaint shows that the non-applicant No.1 purchased the property in the name of the applicant, the same is a Benami transaction according to section 2 of the Act and non-applicant is not entitled to recover the property from the applicant in accordance with section 4 of the Act. 5. On the other hand counsel for the non-applicant No.1 submits that the non-applicant No.1 has not pleaded that the applicant is the Benami purchaser and the non-applicant No.1 is the real owner of the property. Present non-applicant has pleaded in detail in her plaint that the applicant had played fraud by misusing his position and succeeded in getting the sale deed executed in his fraud. She has also pleaded the ingredients of fraud in paragraphs 3, 4 and 7 of the plaint. On the basis of the pleading of the non-applicant, the Court below has decided the issue of Benami transaction in negative which does not suffer from any illegality. 6. It is not disputed that the applicant and the non-applicant are husband and wife. Presently, the property is in the name of the applicant. According to the pleadings of the plaint, the non-applicant has spent money and purchased the property through her husband but instead of executing the sale deed in the name of the non-applicant, he succeeded in executing the same in his name by fraud. Presently, the property is in the name of the applicant. According to the pleadings of the plaint, the non-applicant has spent money and purchased the property through her husband but instead of executing the sale deed in the name of the non-applicant, he succeeded in executing the same in his name by fraud. Section 2(a) of the Act defines the Benami transaction which reads as under: "Benami transaction means any transaction in which property is transferred to one person for a consideration paid or provided by another person;" Section 4 of the Act deals with prohibition of the right to recover property held benami which reads as under: "Prohibition of the right to recover property held benami.-( 1) No suit, claim or action to enforce any right in respect of any properly 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 in any suit, claim or action 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 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 towards whom he stands in such capacity." 7. In this case, in paragraph 6 of the plaint the plaintiffhas pleaded that the applicant is the benami purchaser and the non-applicant is the real owner, with the explanation that by using his position and playing fraud he succeeded in executing the sale deed in his name. Non applicant has not only pleaded that the applicant is the benami purchaser and he purchased the property in his name. On the basis of the pleadings of the plaintiff, the com1 below has negatived the issue of benami transaction. 8. Non applicant has not only pleaded that the applicant is the benami purchaser and he purchased the property in his name. On the basis of the pleadings of the plaintiff, the com1 below has negatived the issue of benami transaction. 8. The Court below has not committed any illegality in negativing the issue of benami transaction. The order impugned being just and proper requires to be maintained. Accordingly, the revision being without substance is liable to be dismissed and it is hereby dismissed. No order as to cost. Revision Dismissed.