Hon'ble KOTHARI, J.—In a legal battle between the mother-in-law and daughter-in-law of predeceased son, this writ petition under Article 227 of the Constitution of India has been filed by mother-in-law Smt. Shanta Devi W/o late Sh. Anand Prakash, who is also said to have expired during the pendency of this writ petition, and her son Pradeep Kumar against the respondents-plaintiffs-Smt. Aarti Devi W/o predeceased son Suresh Kumar and her two children Dikshita and Gungun being aggrieved by the order dtd. 18.11.2009 passed by the learned Additional Distt. Judge (Fast Track) No. 2, Udaipur in Civil Original Suit No. 261/2008- Smt. Arti Devi vs. Smt. Shanta Devi rejecting the three applications of the defendants-petitioners in a suit for declaration, partition and injunction filed by the respondents- plaintiffs in the trial court in respect of suit property situated at Hiran Magri, Sector 4; House No. 1167 at Udaipur. 2. The plaintiff Smt. Aarti Devi W/o predeceased son Suresh Kumar filed the present suit claiming that the said suit property was purchased by her husband vide registered sale-deed on 17.3.1992 in the name of his younger unmarried brother Anil Kumar, who is also said to have died since then and who was `benamidar' of the suit property and the said property really belonged to her husband in which the present defendants and petitioners , her mother-in-law Smt. Shanta Devi and brother-in-law Pradeep Kumar were residing on the ground floor and therefore, the declaration in this regard may be given to the plaintiffs that the suit property belonged to her husband and also grant injunction against the defendants not to disturb her peaceful possession of the first floor of the suit property. 3. The defendants filed an application under Order 7 Rule 11 CPC questioning the maintainability of the suit itself and according to the defendants, the same was hit by Section 3 and 4 of the Benami Transaction (Prohibition) Act, 1988 and by other applications, question of limitation and court fee valuation was also raised by the defendants. 4. These applications were contested by the plaintiffs and the learned trial Court by the impugned order dtd. 18.11.2009 rejected all the three applications of the defendants and hence the present writ petition has been filed by the defendants-petitioners. 5. 4. These applications were contested by the plaintiffs and the learned trial Court by the impugned order dtd. 18.11.2009 rejected all the three applications of the defendants and hence the present writ petition has been filed by the defendants-petitioners. 5. Dr.Sachin Acharya, learned counsel appearing for the petitioners-defendants relying upon the provisions of Benami Transactions (Prohibition) Act, 1988 and various judgments submitted that the sale-deed question being of 17.3.1992 after enforcement of said Prohibition Act, 1988 with effect from 19.5.1988, Section 3 clearly prohibited any benami transaction and Section 4 clearly prohibits right to recover the property allegedly held Benami and hence the suit filed by the plaintiffs Aarti Devi w/o late Sh. Suresh Kumar was simply not maintainable and the learned court below has erred in holding that it being a mixed question of facts and law should be decided only after leading of evidence even though as a preliminary issue and the suit could not be dismissed on the anvil of Order 7 Rule 11 CPC. Similarly, the learned trial Court has erred in rejecting the application of the defendants that the suit was time barred since in the plaint itself, it was shown that the cause of action had arisen to the plaintiffs on 11.11.2008, whereas the registered sale-deed in question in favour of Anil Kumar was of 17.3.1992 and therefore, as per Article 58 of the Limitation Act, 1963, the said suit for declaration could be filed only within a period of 3 years of 17.3.1992 and the suit being time barred also deserves to be dismissed at the threshold. He also submitted that the court fee paid by the plaintiff was inadequate and the objections raised in the application of the defendants has also been wrongly rejected by the learned trial Court. 6. Dr. Sachin Acharya, therefore, emphatically submitted that the suit itself was not maintainable being hit by Section 4 of the Benami Transaction (Prohibition) Act, 1988 and he supported his contention with the following judgments. 7. 6. Dr. Sachin Acharya, therefore, emphatically submitted that the suit itself was not maintainable being hit by Section 4 of the Benami Transaction (Prohibition) Act, 1988 and he supported his contention with the following judgments. 7. In the case of Om Prakash vs. Jai Prakash reported in 1992(1) SCC 710 , the Hon'ble Supreme Court held as under: "There is a clear prohibition under Section 4 of the Benami Act that 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. It is well settled that an appeal is a continuation of suit and in the present case the appeal was pending before this Court. There is no manner of dispute that the present suit had been filed by the plaintiff-respondent claiming that he was the real owner of the property and the names of the defendants-appellants were mentioned in the sale deeds as benami. In our view, Section 4 of the Benami Act is a total prohibition against any suit based on benami transaction and the plaintiff-respondent is not entitled to get any decree in such suit or in appeal. 10. As a result of the above discussion, we allow this appeal, set aside the Judgment and decree of the High Court and dismiss the suit in view of the fact that the suit is dismissed on account of legislative change brought about during the pendency of the appeal in this Court, there would be no order as to cost." 8. Dr. Sachin Acharya also relied upon the decision of Karnataka High Court in the case of Murlidhar Deshpande vs. Hanumantha Rao reported in 2007 AIHC 319, in which the learned Single Judge of Karnataka High Court held as under: "25. In so far as operation of the provisions of S.4(1) of the Act and as to whether it is prospective or retrospective as understood by the learned trial Judge is concerned, the matter was not res integra and was covered by the decision of the Supreme Court in R.A. Rajgopal Redd's case ( AIR 1996 SC 238 ). In so far as operation of the provisions of S.4(1) of the Act and as to whether it is prospective or retrospective as understood by the learned trial Judge is concerned, the matter was not res integra and was covered by the decision of the Supreme Court in R.A. Rajgopal Redd's case ( AIR 1996 SC 238 ). The confusion that has crept in the discussion by the learned trial Judge is not realising the distinction between Sections 3 and 4 of the Act. 26. While under S. 3 of the Act, no person can enter into a benami transaction on and after the Act has come into force i.e., the said transactions are not recognised and not taken note of etc., under S. 4 of the Act, even if such transactions had been entered into before the Act coming into force, a suit for declaration of the nature of transaction is not tenable on and after the Act has come into force. 27. It is not in dispute that the suit filed in the year 1994 is much subsequent to the Act coming into force and therefore necessarily the prohibition under S. 4(1) of the Act operates for any declaration in favour of the plaintiff to declare that the defendant was a benamidar or a name lender for the plaintiff in respect of a particular transaction and the plaintiff is the real owner etc... 28. If such is the legal position, the point No. 2 has to be necessarily answered in favour of the defendants i.e., the present appellants." 9. In the judgment relied upon by the learned counsel for the petitioner in the case of Rameshwar Mistry vs. Babu Lal Mistry reported in 1991 AIR Patna 53, the learned Single Judge (Hon'ble S.B. Sinha, J, as his lordships then was) held that acquisition of property even in the name of wife of a coparcener of the joint family constitutes benami transaction prohibited by Section 4 and such acquisition cannot be saved by Section 3(2) of the said Act. The relevant extract of the said judgment is quoted below for ready reference: "36. An acquisition of property in the name of his wife of a coparcener by the joint family will, in my opinion, constitute a benami transaction and will not be saved under Section 3(2) of the said Act. The relevant extract of the said judgment is quoted below for ready reference: "36. An acquisition of property in the name of his wife of a coparcener by the joint family will, in my opinion, constitute a benami transaction and will not be saved under Section 3(2) of the said Act. From a bare perusal of Section 4(3) of the said Act, it is evident that even such a case is not protected thereunder. 37. In this view of the matter, in my opinion, it has to be held that the suit filed by the plaintiff in respect of Items Nos. (iii) and (iv) of the Schedule B appended to the plaint was barred under the Provisions of Benami Transaction (Prohibition) Act, 1988." 10. On the other hand, Mr. Arpit Bhoot, learned counsel appearing for the respondents-plaintiffs relying upon the several case-laws vehemently contended that it was not the only prayer of declaration which was made in the plaint, but injunction relief was also sought against the defendants and therefore, the suit was not hit by Section 3 and 4 of the Benani Transaction (Prohibition) Act and the learned trial Court has rightly held in the impugned order that the preliminary issue in this regard deserves to be framed which can be decided after leading of evidence by the parties. As regards the other issues of court fee and limitation also, he urged that these being mixed questions of facts and law have rightly been directed to be decided after the parties lead evidence and therefore, the impugned property is transferred. In fact, the purchased is prima facie to be inferred. The intention of the person who contributed towards the money has to be inferred from the circumstances and relationship of the parties and the motive governing their action in brining about the transaction and their subsequent conduct." 13. In another judgment relied upon by Mr. Arpit Bhoot, in the case of Smt. Mridula Singh alias Balbul vs. Brahmdo Pd. Singh reported in AIR 2006 Patna 207, the learned Single Judge of Patna High Court held that since the defendants by filing application under Order 7 Rule 11 CPC. In another judgment relied upon by Mr. Arpit Bhoot, in the case of Smt. Mridula Singh alias Balbul vs. Brahmdo Pd. Singh reported in AIR 2006 Patna 207, the learned Single Judge of Patna High Court held that since the defendants by filing application under Order 7 Rule 11 CPC. while seeking rejection of plaint also sought the issue relating to Benami property to be decided as preliminary issue, the learned trial Court should decide the same after framing the preliminary issue in this regard and allowing the parties to lead evidence. Relevant para 16 of the said judgment is quoted below for ready reference: "16. In the aforesaid circumstances, the only question which remains for consideration is that whether the suit can proceed in view of the bar as provided under Section 4(1) of the Act. But the petition of the said defendant is not clear as to whether she wants to get the plaint rejected or she wants the said question to be decided as a preliminary issue. However, the defendants-petitioners have pleaded that if by dexterity of drafter the plaintiff avoids some words in the plaint which would make relief of declaration consequential upon other relief requiring ad-valorem Court fees, the plaintiff has to pay ad-valorem Court fee as it is dependent not on the form of pleadings but on real substance of reliefs claimed." 14. The Judgment in the case of Marcel Martins vs. M. Printer and Ors. reported in AIR 2012 SC 1987 , relied upon the learned counsel for the respondents-plaintiffs was relating to fiduciary relationship in the case of trust, which is not applicable in the present case as no fiduciary capacity is claimed by either of the parties in the present case. Relevant para 13 and 14 of the said judgment is quoted below for ready reference: "13. A plain reading of the above will show that no suit, claim or action to enforce a right in respect of any property held benami shall lie against the person in whose name the property is held or against any other person at the instance of a person claiming to be the real owner of such property. A plain reading of the above will show that no suit, claim or action to enforce a right in respect of any property held benami shall lie against the person in whose name the property is held or against any other person at the instance of a person claiming to be the real owner of such property. It is common ground that although the sale deed by which the property was transferred in the name of the Appellant had been executed before the enactment of above legislation yet the suit out of which this appeal arises had been filed after the year 1988. The prohibition contained in Section 4 would, therefore, apply to such a suit, subject to the satisfaction of other conditions stipulated therein. In other words unless the conditions contained in Section 4(1) and (2) are held to be inapplicable by reason of anything contained in Sub-section(3) thereof the suit filed by Plaintiffs-respondents herein would fall within the mischief of Section 4. 14. The critical question then is whether Sub-section (3) of Section 4 saves a transaction like the one with which we are concerned Sub-section(3) to Section 4 extracted above is no two distinct parts. The first part comprises Clause (a) to Section 4(3) which deals with acquisitions by and in the name of a coparcener in a Hindu undivided family for the benefit of such coparceners in the family. There is no dispute that the said provision has no application in the instant case nor was any reliance placed upon the same by Learned Counsel for the Plaintiffs-respondents. What was invoked by Mr. Naveen R. Nath, Learned Counsel appearing for the Respondents was Section 4(3)(b) of the Act which too is in two parts viz one that deals with trustees and the beneficiaries thereof and the other than deals with persons standing in a fiduciary capacity and those towards whom he stands in such capacity. It was argued by Mr. Nath that the circumstances in which the purchase in question was made in the name of the Appellant assumes great importance while determining whether the Appellant in whose name the property was acquired stood in a fiduciary capacity towards the Plaintiffs-respondents." 15. The judgment in the case of C. Natarajan vs. Ashim Bai reported in AIR 2008 SC 363 was relied upon by Mr. Arpit Bhoot with regard to issue of limitation. 16. The judgment in the case of C. Natarajan vs. Ashim Bai reported in AIR 2008 SC 363 was relied upon by Mr. Arpit Bhoot with regard to issue of limitation. 16. In the case of Adesh Kanwarjit Singh Brar vs. Ms. Babli Brar and Ors. reported in AIR 2011 Delhi 187. Mr. Arpit Bhoot urged that where father acquires the property in the name of minor child from the funds of his minor child, he acts in fiduciary capacity vis-a-vis the child and such a suit would not be barred by Section 4 of the Benami Transaction (Prohibition) Act, 1988. The decision in the case of Satyendra Dwivedi vs. Smt. Hemlata Dwivedi and Ors. reported in AIR 2009 Chhattisgarh 3 was relied upon by the learned counsel to support his contention that where one of the reliefs is alleged to be barred under any law, the entire plaint cannot be rejected. 17. I have heard the learned counsels for the parties at length and carefully considered the impugned order and case-laws cited at the Bar. 18. Section 3 and 4 of the Benami Transaction (Prohibition) Act, 1988 are quoted below for ready reference: "3. Prohibition of benami transactions.-(1) No person shall enter into any 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 registered owner under sub-section (1) of Section 10 of the Depositories Act, 1996. (iii) participant as an agent of a depository. Explanation.-The expressions "depository" and "Participants" 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 term 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. (3) Whoever enters into any benami transaction shall be punishable with imprisonment for a term 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:-(1) No suit, claim or action to enforce and 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 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 or towards whom he stands in such capacity." 19. It is clear from the provisions of the Act and the legal position cited at the bar that no suit, claim or action to enforce any right in respect of property held Benami as defined in section 2(9) of the Act can be filed nor any such defence can be taken in such suit except when the case falls in exceptions provided in Section 4(3) of the Act. While Section 3(1) completely prohibits benami transactions, Section 3(2) carves out an exception only when the property in question is purchased in the name of wife or unmarried daughter and Section 3(3) of the Act provides for imprisonment upto 3 years and fine in such cases. While Section 3(1) completely prohibits benami transactions, Section 3(2) carves out an exception only when the property in question is purchased in the name of wife or unmarried daughter and Section 3(3) of the Act provides for imprisonment upto 3 years and fine in such cases. Section 4 provides for a blanket ban to recover the property held in benami name except when the property is held by a coparcener in Hindu undivided family and the property is held for the benefit of the coparcener in the family or where the property in whose name the property is held is 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 fiduciary capacity. 20. This position of law being clear, the plaint averments in the present case seeking declaration in respect of suit property with a clear stipulation that the plaintiffs husband Suresh Kumar purchased the said property in the name of his brother only as Benamidar and Suresh Kumar only was the real owner of the suit property is clearly hit by Section 4 of the Act as it is not the case set up by the plaintiffs that the suit property is a HUF property and the same was purchased in the name of Anil Kumar as coparcener and the property is held for the benefit of coparceners in the family and therefore, the question of applying exceptions under Section 4(3) of the Act does not arise nor the plaintiffs have stated that the property is held by the trust or any other person standing in a fiduciary capacity and therefore both the exceptions of Section 4(3) of the Act do not apply in the present case. 21. 21. It would be relevant to reproduce para 2 of the plaint as well as prayer clause to understand the case set up by the plaintiff: ^^2- ;g fd oknh la[;k 1 ds ifr ,oa oknh la[;k 2 o 3 ds firk LoxhZ; Jh lqjs'k dqekj th pqx m|ksx foHkkx esa ukSdjh djrs Fksa ,oa lkFk gh izkWiVhZ [kjhn Qjks[r o mldh nykyh dk O;olk; djrs FksA LoxhZ; lqjs'k dqekj th dk viuk futh LokfeRo dk dksbZ edku ugha Fkk] rnuqlkj edku cuokus gsrq lqjs'k dqekj th pq?k us IykaV ds Lokeh jes'k pUnz firk iUukyky th prqosZnh ls lEidZ fd;k rFkk mlls IykaV [kjhnus ckcr tqckuh vuqca/k fd;k ,oa fnukad 31-1-92 dks jes'k pUnz us iaftd`r ikWoj vkWQ vVuhZ LoxhZ; lqjs'k dqekj th ds i{k esa fu"ikfnr dj nh vkSj ckn esa pwafd lqjs'k dqekj th us vius uke ij ikWoj vkWQ ,VkuhZ yh Fkh blfy, vius NksVs HkkbZ vfuy dqekj tks mu fnuksa okfn;k la[;k 1 ds ifr LoxhZ; lqjs'k dqekj th pq?k ds lkFk gh jg jgk FkkA dsoy HkkbZ gksus vkSj vfuy dqekj ds lkFk fQM;wljh ;kfu oS'okfld laca/k gksus ds ukrs mlds i{k esa iaft;u djok fn;kA ftldk iSlk jes'k pUnz dks LoxhZ; lqjs'k dqekj }kjk gh vnk fd;k x;kA vfuy dqekj }kjk dksbZ iSlk ugha fn;k x;k Fkk D;ksafd vfuy dqekj ds ikl dksbZ dke ugha Fkk] u mlds ikl vkenuh dk dksbZ tfj;k Fkk vkSj pwafd LoxhZ; lqjs'k dqekjth us IykWV vius fy;s gh [kjhnk FkkA bl izdkj bl IykWV dk okLrfod Lokeh LoxhZ; lqjs'k dqekj th Fks vkSj vfuy dqekj dsoy csukehnkj Fkk vkSj csukehnkj ds :i esa gh mlds uke ij iaft;u djok;k x;k FkkA IykWV [kjhnus ds i'pkr~ edku Hkh lqjs'k th us gh vius :i;ksa ls cuok;kA** PRAYER IN SUIT ^^vr% izkFkZuk gS fd oknhx.k ds i{k esa ,oa izfroknhx.k ds fo:) fuEu vk'k; dh fMØh iznku djokbZ tkos& ¼d½ fd okn i= dh dye la[;k 1 esa of.kZr lEifr esa oknhx.k dk 3@4 fgLlk gksus ls ,oa izfroknh la[;k 1 dk 1@4 fgLlk gksus ls bl laifr dk lhek ,oa eki ls foHkktu djok;k tkdj i`Fkd i`Fkd vkf/kiR; fnyok;k tkos vkSj foHkktu fd;k tkuk laHko ugha gks rks U;k;ky; ds ek/;e ls bl edku dks fuyke djok;k tkdj izkIr gksus okyh jkf'k esa ls 3@4 jkf'k oknhx.k dks fnyokbZ tkos vkSj 1@4 jkf'k izfroknh la[;k 1 dks fnyokbZ tkosA lkFk gh ;g ?kksf"kr djok;k tkos fd vfuy dqekj dh lEifr dk dsoy csukehnkj Fkk vkSj ;g lEifr lqjs'k dqekj th }kjk Ø; dh xbZ FkhA ¼[k½ fd izfroknh la[;k 2 ds fo:) vkns'kkRed fu"ks/kkKk dh fMØh iznku djokbZ tkdj mls bl laifr ls csn[ky djok;k tkosA lkFk gh oknhx.k ds i{k esa ,oa izfroknhx.k ds fo:) LFkkbZ fu"ks/kkKk dh fMØh ikfjr dh tkos fd og oknxzLr edku esa mUgsa vkus tkus ls ugha jksdsa ,oa muds Åij dh eafty ds vkf/kiR; ,oa jgokl esa fdlh izdkj dk n[ky ugha djsaA ;fn nkSjkus nkok fdlh Hkh izdkj ls okfn;k dks Ny cy ls vius vkf/kiR; ls eg:e dj ns rks mls okil vkf/kiR; fnyok;k tkosA ¼x½ fd [kpkZ eqdnek oknhx.k dks izfroknhx.k ls fnyok;k tkosA ¼?k½ fd vU; dksbZ lgk;rk tks dkuwuu fey ldrh gks fnyokbZ tkosaA** 22. From the aforesaid plaint averments, it is clear that the plaintiff wanted the declaration that the suit property be declared to be in the name of her husband Suresh Kumar and Anil Kumar be declared as mere "benamidar" and being entitled to 3/4" share for herself and two children and on share for herself and two children and on share for defendant No. 1- mother of predeceased son Smt. Shanta Devi, the partition be made accordingly. Thus, on the own saying of the plaintiff, the suit was not covered by any of the exceptions made under Section 4(3) of the Act. Mere use of word "fiduciary' in plaint is misleading, whereas the case is not set up that the property was held by Anil Kumar for the benefit of all the coparceners, otherwise mandatory injunction against one of the coparceners Pradeep Kumar, the defendant No. 2 would not have been sought by the plaintiff. This being the case, the suit was clearly hit by Section 4 of the Benami Transactions (Prohibition) Act and the application under Order 7 Rule 11 CPC deserves to be allowed as the suit was not even maintainable. The other issues relating to court fee and limitation could be said to be mixed questions of facts and law but if the suit itself was not maintainable, the findings of learned trial court on the said questions of limitation and court fee are of no consequence and consequently, the present suit itself deserves to be dismissed and to that extent, the rejection of application of the defendants under Order 7 Rule 11 C.P. by the learned trial Court cannot be sustained. 23. Consequently, the present writ petition filed by the petitioners deser-ves to be allowed and the suit filed by the plaintiffs deserves to be dismissed. 24. Accordingly, the present writ petition is allowed and setting aside the impugned order dtd. 18.11.2009 of the learned trial Court, the civil suit No. 268/2011- Smt. Aarti Devi vs. Smt. Shanta Devi pending in the Court of Additional Dist. Judge (Fast Track) No. 2, Udaipur is hereby dismissed. No order as to costs. A copy of this order be sent to the parties concerned and the learned trial court below forthwith.