ORDER : Mr. Jainendra Kumar Ranka, J. 1. Instant revision petition is directed against order dated 4.2.2016 passed by Senior Civil Judge & Addl. Chief Judicial Magistrate, Beawar, in Civil Suit No. 22/2015, whereby the application filed by petitioner under Order 7, Rule 11 CPC, has been dismissed. 2. Brief facts noticed are that the plaintiff-non petitioner filed a suit for partition and permanent injunction against the petitioners and proforma non-petitioner nos.2 to 5 initially before Additional District Judge No. 1, Beawar which was subsequently, vide order dated 29.9.2015 returned to the plaintiff for want of pecuniary jurisdiction for filing the same before the competent court and then the said plaint was filed before Senior Civil Judge, Beawar. It was alleged by the plaintiff that residential property bearing municipal no.6/283 new number 7, Diggi Mohalla, Gali No. 2, House No. 3 [immovable property] was purchased through registered sale deed dated 15.5.1993 executed in favour of defendant-petitioner no.1. It was further alleged by the plaintiff that the transaction of purchase of the immovable property in question was a benami transaction. It was further alleged by the plaintiff that defendant no.1 was having no source of income, therefore, she was not having the capacity to purchase the said immovable property. It was further alleged by the plaintiff that since the property in question was purchased by his father from his own sources and his father has died, therefore, he being son of Late Shri Rajmal Janjhari, was having half share in the property in dispute. The plaintiff prayed for a decree of partition as well as a decree of permanent injunction in his favour. 3. On receiving summons of the suit, the petitioners put their appearance through counsel and petitioner no.2 filed an application under Order 7, Rule 11 CPC r/w section 4 of the Benami Transactions (Prohibition) Act, 1988 stating therein that the plaintiff despite of having knowledge that the property in dispute was purchased by petitioner no.1 through registered sale deed, has stated contrary, wrongful and illegal averments in para no.2 of the plaint by asserting that the transaction of purchase of property in dispute through registered sale deed in favour of petitioner no.1 was a Benami transaction. It was further stated that entire suit of the plaintiff was based on the said averment made by him on oath, and as section 4 of the Benami Transactions (Prohibition) Act, 1988 creates an absolute bar to enforce any right in respect to any property held Benami against the person in whose name the property is held, thus, the suit filed by the plaintiff being barred by section 4 of the Act 1988, was liable to be dismissed. 4. Plaintiff filed reply to the application in which he denied the averments made by the petitioner and prayed for dismissal of the application. 5. Learned Trial Court after hearing the parties dismissed the application vide impugned order. Hence this petition. 6. Learned counsel for the petitioners contended that the suit as filed was barred by section 4 of the Act 1988 and the same could be assessed by a meaningful reading of the plaint's averments. He vehemently contended that plaintiff's case was based on the foundation that a property was purchased benami by Shri Rajmalji in his wife's name and thus the suit, claim was categorically prohibited by virtue of section 4 of the Act 1988 and was liable to be rejected at the threshold. He relied upon Bidami Devi v. Shravan Kumar Jangid 2012 (1) DNJ 176, Smt. Mridula Singh alias Bulbul and Others v. Brahmdeo Pd. Singh & Others AIR 2006 Patna 27, Varun Thakore v. D.P. Thakore, 1998 (1) RCR (Civil) 603. 7. Per contra, learned counsel for the respondent supported the impugned order and contended that there is no jurisdictional error in the impugned order and no interference is called for. He relied upon the judgment of the apex court in the case of Nand Kishore Mehra v. Sushila Mehra (1995) 4 SCC 572 . 8. I have heard leaned counsel for the parties carefully and perused the facts and the authorities cited and the impugned order. It would be appropriate to quote Sections 3 & 4 of the Act 1988 :- “3. Prohibition of benami transactions.-(1) No person shall enter into any benami transaction. 8. I have heard leaned counsel for the parties carefully and perused the facts and the authorities cited and the impugned order. It would be appropriate to quote Sections 3 & 4 of the Act 1988 :- “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 (ii) 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-cognisable and bailable. 4. Prohibition of the right to recover property held benami.-(1) 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 in any suit, claim or action 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.” 9. The apex court in the case of Nand Kishore Mehra v. Sushila Mehra (supra) relied upon by the learned counsel for the respondent, in my view is squarely applicable in the present context. It would be appropriate to quote the relevant paras of the judgment :- “6. Sub-section (1) of Section 3, as seen, prohibits a person from entering into any benami transaction. Sub-section (3) of Section 3, as seen, makes a person who enters into a benami transaction liable for punishment. Section 5 makes properties held benami liable for acquisition without payment of any amount. But, when sub-section (2) of Section 3 permits a person to enter into a benami transaction of purchase of property in the name of his wife or unmarried daughter by declaring that the prohibition contained against a person in entering into a benami transaction in subsection (1) of Section 3, does not apply to him, question of punishing the person concerned in the transaction under sub-section (3) thereof or the question of acquiring the property concerned in the transaction under Section 5, can never arise, as otherwise the exemption granted under Section 3(2) would become redundant. What we have said of the person and the property concerned in subsection (2) of Section 3 in relation to non-applicability of Section 3(3) and Section 5 shall equally hold good for non-applicability of the provisions of sub-sections (1) and (2) of Section 4 in the matter of filing of the suit or taking up the defence for the self same reason. Further, we find it difficult to hold that a person permitted to purchase a property in the name of his wife or unmarried daughter under sub-section (2) of Section 3 notwithstanding the prohibition to enter into a benami transaction contained in sub-section (1) of Section 3 cannot enforce his rights arising therefrom, for to hold so would amount to holding that the Statute which allows creation or rights by a benami transaction also prohibits the enforcement of such rights, a contradiction which can never be attributed to a Statute. If that be so, there can be no valid reason to deny to a person, enforcement of his rights validly acquired even in the past by purchase of property in the name of his wife or unmarried daughter, by making applicable the prohibition contained in respect of filing of suits or taking up of defences imposed in respect of benami transactions in general by sub-sections (1) and (2) of Section 4 of the Act. But, it has to be made clear that when a suit is filed or defence is taken in respect of such benami transaction involving purchase of property by any person in the name of his wife or unmarried daughter, he cannot succeed in such suit on defence unless he proves that the property although purchased in the name of his wife or unmarried daughter, the same had not been purchased for the benefit of either the wife or the unmarried daughter, as the case may be, because of the statutory presumption contained in sub-section (2) of Section 3 that unless a contrary is proved that the purchase of property by the person in the name of his wife or his unmarried daughter, as the case may be, was for her benefit. 7. Therefore, our answer to the question under consideration is that neither the filing of a suit nor taking of a defence in respect of either the present or past benami transaction involving the purchase of property by a person in the name of his wife or unmarried daughter is prohibited under sub-sections (1) and (2) of Section 4 of the Act. 8. Coming to the facts of the case on hand, the plaintiff had filed the suit in the High Court seeking relief in respect of properties alleged to have been purchased benami in the name of the defendant-his wife. 8. Coming to the facts of the case on hand, the plaintiff had filed the suit in the High Court seeking relief in respect of properties alleged to have been purchased benami in the name of the defendant-his wife. A learned single Judge rejected the application filed by the defendant in that suit seeking rejection of the plaint on the ground that the suit was barred under Section 4 of the Act. The order of rejection of that application was appealed against by the defendant in a First Appeal filed in the same court. A Division Bench of the High Court reversed the order of the learned Single Judge and granted the application of the defendant made in the suit seeking rejection of the plaint. It is that order which is now questioned by the plaintiff-husband in this appeal. Since the plaintiff is the husband who had the right to enter into a benami transaction in the matter of purchase of property in the name of his wife or unmarried daughter, as we have held earlier, he is entitled to enforce his rights in the properties concerned if he can succeed in showing that he had purchased them benami in the name of his wife. But in view of the statutory presumption incorporated in subsection (2) of section 3 of the Act, he can get relief sought in the suit only if he can prove that the properties concerned had not been purchased for the benefit of the wife, even if he succeeds in showing that the consideration for the purchases of the properties had been paid by him.” 9.1. This court in the case of Bidami Devi v. Shravan Kumar Jangid (supra) has held that such an objection cannot be decided in absence of evidence. It would be relevant to quote :- “6. Having given thoughtful consideration, I do come to the conclusion that the trial court has rightly held that the aforesaid objection of Benami transaction raised by the defendant-petitioner cannot be decided in absence of evidence. Further, simply on account of inclusion of one of the parental properties situated at Nagaur, the civil suit for partition of the three properties situated at Jaipur can not be dismissed under section 16 of the CPC. Further, simply on account of inclusion of one of the parental properties situated at Nagaur, the civil suit for partition of the three properties situated at Jaipur can not be dismissed under section 16 of the CPC. The trial court has rightly considered only the averment of the plaint, therefore, I find no illegality or material irregularity in the impugned order of the trial court passed in exercise of its jurisdiction. The revision petition is dismissed. However, it is expected that the trial court will decide the civil suit within a period of six months from the date of receipt of certified copy of this order.” 10. Taking into consideration the aforesaid, in my view the application moved by the petitioner was rightly rejected by the learned Trial Court. 11. However, before parting, a word of caution is required to be noted. Although in terms of section 3 of the Act 1988, a husband has a right to enter into benami transaction in the matter of purchase of property in the name of his wife or unmarried daughter but in sub-section (2) of section 3 of the Act there is a statutory presumption that the same was purchased by him for the benefit of the wife or the unmarried daughter and to get over the same one has to strictly prove that the same was not intended to be purchased for the benefit of the wife or the unmarried daughter. Ultimately if the plaintiff is unable to discharge his burden against the statutory presumption, the suit may fail, being barred by the Act 1988. 12. Consequently, keeping in view the peculiar facts and circumstances of the case, the instant revision is disposed of with the direction to the trial court to finally decide the main suit within a period of 15 months from the date of receipt of certified copy of this order keeping in view the close relations between the parties and taking into consideration the observations made herein, in accordance with law.