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2019 DIGILAW 1309 (JHR)

Saroj Jerath v. Prakriti Singh

2019-07-19

H.C.MISHRA

body2019
JUDGMENT : Heard the learned senior counsel for the defendants petitioners and the learned counsel for the plaintiff opposite party. 2. The defendants petitioners are aggrieved by the impugned order dated 04.10.2018, passed by the learned Sub Judge-I, Ranchi, in Misc. (Civil) Appeal No.241 of 2018, in Original Suit No. 368 of 2018, whereby, the application filed by them under Order VII Rule 11 of the C.P.C., was dismissed by the Trial Court below, stating that the application was not maintainable, as no case was made out by the defendants to reject the plaint under Order VII Rule 11 of the C.P.C., on the ground that the plaintiff was stranger to the family of the defendants and she had no cause of action for bringing the partition suit. Thus, rejecting the plea of the defendants, the suit was admitted. 3. The facts of this case lie in a short compass. The plaintiff, claiming herself to be the third wife of Late Delip Jerath, filed the suit for partition of the suit property, which she claimed to have been purchased by her father-in-law, Late Devi Dayal Jerath, in the name of his wife, Smt. Saroj Jerath, the defendant No.1 in the case. Both the suit property as detailed in the plaint, admittedly stand in the name of the defendant No.1, Smt. Saroj Jerath. 4. The defendants filed the application filed under Order VII Rule 11 of the C.P.C., stating that the plaintiff is an impostor to the family, and is not the legally wedded wife of Late Delip Jerath, and accordingly, she had no cause of action to file the partition suit being a stranger to the family. In course of arguments, learned senior counsel for the petitioners made a further submission that the suit was barred under Section 4 of the Prohibition of Benami Property Transaction Act, 1988, (hereinafter referred to as the 'Act'), as according to the plaint, the plaintiff claimed that the suit property was purchased by her late father-in-law, in the name of the plaintiff's mother-in-law, i.e., defendant No.1 Smt. Saroj Jerath, who is still alive and accordingly, this being a benami transaction, no suit for partition could be brought by the plaintiff during the life time of the defendant No.1. Accordingly, it was a fit case for rejecting the plaint under Order VII Rule 11 of the C.P.C., but the prayer has been negated by the Trial Court below by the impugned order. 5. Learned senior counsel for the petitioners has submitted that the impugned order passed by the Trial Court below cannot be sustained in the eyes of law, in view of the fact that the suit property was purchased in a benami transaction, in the name of defendant No.1 and there is a clear prohibition under Section 4 of the Act, that no suit, claim or action, to enforce any right in respect of any property held benami, could be brought against the person in whose name the property is held, by or on behalf of a person claiming to be the real owner. Learned senior counsel has also placed reliance upon several decisions of the Hon'ble Supreme Court in support of his contention that the suit was not maintainable, being prohibited under Section 4 of the Act, and as such, it is a fit case in which the Trial Court ought to have rejected the plaint at the very outset. 6. Learned counsel for the plaintiff opposite party, on the other hand, has opposed the prayer, submitting that the suit property, in question, is not a benami property under the Act, and admittedly, the plaintiff has filed the suit for partition, claiming herself to be the widow of the son of the defendant No.1. The plaintiff claimed that the suit property was purchased by her late father-in-law, out of his known income, in the name of his spouse, the defendant No.1. 7. Learned counsel has drawn the attention of this Court towards the definition of the 'benami transaction', as defined in Section 2(9)(A)(b)(iii) of the Prohibition of Benami Property Transaction Act, 1988, which reads as follows :- (9) "benami transaction" means,- (A) a transaction or an arrangement- (a) ----------; and (b) the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration, except when the property is held by- (i) ----------; (ii) ---------; (iii) any person being an individual in the name of his spouse or in the name of any child of such individual and the consideration for such property has been provided or paid out of the known sources of the individual. **********" 8. **********" 8. Placing reliance on the definition of the 'benami transaction', learned counsel submits that since the property was purchased out of the known income of Late Devi Dayal Jerath, in the name of his spouse, it shall not come within the meaning of benami transaction and the suit shall not be barred under the aforesaid Act. As such, there was no application of Order VII Rule 11 of the C.P.C., in the present case. Learned counsel submitted that the application filed by the defendant petitioners has rightly been rejected by the Trial Court below. 9. Having heard the learned counsels for both sides and upon going through the plaint filed by the plaintiff, which has been brought on record, I find force in the submission of the learned counsel for the plaintiff opposite party. The averments in the plaint clearly show that the plaintiff claimed herself to be the widow of Late Delip Jerath, and the suit property was purchased by Late Devi Dayal Jerath, out of his known income, in the name of his spouse, the defendant No.1 herein. Accordingly, the suit property cannot be termed to have been purchased in a 'benami transaction' as defined under Section 2(9)(A)(b)(iii) of the aforesaid Act. In that view of the matter, no case was made out by the defendants to reject the plaint under Order VII Rule 11 of the C.P.C. 10. For the foregoing discussions, I do not find any illegality in the impugned order dated 04.10.2018, passed by the learned Sub Judge-I, Ranchi, in Misc. (Civil) Appeal No.241 of 2018, worth any interference in the revisional jurisdiction. 11. There is no merit in this revision application, and the same is accordingly, dismissed. The aforesaid Interlocutory Application also stands disposed of.