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2021 DIGILAW 1812 (MAD)

S. K. A. Noorjahan Beevi v. M. Mohammed Jamil

2021-06-28

K.MURALI SHANKAR

body2021
ORDER : The Civil Revision Petition is directed against the order passed in I.A.No.354 of 2018 in O.S.No.109 of 2013 dated 16.09.2019 on the file of the District Munsif Court, Paramakudi, dismissing the petition filed under Order 7 Rule 11 of Civil Procedure Code. 2. The revision petitioner is the first defendant. The respondents 1 and 2 /plaintiffs filed the above suit in O.S.No.109 of 2013 against the revision petitioner and the respondents 3 to 5 on the file of the District Munsif Court, Paramakudi. 3. For sake convenience and brevity, the parties hereinafter will be referred as per their ranking/status before the Trial Court. 4. Admittedly, the plaintiffs are sons of the first defendant. The plaintiffs, by alleging that the bus bearing Registration No.TN 65 Y 9516 together with permit to ply in the route from Paramakudi to Tirupathur, was owned by them, but the registration certificate and route permit stand in the name of their mother/first defendant, filed the above suit claiming the following reliefs:- (a) Granting an order of permanent injunction against the first defendant or her agent not to alienate or encumber the schedule mentioned bus and route in any manner. (b) Granting an order of permanent injunction to restrain the first defendant or her men or agent not to interfere with the peaceful possession and enjoyment of the schedule mentioned bus by the plaintiffs. (c) Granting an order of permanent injunction against the defendants 2 to 4 not to transfer the schedule mentioned route permit to the third party without consent of the plaintiffs. 5. By amending the plaint, they have also claimed the following reliefs:- (c) Declaring that the bus route and permit belong to the plaintiffs 6. (c) Granting an order of permanent injunction against the defendants 2 to 4 not to transfer the schedule mentioned route permit to the third party without consent of the plaintiffs. 5. By amending the plaint, they have also claimed the following reliefs:- (c) Declaring that the bus route and permit belong to the plaintiffs 6. The first defendant, by disputing the claim of the plaintiffs, has filed the written statement-cum-counter claim with the following prayers:- (a) For mandatory injunction directing the plaintiffs to handover the R.C. Book of the bus bearing Registration No.TN 65 Y 9516 standing in the name of this defendant within the time granted by this Court and on the failure, order that the same be delivered through process of law (b) For mandatory injunction directing the plaintiffs to handover the route permit issued in the name of this defendant from Paramakudi to Tirupathur by the Regional Transport Authority, Sivagangai to this defendant within the time granted by this Court and on the failure, order that the same be delivered through process of law 7. When the suit was in part heard stage, the above petition came to be filed under Order 7 Rule 11 of Civil Procedure Code for rejection of the plaint on the following two grounds:- “(a) The suit is barred under Section 94 of the Motor Vehicles Act. (b) The suit is also barred under Section 4 of Benami Transactions (Prohibition) Act, 1988.” 8. Let us first consider the alleged bar of the suit under Section 94 of the Motor Vehicles Act. It is necessary to refer to Section 94 of Motor Vehicles Act, which reads as under:- “94. Bar on jurisdiction of Civil Courts.—No Civil Court shall have jurisdiction to entertain any question relating to the grant of a permit under this Act, and no injunction in respect of any action taken or to be taken by the duly constituted authorities under this Act with regard to the grant of a permit, shall be entertained by any Civil Court.” 9. As already pointed out, the plaintiffs have also claimed the relief of permanent injunction restraining the defendants 2 to 4 from transferring the suit schedule route permit to any third party without the consent of the plaintiffs, by impleading the transport authorities as defendants 2 to 4. As already pointed out, the plaintiffs have also claimed the relief of permanent injunction restraining the defendants 2 to 4 from transferring the suit schedule route permit to any third party without the consent of the plaintiffs, by impleading the transport authorities as defendants 2 to 4. During the pendency of the suit, the first defendant has filed a petition in I.A.No.353 of 2018 under Order 23 Rule 1 of Civil Procedure Code for withdrawal of her counter claim and the same was allowed and that thereby, the counter claim was permitted to be withdrawn without liberty and consequently, the counter claim of the first defendant was ordered to be dismissed as withdrawn. The plaintiffs also filed a memo stating that they had impleaded the defendants 2 to 4 as formal parties and as such, the relief claimed against them is given up. It is further evident that since the defendants have not raised any objection, the said memo was ordered to be recorded. As rightly contended by the learned counsel for the plaintiffs and as rightly observed by the learned Trial Judge, since the relief claimed as against the transport authorities were already given up and the reliefs claimed against the first defendant alone are pending, the question of bar under Section 94 of the Motor Vehicles Act does not arise at all. 10. Now coming to the bar of the suit under Section 4 of Benami Transactions (Prohibition) Act, 1988, the plaintiffs after amending the plaint, have claimed the relief of declaration that the suit bus and route permit are belonging to them and for permanent injunction originally claimed against the first defendant restraining her from alienating or encumbering the bus and route permit and also restraining her from interfering with peaceful possession and enjoyment of the bus by the plaintiffs. 11. 11. The plaintiffs' specific case is that they had purchased the stage carriage permit to operate passenger bus from Paramakudi to Tirupathur and the bus bearing Registration No.TN 63 5900 in the name of the first defendant from and out of income of the plaintiffs, that they had purchased the bus and route permit in the name of the first defendant out of love and affection over their mother, that the first defendant is depending on the income of the plaintiffs only and she has no other income from any other source, that she had given a letter admitting the ownership and possession of the bus by the plaintiffs, that subsequently they had purchased another bus bearing Registration No.TN 65 Y 9516 replacing the old one also in the name of the first defendant, that the plaintiffs are absolute owners of the said bus and route permit, that mere mentioning of the first defendant's name in the R.C.Book and route permit will not confer the right or title on her, that the first defendant due to some misunderstanding has been acting malafide to defeat the valuable rights of the plaintiffs and she is attempting to transfer the property to third parties and that therefore, they were constrained to file the above suit. 12. The first defendant had taken a specific stand that the suit bus and the permit are belonging to her, that she had permitted her sons to manage the bus and permit only as permissive occupiers and that the above suit is a blackmailing action and it is an abuse of process of law. 13. The learned counsel for the revision petitioner would submit that the transaction alleged in the plaint would come under benami transaction and in view of the specific bar under Section 4 of the Benami Transactions (Prohibition) Act, the plaintiffs are not entitled to claim title over the suit property and he relied on the decisions of the Hon'ble Supreme Court reported in AIR 1974 SC 171 (Jaydayal Poddar (Deceased) through L.Rs and Another Vs. MST. Bibi Hazra and Others) and AIR 2004 SC 4187 (Valliammal (Deceased by L.Rs Vs. Subramaniam and Others). 14. The above judgments were rendered prior to the enactment of Benami Transactions (Prohibition) Act, 1988. MST. Bibi Hazra and Others) and AIR 2004 SC 4187 (Valliammal (Deceased by L.Rs Vs. Subramaniam and Others). 14. The above judgments were rendered prior to the enactment of Benami Transactions (Prohibition) Act, 1988. The learned counsel has also relied on the decision of this Court reported in 2017 (4) M.L.J. 652 (Lalitha vs. Sundar) and in the said decision, the plaintiff has filed the suit to declare that the sale deed executed by the first defendant in favour of the second defendant is null and void. The second defendant has filed a petition under Order 7 Rule 11 of Civil Procedure Code to reject the plaint alleging that the plaintiff has admitted that he had purchased the property in the name of his wife/first defendant out of love and affection and for the benefit of his wife and children and as such the suit is barred under Section 3(2) of Benami Transactions (Prohibition) Act, 1988. Section 3(2) of the said Act contemplates that Sub Section 1 shall not apply to the purchase of the property in the name of wife or his unmarried daughter and it is presumed, unless the contrary is proved, that the suit property had been purchased for the benefit of wife or unmarried daughter. This Court, by observing that the issue is not a pure question of law but mixed question of fact and law and that same can be decided only after detailed trial by appreciating the oral and documentary evidence let in by the parities, dismissed the revision petition by confirming the order of the Trial Court. 15. At this juncture, it is necessary to refer the judgment of this Court rendered by Hon'ble Mr. Justice R. Subramanian in C.S.No.422 of 2001 and TOS No.33 of 2008, dated 14.10.2009 (Mrs. Charale Sundararaj (Died) and Others Vs. C.M. Dhinkaran @ Suresh and Others) and the relevant passages are extracted hereunder:- “15. Issue No.10:- This issue relates to the prohibition created by the Section 4 of the Prohibition of Benami Property Transactions Act, 1988. Section 4 of the said act, as it stood prior to the amendment of the year 2016, prevented persons from setting up claims relating to Benami after coming into force of the Act. However, the transactions amongst Coparceners and persons standing in a fiduciary capacity were exempted. Section 4 of the said act, as it stood prior to the amendment of the year 2016, prevented persons from setting up claims relating to Benami after coming into force of the Act. However, the transactions amongst Coparceners and persons standing in a fiduciary capacity were exempted. After the amendment of the Act in 2016, the exemptions under Section 4 were done away with by the amendment. Subsection 3 of Section 4, which in effect was the exemption clause was done away with. However, the transactions amongst Coparceners and persons standing in a fiduciary capacity were exempted. After the amendment of the Act in 2016, the exemptions under Section 4 were done away with by the amendment. Subsection 3 of Section 4, which in effect was the exemption clause was done away with. Subsection 3 of Section 4 prior to the amendment 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.” (ii) However, 1988 Act as it stood defined the Benami Transaction Act as follows:- Section 2(a), Benami Transaction means :- “Any transaction in which property is transferred to one person for consideration paid or provided by another person.” The said definition was amended by the 2016 Act and the amended definition as per Section 2(9) of the prohibition of Benami Property Transactions Act, 1988 as amended by the Act 43 of 2016 reads as follows:- “2(9)”benami transaction” means,- (A) a transaction or an arrangement - (a) where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by, another person; 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) a Karta, or a member of a Hindu undivided family, as the case may be, and the property is held for his benefit or benefit of other members in the family and the consideration for such property has been provided or paid out of the known sources of the Hindu Undivided family; (ii) a person standing in a fiduciary capacity for the benefit of another person towards whom he stands in such capacity and includes a trustee, executor, partner, director of a company, a depository or a participant as an agent of a depository under the Depositories Act, 1996 (22 of 1996) and any other person as may be notified by the Central Government for this purpose; (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; (iv) any person in the name of his brother or sister or lineal ascendant or descendant, where the names of brother or sister or lineal ascendant or descendant and the individual appear as joint-owners in any document, and the consideration for such property has been provided or paid out of the known sources of the individual; or (B) a transaction or an arrangement in respect of a property carried out or made in a fictitious name; or (C) a transaction or an arrangement in respect of a property where the owner of the property is not aware of, or, denies knowledge of, such ownership; (D) a transaction or an arrangement in respect of a property where the person providing the consideration is not traceable or is fictitious; Explanation:- For the removal of doubts, it is hereby declared that benami transaction shall not include any transaction involving the allowing of possession of any property to be taken or retained in part performance of a contract referred to in Section 53- A of the Transfer of Property Act, 1882 (4 of 1882), if, under any law for the time being in force,- (i) consideration for such property has been provided by the person to whom possession of property has been allowed but the person who has granted possession thereof continues to hold ownership of such property; (ii) stamp duty on such transaction or arrangement has been paid; and (iii) the contract has been registered.” This amendment, in my considered opinion has the effect of removing a transaction entered into by a person standing in a fiduciary capacity for the benefit of another person towards whom he stands in such capacity and includes a trustee executor, partner and director of the company from being termed as a Benami transaction.” 16. This Court, after considering the evidence therein, has observed that the available evidence clearly indicates that the case of the plaintiff that the property was purchased by her from and out of the income from the 'B' schedule property is more probable and acceptable and the fact that the mother had contributed funds for the purchase of the property in the name of her son having been proved, the claim of the first plaintiff with reference to 'A' property could not be said to be barred by the provision of Benami Transactions (Prohibition) Act, 1988. 17. As already pointed out, in the above mentioned case, the transaction was between the mother and the son and the mother has claimed that she has purchased the property in the name of her son. In the case on hand, the transaction is also between the mother and the sons but here, the sons are claiming that they have purchased the property in the name of their mother. As already pointed out, the plaintiffs had taken a stand that the first defendant/mother is depending on them and she has no other income. More over, as rightly pointed out by the plaintiffs' side, they have been alleging that the transactions were of the year 1997 and 2011 and the suit was laid in the 2013 and as such the Benami Transactions (Prohibition) Act, has no application. As rightly observed by the Trial Court, the issue is not a pure question of law but mixed question of fact and law and the same can be gone into only at the main trail. 18. It is not in dispute that the plaintiffs' side witnesses were already examined and when the first defendant's side evidence was in progress, the first defendant has come forward with the above petition. As already pointed out, the suit was filed in the year 2013 and when the trial was at the fag end, she has filed the above petition in the year 2018 for rejecting the plaint. Considering the facts and circumstances, as already observed by the learned Trial Judge, the above petition came to be filed only to drag on the proceedings. 19. Considering the above, the decision of the Trial Court in dismissing the petition for rejection of the plaint cannot be found fault with and this Court is entirely in agreement with the same. Considering the facts and circumstances, as already observed by the learned Trial Judge, the above petition came to be filed only to drag on the proceedings. 19. Considering the above, the decision of the Trial Court in dismissing the petition for rejection of the plaint cannot be found fault with and this Court is entirely in agreement with the same. Hence, this Court concludes that this Civil Revision Petition is devoid of merits and the same is liable to be dismissed. 20. In the result, this Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.