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Madhya Pradesh High Court · body

2023 DIGILAW 682 (MP)

Reena Jain v. Ashok Kumar Jain

2023-08-03

SUNITA YADAV

body2023
ORDER 1. Present Civil Revision under section 115 of CPC arising out of the order dated 26.2.2019 passed by 4th Civil Judge, Class-I, Gwalior in Civil Suit No. 840-A/2017 whereby, application under Order 7 rule 11 r/w 151 of CPC has been rejected. 2. The facts in short giving rise to the present revision are that the respondents No. 1 to 5/plaintiffs have instituted a suit for declaration of title and permanent injunction against the petitioner/defendant No.1 and respondent No. 6/defendant No.2. 3. As per plaint pleadings the property was purchased benami vide registered sale deed by Shri Basant Lal Jain as karta of the joint Hindu Family in the name of Suresh Chand Jain on 18.9.1980. The plot was purchased and got constructed by Shri Basant Lal Jain from the joint income of the family and since then, the plaintiffs and the defendants are residing in the property together. Basant Lal Jain executed a Will on 10.12.1983, wherein the property is shown as joint family property. After death of Basant Lal, Suresh Kumar became karta of joint family and continued the business of ''Bajrang Trading Company''. Thereafter Suresh Kumar died On 30.10.2017 and after his death, Vinod kumar looked after the business. It was further pleaded that without partition, the defendants No. 1 and 2 are trying to sell the disputed property. Thus the present suit is filed for declaration of title and permanent injunction. 4. During the pendency of suit petitioner-defendant filed an application under Order 7 rule 11 r/w section 151 CPC before learned trial Court and prayed for dismissal of suit on the ground that the suit is incompletely filed and is barred by Law in view of section 4(1) of the Benami Transactions (Prohibition) Act, 1988 and further in view of section 54 of the Transfer of Property Act, 1908 and section 3(b), 9, 10 and 16 of the Madhya Pradesh Society Registration Act, 1973 and Limitation Act. 5. Reply to the application was filed by the respondents/plaintiffs denying contentions made in the application and prayed for dismissal of the same on the ground that it is the matter of evidence and it can be decided on the basis of evidence. The question whether the property is of Hindu Undivided Family or not, can only be decided after the evidence. 6. The question whether the property is of Hindu Undivided Family or not, can only be decided after the evidence. 6. After hearing both the parties, the learned trial Court considering the submissions of the rival parties, dismissed the application filed by the defendant No. 1/petitioner by the impugned order. 7. Counsel for the petitioner submitted that the learned trial Court has gravely erred in dismissing the application filed under Order 7 rule 11 of CPC without considering the mandatory provisions and legal position settled by apex Court. It is further argued that the suit filed by the plaintiffs/respondents is incomplete and is without map. In the plaint the respondents/plaintiffs have admitted that the property in question has been purchased benami vide registered sale deed in the name of Suresh Chand Jain on 18.9.1980 from Chetak Grah Nirman Samiti. The sale deed filed by the respondents/ plaintiffs along with the plaint is in the name of Suresh Chand Jain, the husband of the petitioner/defendant No. 1. Hence the plaintiffs/respondents are claiming title over the property taking the plea of benami on the basis of Will, which is barred by provision contained in section 4(1) of the Benami Transactions (Prohibition) Act, 1988. Learned counsel for the petitioner cited the judgments, in the cases of Mohd. Shakeel v. Smt. Husna Bano and Others, 2017(1) M.P.L.C. 63 (M.P), Jagdish Prasad Agrawal and another v. Rajkumar and another, 2006(5) M.P.H.T. 379 , Mukesh and Anr. v. Shantilal & Ors., ILR.[2011] M.P. 2893 and Anand Kumar v. Vijay Kumar and Ors., I.L.R. [2012] M.P. 2554 to buttress his arguments and prays to dismiss the suit in the light of section 4(2)(a) of the Act, as barred by law. 8. Heard and perused the record. 9. For deciding this petition, the provisions of Order VII rule 11 of C.P.C. are relevant which reads as below:- 11. Rejection of plaint. 8. Heard and perused the record. 9. For deciding this petition, the provisions of Order VII rule 11 of C.P.C. are relevant which reads as below:- 11. Rejection of plaint. The plaint shall be rejected in the following cases- (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature form correcting the valuation or supplying the requisite stamppaper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff. 10. In this case the application under Order VII rule 11 of C.P.C. is filed mainly on the ground that plaint is liable to be rejected as it is barred by law in the light of provisions of sections 4(1) of the Benami Transactions (Prohibition) Act, 1988. Section 3 and 4 of the Act relate to the prohibition of Benami transactions and the prohibition of the right to recover property held Benami. For the sake of facility, the said Sections are reproduced hereunder:- "3. Prohibition of benami transactions.- (1) No person shall enter into any benami transaction. Section 3 and 4 of the Act relate to the prohibition of Benami transactions and the prohibition of the right to recover property held Benami. For the sake of facility, the said Sections are reproduced hereunder:- "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 a registered owner under sub-section (1) of section 10 of the Depositories Act, 1996; (ii) participant as an agent of a depository." "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.the Act was enacted in the year 1988 but the bar was created under subsection (1) of section 4 of the Act that no claim would be made on the basis of any benami transaction. 11. It is well settled principle of law that while deciding the application under Order 7 rule 11 CPC only plaint allegations are required to be considered and no other evidence or pleadings made in the written statement can be considered. In view of the above settled principle of law it has to be seen whether on the basis the plaint pleadings this suit is barred by the provisions of the Benami Transactions (Prohibition) Act, 1988. 13. In view of the above settled principle of law it has to be seen whether on the basis the plaint pleadings this suit is barred by the provisions of the Benami Transactions (Prohibition) Act, 1988. 13. After examining the facts of this case in view of the above principles of law, it is apparent that as per the plaint pleadings itself the disputed property was purchased benami vide registered sale deed by Shri Basant Lal Jain in the name of Suresh Chand Jain on 18.9.1980. The pleadings of plaint further reveal that Basant Lal Jain allegedly executed a Will on 10.12.1983, and in that will also the disputed property is shown as Benami property. Therefore, on the basis of averments on the plaint and document filed by the plaintiff/respondent, there is no doubt that the disputed property is benami property. 14. In the case of Anand Kumar v. Vijay Kumar and Others, reported in (2012) 3 M.P.L.J. 129 . it is held that : “The bar is to file a suit or to make a claim and not that a particular transaction is benami or not. If a suit is filed after coming into force of the Act, claiming any right, title or interest on the basis of any benami transaction, whether it was done prior to coming into force of the Act or after coming into force of the Act, would be barred under sub-section (1) of section 4 of the Act.” 15. The learned counsel for the respondent argued, since the property was purchased by the Karta of family, Basanti Lal and property was held by co-parcener, therefore, the suit is maintainable. However, the above argument is not acceptable because the present suit is filed in the year 2017 after the amendment in the Act deleting the Sub-section 3 of section 4 of the Act, which had provided that:- “(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) ***************" 16. Since the above provision had been deleted before filing of this suit, therefore, in view of the provision of section 4 (1) of the the Benami Transactions (Prohibition) Act, 1988 the present civil suit is found to be barred by law. 17. Since the above provision had been deleted before filing of this suit, therefore, in view of the provision of section 4 (1) of the the Benami Transactions (Prohibition) Act, 1988 the present civil suit is found to be barred by law. 17. Consequently, the present petition as well as the application filed by petitioner under Order VII rule 11 C.P.C. are allowed and the present civil suit is hereby dismissed.