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2024 DIGILAW 1581 (MAD)

Kumaresan v. K. Valarmathi

2024-07-11

R.VIJAYAKUMAR

body2024
ORDER : R. VIJAYAKUMAR, J. 1. C.R.P(MD).No.125 of 2019 has been filed by the defendants 1 , 3 and 4 in O.S.No.201 of 2018 on the file of the II Additional District Judge, Tiruchirappalli to strike off the plaint. 2. C.R.P(MD).No.210 of 2019 has been filed by the sole defendant in O.S.No.1087 of 2018 on the file of the II Additional Subordinate Court, Trichy to strike off the plaint. 3. Both the revisions have been filed seeking to strike off these two suits on the ground that they are barred under Prohibition of Benami Property Transactions Act, 1988. (A) Facts leading to the filing of these revisions are as follows: 4. One Chellappa Gounder had passed away on 06.11.1997 leaving behind him his wife Thirumayi Ammal, his daughters Yogambal and Amudha and his son Kathiresan as his legal heirs. Daughter Yogambal's son is Kumaresan. Thirumayi Ammal had passed away on 22.09.2012 and her son Karthiresan had passed away on 24.06.2009. The legal heirs of the deceased son Karthiresan are his wife Valarmathi and his daughters Jothipriya and Anu Priyanka. These facts are not in dispute. 5. O.S.No.201 of 2018 has been filed by the legal heirs of Kathiresan for the relief of declaration that they are the absolute owners and for consequential permanent injunction. There are three items of properties are shown in the suit schedule. As per the plaint averments, the first item of the suit schedule property was purchased by Kathiresan from and out of his own fund, but he had included his father Sellappan and sister Yogambal as co-purchasers along with him. Therefore, the suit first item is the exclusive property of Kathiresan. 6. The plaintiffs had further contended that Kathiresan had purchased the suit second item of property in the name of his sister Amudha by way of a sale deed dated 06.06.1983 and therefore, the said Kathiresan is the exclusive owner. The plaintiffs had further averred that the third item of the property though it is purchased in the name of mother of Kathiresan namely Thirumayi Ammal, it was only purchased out of the funds of Kathiresan and therefore, he alone is the exclusive owner. Therefore, according to the plaintiffs, all the three properties are the exclusive properties of Kathiresan and after his death, it has devolved upon them and therefore, they have prayed for declaration of title and permanent injunction. 7. Therefore, according to the plaintiffs, all the three properties are the exclusive properties of Kathiresan and after his death, it has devolved upon them and therefore, they have prayed for declaration of title and permanent injunction. 7. O.S.No.1087 of 2018 has been filed by the legal heirs of Kathiresan for the relief of declaration that they are absolute owners and for permanent injunction with regard to two items of properties. These two items are not part of the schedule in O.S.No.201 of 2018. 8. According to the plaintiffs, Kathiresan had entered into an agreement of sale for purchasing the suit schedule properties in his name on 13.06.2008. However, due to advise of his astrologers, a sale deed was registered in the name of the defendant Kumaresan who is the son of Yogambal. Therefore, according to the plaintiffs, Kathiresan is the exclusive owner of the property though the title deeds stands in the name of Kumaresan. Hence, they have prayed for declaration of title and permanent injunction. 9. The present revision petitions have been filed by the respective defendants in both the suits to strike off the plaint on the ground that the suit is barred under the provisions of Prohibition of Benami Property Transactions Act, 1988. (B) Contentions of the counsels appearing on either side. 10. The learned Senior Counsel appearing for the revision petitioner in both revisions had contended that both the suits have been filed in the year 2018 and therefore, they are governed by the Act amended by Act 43 of 2016 with effect from 01.11.2016. He relied upon Sections 3 and 4 of the Act 45 of 1988 and contended that when the plaintiffs admit that the registered sale deed stands in the name of Thirumayi Ammal and Kumaresan, they cannot contend that the properties are exclusive properties of Kathiresan. Such a plea is prohibited under the Act. When not only the plea is prohibited but a right to recover the property held as Benami is also prohibited under Act 45 of 1988, the plaint in both the suits have to be strike off as bar under Order 7 Rule 11 of C.P.C. 11. The learned Senior Counsel had relied upon a decision of the High Court of Punjab and Haryana reported in Prem Vati Bhandari Vs. The learned Senior Counsel had relied upon a decision of the High Court of Punjab and Haryana reported in Prem Vati Bhandari Vs. Maya Wati and others, 1992 (1) ILR 409 and contended that the Section 4 of Benami Transactions (Prohibition) Act being a disqualifying Section which prohibits the right to recover the property held benami and therefore, the suit itself is not maintainable. 12. Per contra, the learned counsel appearing for the respondents/plaintiffs in suit had contended that pending revision petition, the 4 th defendant in O.S.No.201 of 2018 had filed I.A.No.1 of 2022 under Order 7 Rule 11 of C.P.C to reject the plaint before the trial Court.However, such an application was dismissed as not pressed on 18.07.2022. Therefore, the same defendant cannot prosecute this revision petition under the same provisions of law for rejection of plaint. She relied upon various averments in the plaint to contend that before a sale deed was executed in favour of Kumaresan (who is the defendant in O.S.Nno.1087 of 2018), a sale agreement was entered into between the original owner and the said Kathiresan alone. Only due to astrologers advise, a sale deed was taken in the name of Kumaresan and she relied upon Section 2(9)(A) (b)(ii) and (iv) of Prohibition of Benami Property Transactions Act, 1988 to contend that the properties were held by the said Kumaresan only as a trustee and therefore, the suit is not barred under the provisions of Act 45 of 1988. 13. The learned counsel had further contended that as far as the first item in O.S.No.201 of 2018 is concerned, it stands jointly in the name of Chellappan, Kathiresan and Yogambal. Therefore, exception under Section 2(9)(b)(iv) of the Act is squarely applicable and hence, the said suit cannot be contended to be barred under Act 45 of 1988. She had further contended that none of the ingredients as contemplated under Order 7 Rule 11 C.P.C have been made out for seeking rejection of plaint. Hence, she prayed for dismissal of the revision petitions. 14. I have considered the submissions made on either side and perused the material records. (C) Discussion: (i) O.S.No.201 of 2018: 15. The suit has been filed for declaration of title and permanent injunction by the legal heirs of one Kathiresan with regard to three items of the properties. Hence, she prayed for dismissal of the revision petitions. 14. I have considered the submissions made on either side and perused the material records. (C) Discussion: (i) O.S.No.201 of 2018: 15. The suit has been filed for declaration of title and permanent injunction by the legal heirs of one Kathiresan with regard to three items of the properties. The plaint in the said suit is sought to be struck off by Yogambal, his son Kumaresan and one Nachimuthu. It is an admitted fact that the first item of the property in the said suit has been purchased jointly in the name of Chellappan, Kathiresan and Yogambal under a registered sale deed dated 09.09.1979. 16. Section 2(9)(A)(b)(iv) of Prohibition of Benami Property Transactions Act, 1988 is extracted as follows: “2.. (9)... (A)... (b)... (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.” 17. If a property has been jointly purchased by any person in the name of his brother or sister and lineal descendant or ascendant along with him as a joint owner in any document and the consideration for such property has been provided or paid out of the known sources of the individual, then such a transaction cannot be treated to be a benami transaction. In such circumstances, the plaintiffs in O.S.No.201 of 2018 have made out a prima facie case to the effect that at least item No.1 of the suit schedule property would not fall within the definition of benami transaction. The other two items in the suit schedule properties stand in the name of mother of Kathiresan and another sister of Kathiresan. Therefore, it is clear that the rights of the parties relating to the first item of the property have to be adjudicated by the trial Court on merits and in accordance and it cannot be said to be barred by Act 45 of 1988. However, this is only a prima facie opinion of the Court for the purpose of considering the rejection of plaint application. It is for the defendant to establish before the trial Court that the first item also would fall within the benami transaction. However, this is only a prima facie opinion of the Court for the purpose of considering the rejection of plaint application. It is for the defendant to establish before the trial Court that the first item also would fall within the benami transaction. Such a liberty is open to the defendant. 18. The Hon'ble Supreme Court in a judgment reported in Madhav Prasad Aggarwal and another Vs. Axis Bank Limited and another, (2019) 7 SCC 158 in paragraph No.10 has held as follows: “10. We do not deem it necessary to elaborate on all other arguments as we are inclined to accept the objection of the appellant(s) that the relief of rejection of plaint in exercise of powers under Order 7 Rule 11(d) CPC cannot be pursued only in respect of one of the defendant(s). In other words, the plaint has to be rejected as a whole or not at all, in exercise of power under Order 7 Rule 11(d) C.P.C. Indeed, the learned Single Judge rejected this objection raised by the appellant(s) by relying on the decision of the Division Bench of the same High Court. However, we find that the decision of this Court in Sejal Glass Ltd. is directly on the point. In that case, an application was filed by the defendant(s) under Order 7 Rule 11(d) CPC stating that the plaint disclosed no cause of action. The civil Court held that the plaint is to be bifurcated as it did not disclose any cause of action against the Director's Defendant(s) 2 to 4 therein. On that basis, the High Court had opined that the suit can continue against defendant 1 company alone. The question considered by this Court was whether such a course is open to the civil Court in exercise of powers under Order 7 Rule 11(d) CPC. The Court answered the said question in the negative by adverting to several decisions on the point which had consistently held that the plaint can either be rejected as a whole or not at all. The Court held that it is not permissible to reject plaint qua any particular portion of a plaint including against some of the defendant(s) and continue the same against the others. The Court held that it is not permissible to reject plaint qua any particular portion of a plaint including against some of the defendant(s) and continue the same against the others. In no uncertain terms the Court has held that if the plaint survives against certain defendant(s) and / or properties, Order 7 Rule 11(d) CPC will have no application at all, and the suit as a whole must then proceed to trial” 19. In view of the authoritative pronouncement of the Hon'ble Supreme Court in the judgment cited supra, it is clear that a plaint can be rejected as a whole or not at all and it cannot be rejected against any particular portion of a plaint including against some of the defendants and continue the same as against others. This judgment has been followed by the Hon'ble Supreme Court in another judgment reported in Geetha and others Vs. Nanjudaswamy and others, 2023 SCC Online SC 1407 . This judgment is squarely applicable to the facts in O.S.No.201 of 2018 (CRP(MD).No.125 of 2019). In such circumstances, there are no merits in the revision and the revision petition stands dismissed. (ii) O.S.No.1087 of 2018: 20. A perusal of the plaint indicate that the suit has been filed by the legal heirs of the Kathiresan for declaration of title and permanent injunction over two items of properties. As per averments, Kathiresan had entered into a sale agreement with original owner on 13.06.2008, but later a sale deed got executed on 09.07.2008 in the name of the defendant namely Kumaresan. The legal heirs of Kathiresan have contended that the parent document relating to the properties are in their custody and only the sale deed dated 09.07.2008 seems to be in the custody of the defendant. 21. From the averments in the plaint, it is clear that the defendant in the suit namely Kumaresan is the sister's son of Kathiresan. As admitted by the parties, the sister of Kathiresan namely Yogambal got married on 07.09.1975 and had left the family. The property has been purchased in the name of her son Kumaresan on 09.07.2008. By no stretch of imagination, the said Kumaresan can be considered to be member of Hindu undivided family. As admitted by the parties, the sister of Kathiresan namely Yogambal got married on 07.09.1975 and had left the family. The property has been purchased in the name of her son Kumaresan on 09.07.2008. By no stretch of imagination, the said Kumaresan can be considered to be member of Hindu undivided family. Therefore, the contention of the legal heirs of Kathiresan that due to advise of astrologers, the property was purchased in the name of his sister's son cannot in any way be helpful to them to wriggle out of the prohibition of benami transaction as contemplated under Act 45 of 1988. 22. The learned counsel for the respondents/plaintiffs had further contended that the defendant/Kumaresan could only be considered to be a person standing in the fiduciary capacity. When Kathiresan could neither be a member of Hindu undivided property nor a trustee, the sale deed dated 09.07.2008 could only be considered to be a benami transaction and consequently, fall within the prohibition under Section 2(9)(A)(a) of the Act and in turn attracting Section 4 of Act 45 of 1988. 23. In view of the above said deliberations, this Court find that the present suit is barred under Order 7 Rule 11(d) C.P.C. These findings have been arrived at by the Court only based upon the plaint averments and the documents annexed to the plaint in O.S.No.1087 of 2018. Accordingly, the plaint in O.S.No.1087 of 2018 on the file of the II Additional Subordinate Court, Tiruchirappalli stands rejected. (D) Conclusion: 24. In the result, CRP(MD). No.125 of 2019 stands dismissed. 25. CRP(MD).No.210 of 2019 stands allowed. No costs. Consequently, connected miscellaneous petitions are closed.