Code of Civil Procedure, 1908 – Ord.VII r.11 – Benami Transaction (Prohibition) Act, 1988 – ss.2(8), 2(9), 4 – Rejection of plaint – Benami property – Suit for partition, possession, declaration, mandatory and permanent injunction and for accounting with regard to the properties alleged to be family properties, by the mother and younger son against the elder son and his family – Some of the properties were sold by the defendant no.2-wife of the elder son in favour of defendant nos.5 and 6-subsequent purchasers and as such the sales were alleged to be void – In the suit, the subsequent purchasers moved an application u/Ord.VII r.11 contending that the suit was not maintainable in view of the provisions of Benami Act – Court of first instance as well as High Court rejected the application – Challenge to, by defendant no.2 and subsequent purchasers:
Held: Defendant no.2 neither moved application u/Ord.VII r.11 nor filed any revision challenging the order of the court of first instance, thus, not a person aggrieved and cannot be permitted to assail the impugned orders – She acquiesced to the jurisdiction of the trial court and by her conduct accepted the order of the court of first instance and chosen to contest the suits on merits – Defendant nos.5 and 6 are only subsequent purchasers of some of the properties and cannot claim any knowledge of the nature of the property in the hands of the original owners – They are not the right person to move application u/Ord.VII r.11 for the rejection of the plaint as allegedly barred by s.4 of the Benami Act – Plaint allegations all through describe the suit properties as the Joint Hindu Family properties and that they have been purchased either from the nucleus of the Joint Hindu Family property or the income derived from the joint family business – Properties are not described as benami in the name of any member of the family – From the plaint reading, the suit properties cannot ex-facie be held to be benami properties in respect whereof the suit may not be maintainable in view of s.4 – It is only where the property is benami and does not fall within the exception that a suit may be said to be barred – Issue whether the property is benami and is not covered by the exception, is to be decided on the basis of evidence and not on mere averments contained in the plaint – Defendants have to adduce evidence to prove the property to be benami – Courts below did not commit any error of law in rejecting the application u/Ord.VII r.11 – Plea that plaint is also hit by s.14 of 1956 Act was never raised and argued before either of the courts below, thus the defendants cannot be permitted to raise such a plea for the first time in the Special Leave Petition – s.14 does not bar or prohibit a suit in respect of such a property, thus, in the absence thereof, the suit plaint is not liable to be rejected as barred by law – Courts below rejected the application filed by the subsequent purchasers u/Ord. VII r.11 and have refused to reject the plaint as barred by any statute, meaning thereby the parties at liberty to contest the suit on merits – In view thereof, the defendants have not suffered any prejudice and no miscarriage of justice so as to permit them to avail the discretionary jurisdiction u/Art.136 – Constitution of India – Art.136 – Hindu Succession Act, 1956 – s.14. [Paras 17, 18, 25-32]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Nidhi Jain. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.