2008 (8) TMI 976 - HC - Benami Property

Summary

Issues Involved:
1. Prematurity and Cause of Action
2. Territorial Jurisdiction
3. Benami Transactions Prohibition Act
4. Permanent Injunction

Summary:

1. Prematurity and Cause of Action:
The defendants filed an application u/s Order 7 Rule 11 CPC for rejection of the plaint on grounds of prematurity and lack of cause of action. The plaintiff sought declarations regarding properties based on a Will dated 29th October 2002, which was pending probate. The court noted that the plaintiff's right to property was contingent upon the probate outcome, making the suit premature. The court referenced several cases, including *Ram Shankar v. Balakdas* and *Manmohan Singh v. Joginder Kaur*, to support the position that a suit based on an unprobated Will is not maintainable. The court concluded that the plaint did not disclose any cause of action for the reliefs of declaration claimed, as the plaintiff's title to the properties depended on the pending probate proceedings.

2. Territorial Jurisdiction:
The defendants argued that the court lacked territorial jurisdiction as the properties in question were outside Delhi. The court referred to Section 16(d) CPC, which mandates that suits concerning immovable property be filed in the court within whose jurisdiction the property is situated. The court cited *Harshad Chiman Lal Modi v. DLF Universal Ltd.* and other cases to affirm that the relief of declaration would entail determining rights to immovable property, which falls under the jurisdiction of the local court where the property is located. Consequently, the court held that it lacked territorial jurisdiction to entertain the suit.

3. Benami Transactions Prohibition Act:
The defendants contended that the plaintiff's claim was barred by the Benami Transactions Prohibition Act, 1988. However, the court found this argument untenable, referencing *Nand Kishore v. Sushil Mehra*, which held that neither filing a suit nor taking a defense in respect of benami transactions involving property purchased in the name of one's wife is prohibited under Section 4 of the Benami Act. Thus, the plaint was not rejected on this ground.

4. Permanent Injunction:
The plaintiff also sought a permanent injunction to restrain the defendants from dealing with the properties. The court noted that this relief was consequential to the relief of declaration. Since the plaint for declaration was rejected, the relief of permanent injunction did not survive. Additionally, the court cited Section 41(h) of the Specific Relief Act, which bars the relief of permanent injunction when an equally efficacious remedy is available, such as applying to the probate court under the Indian Succession Act, 1925.

Conclusion:
The court rejected/dismissed the plaint for not disclosing any cause of action, being premature, and lacking territorial jurisdiction. The relief of permanent injunction was also barred by Section 41 of the Specific Relief Act. Each party was directed to bear their own costs.