2012 (5) TMI 830 - HC - Benami Property

Summary

Issues Involved:
1. Whether the plaint discloses any cause of action against defendant No.3.
2. Whether the properties owned by defendant No.3 can be considered HUF properties.
3. Whether the suit is barred by the provisions of the Hindu Succession Act, 1956, Hindu Minority and Guardianship Act, 1956, Guardians and Wards Act, 1890, Specific Relief Act, 1963, and Benami Transactions (Prohibition) Act, 1988.
4. Whether the plaintiff, a minor, has the right to seek partition of HUF properties during her father's lifetime.
5. Whether the mother of the plaintiff can act as the guardian/next friend in the suit.

Summary:

1. Cause of Action Against Defendant No.3:
The defendant No.3 filed an application u/s Order VII Rule 11 CPC, alleging that the plaint does not disclose any cause of action against her and is barred by various provisions of Hindu Law and specific Acts. She contended that as a woman, she cannot be a coparcener in the HUF of her husband/sons, and thus, her properties cannot be termed as HUF properties.

2. Properties Owned by Defendant No.3:
The plaintiff, a minor Hindu female, through her mother, filed a suit for partition and rendition of accounts, claiming a share in the joint family properties. Defendant No.3 argued that the properties listed in the plaint are owned by her and cannot be subject to partition as HUF properties. The court noted that the existence of the HUF was admitted by defendant No.3, and the determination of whether the properties are HUF properties requires evidence.

3. Barred by Provisions of Law:
Defendant No.3 asserted that the suit is barred by the Hindu Succession Act, 1956, and other relevant laws. However, the court emphasized that the scope of Order VII Rule 11 is limited and must be based on the averments in the plaint. The court found that the issues raised require evidence and cannot be decided at this stage.

4. Right to Seek Partition During Father's Lifetime:
The court referred to precedents, including Nanak Chand vs. Chander Kishore, which held that a son or daughter can ask for partition of HUF property during the father's lifetime. The court rejected the contention that the plaintiff, a minor, cannot claim a share in the HUF properties during her father's lifetime.

5. Mother's Role as Guardian/Next Friend:
The court dismissed the contention that the plaintiff's mother cannot act as her guardian/next friend. An application for the mother to sue as a next friend was pending, and the court noted that the interests of the mother and the plaintiff do not clash.

Conclusion:
The court dismissed the application filed by defendant No.3, stating that the plaint cannot be summarily rejected at this stage, and the issues raised require evidence to be determined.