2009 (9) TMI 1044 - HC - Benami Property

Issues Involved
1. Whether the suit pertaining to prayers 1 and 2 is barred under the Benami Transactions (Prohibition) Act, 1988.
2. Whether the suit is barred under Order II Rule 2 in view of the Plaintiff having filed Suit No. 204/2000.
3. Whether the plaint has been affixed with deficient court fee and whether the plaintiff is obliged to pay ad valorem court fee.
4. Whether the suit pertaining to prayer 3 is barred by limitation.
5. To what relief is the Plaintiff entitled.
6. If Plaintiff is entitled to the reliefs prayed for what consequential directions would be required to be issued.
7. Relief.

Detailed Analysis

Issue 1: Bar under the Benami Transactions (Prohibition) Act, 1988
The court noted that Section 4(3) of the Benami Act provides exceptions to Section 4(1), which prohibits a suit, claim, or action to enforce any right in respect of any property held benami. The exceptions include properties held by a coparcener in a Hindu undivided family for the benefit of the coparceners or properties held by a person in a fiduciary capacity. The Plaintiff has pleaded that the payments for the suit property were made from joint family funds and that the property was held by the Defendant for his benefit. To prove these claims, evidence would need to be led at trial. Therefore, Issue No.1 cannot be decided without evidence being led.

Issue 2: Bar under Order II Rule 2 CPC
The court concluded that the earlier Suit No. 204 of 2000, which was a suit for partition, did not run its full course and was withdrawn with permission to file a fresh suit on the same cause of action. The court held that Order II Rule 2 CPC requires the earlier suit to include the whole of the claim which the Plaintiff is entitled to make in respect of the cause of action. Since the earlier suit was withdrawn without running its full course, the Plaintiff is not precluded from seeking further relief in the present suit. Therefore, the suit is not barred under Order II Rule 2 CPC.

Issue 3: Deficient Court Fee
The court observed that the valuation of the suit for the purposes of court fees would depend on the evidence led. If the Plaintiff can show that he is in possession of a portion of the suit property, then the court fee would have to be calculated accordingly. Therefore, Issue No.3 cannot be decided without evidence being led.

Issue 4: Bar by Limitation
The court found that the claim for recovery of money in the sum of Rs. 1,20,000 was barred by limitation. The last payment was made in 1995, and the suit was filed in 2001, which is beyond the limitation period. The court rejected the Plaintiff's submission that the prayer for recovery of money should be construed as a prayer for rendition of accounts. Accordingly, this issue was decided in favor of the Defendant.

Relief and Consequential Directions
The court held that the prayer for recovery of money against the Defendant is barred by limitation and is therefore rejected. Issues No.1 and 3, although preliminary issues, cannot be decided at this stage without evidence being led. These issues will be decided along with other issues at the final stage.

Conclusion
1. Issue No.2 is decided against the Defendant and in favor of the Plaintiff, holding that the suit is not barred under Order II Rule 2 CPC.
2. The prayer for recovery of money against the Defendant is barred by limitation and is therefore rejected.
3. Issues No.1 and 3 cannot be decided at this stage without evidence being led and will be decided at the final stage.

The case is listed before the learned Joint Registrar for the Plaintiff to file the affidavit by way of examination of chief of its witnesses, and a schedule for the completion of the recording of the evidence will be fixed.

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