2022 (3) TMI 1006 - HC - Benami Property

Benami Transaction - suit filed claiming the suit property as Joint Hindu Family Property - whether under Order 7 Rule 11 or under Order 14 Rule 2 of Code of Civil Procedure if the same can be decided without taking evidence of the parties? - HELD THAT - This is a well settled legal position as expounded by Hon'ble Supreme Court in the case of Nusli Neville Wadia Vs. Ivory Properties and Others 2019 (10) TMI 1314 - SUPREME COURT that, for disposal of an application filed under Order 7 Rule 11 of CPC, the averment of plaint can only be taken into consideration. The version of defendant (s), either in their application or written statement, cannot be looked into for the purpose. Further, the suit or the part thereof, can be disposed of on the basis of pure legal issue whether under Order 7 Rule 11 or under Order 14 Rule 2 of Code of Civil Procedure if the same can be decided without taking evidence of the parties. However, the mixed issues of law and facts cannot be decided preliminarily and in that situation, the court has to decide all the issues after the evidence is adduced by the parties. Indisputedly, present suit has been filed claiming the suit property as Joint Hindu Family Property and as per the legal position expounded in the judgment cited on behalf of the respondent/plaintiff, the bar of Section 4 of Benami Transaction Act 1988 is not attracted in case of joint family property. The judgments cited on behalf of the petitioners are not related to the joint family property, therefore, the same are not applicable to this case. Thus, the objection in this regard is not tenable. Trial court after taking into consideration the averments of plaint has rightly concluded that the issue of limitation is a mixed question of law and fact which can be decided only after evidence of the parties. The supportive facts raised with regard to limitation by the petitioners cannot be taken into consideration at this initial stage. Therefore, the trial court has not committed any illegality on this count also. Trial court has primarily concluded that the valuation of the suit has been made properly and adequate court fee has been paid accordingly. The issue of court fee has also been kept open for the later stage, therefore, looking to the frame of plaint, the finding with regard to court fee cannot be faulted with at this stage. Though maintainability of the present suit has been questioned but such objection as to maintainability of the suit has not been taken before the trial court and no written statement has been filed as yet, therefore, this court refrains to consider the same straight way in this petition. While maintaining the impugned order, the petition is disposed of with a direction that the defendants/petitioners shall file written statement by the next date fixed by the trial court in the matter. They may take all the grounds as to maintainability of the present suit. The trial court shall not grant any further adjournment for the purpose. After filing of written statement, the trial Court, without further loss of time, shall frame the issues

Summary

Issues involved:
1. Dismissal of application under Order 7 Rule 11 of CPC.
2. Validity of suit property acquisition and challenge.
3. Allegation of Benami Transaction and applicability of Benami Transaction Prohibition Act, 1988.
4. Relief sought in the suit and its maintainability under Specific Relief Act.
5. Valuation of the suit and payment of adequate court fee.

Analysis:

1. The Civil Revision was filed against the dismissal of an application under Order 7 Rule 11 of CPC by the XIV Civil Judge Class I, Gwalior. The petitioners argued that the suit property was self-acquired by the mother of the plaintiff and the alienation cannot be challenged without legitimate grounds, emphasizing that the suit was an abuse of process. The petitioners also contended that the suit was time-barred, being filed fourteen years after the sale deed, and raised objections under the Benami Transaction Prohibition Act, 1988.

2. The respondent, on the other hand, argued that the objections to the suit's maintainability were not raised before the trial court and that the Benami Transaction Prohibition Act, 1988, does not apply to joint family property. They also highlighted that issues of limitation and court fee are mixed questions of law and fact, requiring evidence from both parties for a decision. The respondent cited relevant judgments to support their arguments.

3. The High Court considered the legal position established by the Supreme Court regarding the disposal of applications under Order 7 Rule 11 of CPC. It was emphasized that the averments of the plaint are crucial, and the court can only consider the defendant's version after evidence is adduced. The court clarified that mixed issues of law and facts must be decided after evidence is presented by both parties.

4. The court analyzed the claim of the suit property being Joint Hindu Family Property and the applicability of the Benami Transaction Act, 1988, to joint family property. It was concluded that the objections raised by the petitioners were not tenable in this case. The court also upheld the trial court's decision on the issue of limitation, stating it as a mixed question of law and fact requiring evidence.

5. Regarding the relief sought in the suit and the valuation of the property, the court noted that the trial court had appropriately assessed the valuation and court fee. The issue of court fee was left open for later consideration. The court refrained from considering objections to the suit's maintainability, as they were not raised before the trial court, directing the defendants to file a written statement and raising all grounds of maintainability.

In conclusion, the High Court disposed of the petition while maintaining the impugned order, directing the defendants to file a written statement with all grounds of maintainability. The trial court was instructed to frame issues promptly and decide legal issues preliminarily if possible without taking evidence.