2023 (5) TMI 267 - HC - Benami Property

Hindu Undivided Family - Rejection of plaint under Order VII Rule 11 D of the Code of Civil Procedure - rejection of plaint sought on the ground that from plain reading of the plaint, it will appear that the suit property is purchased in the name of defendant, namely, Anpurna Devi (original petitioner), the suit is barred by the provision of Benami Transactions (Prohibition) Act, 1988 as well as barred under Hindu Law and the plaintiffs have got no cause of action. HELD THAT - Sub-section 3 of Section 4 will not be applicable where the person in whose name the property is held is co-parcener in any Hindu Undivided Family and property is held for the bona fide of the co-parceners in the family. It is the case of the defendant that she was also a co-parcener. It is settled principle of law that a female member is never considered as co-parcener in a Hindu Undivided Family. In the case of NAND KISHORE MEHRA VERSUS SUSHILA MEHRA 1995 (7) TMI 64 - SUPREME COURT , the Hon ble Supreme Court has held that if the property is standing in the name of wife, the provision under Section 4 will not be applicable because it is saved under Section 3 of the said Act. However, it may be mentioned that the claim of the plaintiffs is that the property is the joint family acquisition. In view of the aforesaid settled principle of law, even after the property is purchased by the husband in the name of the wife the onus/burden is on the husband to draw that the property was purchased not for the benefit of the wife. Further, the question whether the property is self-acquired property or joint family property is purely a question of fact and that cannot be agitated in Order VII Rule 11 of the Code of Civil Procedure. The plaintiffs have asserted for permanent injunction for restraining the defendant from alienating the suit property especially by defendant, namely, Anpurna Devi (original petitioner). It is, therefore, obvious that the plaint could not have been rejected as prayed by the defendant under the provision of Order VII Rule 11 of the Code of Civil Procedure especially with regard to first relief regarding the declaration of joint family property. This Court, therefore, does not find that the lower Court below has committed error of jurisdiction and illegality in passing the impugned order - this Civil Revision application is dismissed.

Summary

Issues involved:
The judgment involves issues related to rejection of plaint under Order VII Rule 11 D of the Code of Civil Procedure, declaration of joint family property, application of Benami Transactions (Prohibition) Act, 1988, and the grant of permanent injunction.

Rejection of plaint under Order VII Rule 11 D:
The petition was filed by the defendant-petitioner seeking rejection of the plaint in Title Suit No. 404 of 2016. The plaintiffs had filed the suit to declare the Schedule 1 land as joint family property and to restrain the defendant from transferring the property. The defendant argued that the suit was barred by the Benami Transactions (Prohibition) Act, 1988 and Hindu Law, and that the plaintiffs had no cause of action. The Trial Court rejected the petition, leading to the current dispute.

Application of Benami Transactions (Prohibition) Act, 1988:
The defendant contended that the property standing in her name was not joint family property as she was not a co-parcener, and thus, the suit property could not be considered joint family property. The Trial Court considered the provisions of the Benami Transactions (Prohibition) Act, 1988, and found that the defendant's claim was barred by the Act. Section 4 of the Act prohibits the right to recover property held benami against the person in whose name the property is held, unless certain exceptions apply.

Declaration of joint family property:
The plaintiffs claimed that the properties were purchased using income from the joint family business and were in the name of the defendant, who was related to them. They argued that the defendant's status as a co-parcener entitled her to hold the property for the benefit of the co-parceners. The Court referred to legal precedents to determine the application of the Benami Transactions Act in cases where property is held in the name of a family member.

Grant of permanent injunction:
The plaintiffs sought a permanent injunction to prevent the defendant from transferring the property during her lifetime. The Court emphasized that the rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure is a stringent power and can only be exercised if the plaint does not disclose a cause of action or is barred by law. In this case, the Court found that the rejection of the plaint was not warranted, especially concerning the relief sought for the declaration of joint family property and the injunction against property transfer.

In conclusion, the Court dismissed the Civil Revision application and directed the Trial Court to consider the issue of Benami after the parties present their evidence. The judgment highlighted the importance of examining the plaint's averments to determine the presence of a cause of action and the applicability of relevant laws before rejecting a plaint.