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TMI Blog2005 (9) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 15.9.1956 and 22.7.1965 by Mostt. Manorama, who was not a member of the coparcenery of Ganouri Mahto, Basudeo Prasad and Brahamdeo Pd. Singh and the said property having been purchased from her Stridhan was never a joint property, although, she was the wife of Basudeo Prasad. He further stated that in fact suit for declaration of title over the property of Mostt. Manorama had been filed in the garb of a Partition suit for grabbing the same. He also averred that if the suit property is held to be a joint family property then it has to be held that the sale was a Benami transaction which the Court can not do in view of the provision of Benami Transaction (Prohibition) Act, 1988 (hereinafter referred to as the Act for the sake of brevity). He further claimed that the only other option in case the property of a stranger to co-parcenery was claimed to be joint family property, was to challenge the title of the stranger and claim recovery of possession in a Title Suit on payment of ad-valorem Court fee, but in this case neither any relief has been claimed nor any ad-valorem Court fee has been paid in the suit. 5. Learned counsel for the petitioners also submitted that it is the dex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough out been mutated in the name of joint family and they regularly paid rent and obtained rent receipts. Learned counsel for the opposite parties also averred that there was no dispute during the life time of Basudeo Prasad in the joint management and enjoyment of the said properties by the family but after his death the problems arose and hence there was necessity of filing a Partition Suit. 8. Learned counsel for the opposite parties further stated that since the deed in question was of a date much prior to the coming into force of the Act in 1988 and no claim for getting it declared as a benami transaction having been raised in the plaint, there was neither any occasion for payment of ad-valcrem Court fee nor there was any question of bar of the Act. He also averred that Court fee matter was not raised by the defendants in their objection, hence neither there was any occasion for the learned Court below to give any finding in that regard nor even the requirements of the provision of Order VII, Rule 11 of the Code, under which the defendants raised their objection, was fulfilled. It was also submitted by him that the learned Lower Court considered the entire matters in issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty is held for the benefit of another person for whom he is a trustee or towards whom, he stands in such a capacity. 10. There had been various views with respect to the nature, effect and implication of said two provisions of the Act. The Hon'ble Apex Court in its decision in case of Mithilesh Kumari and Anr. v. Prem Behari Khare , has held that the Act was retro-active if the matter was subjudice at the time of coming into force of the Act on 5.9.1988 at any stage and hence the suit, if filed even before, was not maintainable in view of retroactive operation of the Act. But the said decision was over-ruled by a Larger Bench of the Hon'ble Apex Court in case of R. Rajagopal Reddy (supra), in which it was finally held by the Hon'ble Apex Court that Section 3 of the Act was prospective in nature as the prohibition for entering into benami transaction came into force on 5.9.1988, when new liability or new offence was provided, and that even Section 4 of the Act does not apply retrospectively. It was also held that even for a transaction prior to coming into force of the Act, no suit or written statement can be filed after the said date i.e. 5.9.1988, raising the plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Order XIV, Rule 2 of the Code which reads as follows : Rule 2-Court to pronounce judgment on all issues.- (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall subject to the provisions of Sub-rule (2), pronounce judgment in all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof on an issue of law only, it may try that issue first if that issue relates to- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit postpone the settlement of the other issues until after that issue has been determined, may deal with the suit in accordance with the decision on that issue. 14. So far the plea of rejection of plaint is concerned, it can be done only as per the aforesaid provision of Order VII Rule 11 of the Code. But here in the instant case, neither the question of cause of action, nor the question of valuation of the suit nor the Court fees, nor the question of duplicate plaint, nor the question of non-compliance of Rule 9 had been raised by the said def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e plea of benami has not been raised by the plaintiffs in their plaint, rather it has been raised by the defendants in their written statement in the suit filed after 1988. Hence the question arises as to whether the bar provided under the Act would be applicable to the claim of the plaintiffs or to the objection raised by the defendants in the aforesaid circumstances. 19. All these issues can only be decided after considering the evidence adduced by the parties at the time of final hearing of the suit and these are not matters which can be decided at the initial stage either under Order VII Rule 11 or under Order XIV Rule 2 of the Code. In any view of the matter, it is yet to be proved in the instant case by valid evidence that whether the ingredients of benami transactions were present and the property in question was purchased benami and that at the time of the said purchase in 1956 and 1965 what was the intention of the buyers actual or name-lender. These issues can be decided only after considering the merits of the respective claims of the parties on the basis of their evidence and specific provisions of law. Hence, only on the basis of Section 4 of the Act the entire suit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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