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TMI Blog2020 (3) TMI 1107X X X X Extracts X X X X X X X X Extracts X X X X ..... nly after considering merits of respective claims of parties on the basis of their evidence. Hence only on basis of Section 4 of Act, entire suit cannot be allowed to fall at preliminary stage. [See also Mridula Singh vs. Brahmdeo Pd. Singh [ 2005 (9) TMI 684 - PATNA HIGH COURT ] Whether the provisions of Section 4(3)(a) of the Benami Transactions (Prohibition Act), 1988 would be applicable to daughter-in-law, since she is not coparcener in Hindu undivided family? - As observed that while considering exemption under Section 4 in respect of Benami Transactions, the existence of fiduciary capacity has to be determined in circumstances of individual cases. In the aforesaid case, it has also been observed that since the daughter-in-law was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decree of divorce a sale deed was executed in favour of the applicant and respondent by which they purchased suit property namely shop Nos.6 7 situated at House No.1582 and 1582/1, Civil Station, Nazul Block No.5, Plot No.18/3, Jain Tower, Swami Dayanand Saraswati Ward, Jabalpur (M.P.) in the joint name of applicant and respondent. Subsequently, the said property was mutated in the joint names of the parties vide order dated 11.07.2014. 3. The applicant has alleged that earlier the said property was in joint possession of both the parties. After passing the divorce decree in favour of the applicant, respondent and his son wanted to dispossess applicant from the suit property on 03.03.2016. Applicant further contended that they raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned trial Court without considering the provision of Benami Transactions Act and bar contained in the said Act has dismissed the application under Order 7 Rule 11 (d) of C.P.C. For this no evidence was required to be led. The Apex Court also held that a suit or counter claim containing plea of Benami Transactions should not be tried. It is also alleged by the applicant that the trial Court has failed to follow the binding precedents. Hence, she prayed to set aside the impugned order and that counter claim filed by the respondent be dismissed. 8. Heard learned counsel for the parties. Perused the record. 9. Order 7 Rule 11 (d) of C.P.C. prescribed as under:- 11(d). where the suit appears from the statement in the plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce on record does not indicate that the transfer made in favour of the respondent Nos.1 and 2 by respondent No.3 was in fact a transfer for some one else's interest. Therefore, it cannot be held that the transfer vide Ex.P-1 made in favour of the respondents 1 and 2 was a Benami transaction. Further, the appellant is not the heir of respondent No.3 Tejkaran. He had no interest in the property when the transfer in favour of the respondents 1 and 2 was effected by a registered sale deed. He was also not a creditor of Tejkaran who may claim that to defeat his interest the transfer was made. Actually the present appellant is a subsequent transferee of the suit land. Therefore, he cannot now challenge the earlier transaction on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of daughter-in-law would be maintainable. 14. Thus, from perusal of the ratio laid down in the case of Smt. Kanchan Jain (Supra) which has been relied upon by the applicant, and if read in juxtaposition with the law laid down in the case of Mridula Singh (Supra), there cannot be any iota of doubt that issue regarding maintainability of the counter claim can be well adjudicated by the trial Court by framing an issue on the basis of the evidence led by the parties in respect of Benami Transactions. 15. Thus, in the light of the principles laid down in the decisions governing the field and in the facts and circumstances of the case, this Court comes to the conclusion that there is no illegality or perversity in the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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