9911796707
TMI Blog1992 (4) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... er of defendants Nos. 1, 2 and 4 and husband of Smt. Sahib Kaur owned about 3,000 bighas of agricultural land in village Luku, Roda, Noorpur Thal, in Tehsil Khushab, District Sargodha, and in village Saiyanwala in Tehsil and district Lyallpur in addition to a garden measuring about 30 bighas and a number of houses and shops in Sargodha, Roda and Noorpur. Sardar Anoop Singh died on September 5, 1941. It is the allegation of the plaintiff that disputes arose between the parties after the death of Anoop Singh and an arbitrator was appointed who made and published his award on August 18, 1985. As per the award, the agricultural land and garden remained the joint property of the plaintiff and defendants Nos. 1 and 2. No property was awarded to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intly in favour of the plaintiff and defendant No. 2 in village Niharsi cancelling the allotment in their favour in village Pheruwala. Similarly, the earlier allotment in favour of defendant No. 1 in village Pheruwala was cancelled and he was permanently allotted three pieces of land having a total area of 36 standard acres in villages Bilaspur, Marwa Kalan and Nainawali in Tehsil Jagadhari, District Ambala. During 1948-49, Smt. Sahib Kaur alone used to receive the agricultural income from the land allotted to the plaintiff and defendant No. 2 but used the same for common purposes. Till 1953, she had been receiving income from the land allotted to the plaintiff and defendant No. 2 in village Niharsi and used to put it in a common pool. Till ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , gold ornaments weighing about 15 tolas along with one set of silver jug and tumblers and decoration ornamental pieces of silver, all weighing about 200 tolas, for safe custody. Similarly, defendant No. 2 entrusted to his mother four gold rings weighing about 3 tolas for wearing which were kept in the locker. Sahib Kaur died on August 22, 1981. On her death, defendant No. 4 and her husband tried to take possession of 3-A/29 wrongfully and illegally. It was in September, 1981, that defendant No. 4 proclaimed that Sahib Kaur had made a will in her favour bequeathing the property bearing No. 3-A/29. Defendant No. 4 tried to take forcible possession of house No., 3-A/29 and has in fact removed gold ornaments and silver from the locker on the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty be partitioned. She also executed another will dated September 30, 1978, which is being probated in the court of the District judge. The Benami Transactions (Prohibition) Act, 1988 (hereinafter called as " the Act "), came into force on September 5, 1988. Section 3 of the Act creates prohibition of benami transactions. Section 4 stipulates prohibition of the right to recover property held benami. Section 4 reads as follows : "Section 4. Prohibition of the right to recover property held benami. (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hur Bhim Singh [1980] 3 SCC 72 ; AIR 1980 SC 727. The plaintiff in this case has pleaded that the house in question was purchased by the plaintiff out of Hindu undivided family funds. It was out of love and affection and respect for his mother that he got the sale deed effected in her name. Sahib Kaur had in fact no independent source of income. She was managing the agricultural land and administering the property which was a joint property of the plaintiff and defendants Nos. 1 and 2. Therefore, she had no right to bequeath this property which was purchased from the Hindu undivided family funds. Mr. Lonial, learned counsel, therefore, contended that the suit as such will not be prohibited nor hit under sub-section (1) of section 4 of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reciation of the material on record that the transaction was benami. But, in the case in hand, it is yet to be proved by reliable evidence as to whether the property in suit was purchased benami or not and what was the intention of the parties when the same was purchased. For arriving at this conclusion, one has to go through the merits of the case. Before arriving at any decision, it is necessary that the parties should lead evidence. Merely on the ground of section 4 itself, the suit cannot be thrown out at this preliminary stage. The question whether a female can be a coparcener or not will also be decided after the full facts are placed on record and after evidence is led. Hence, this issue will be decided along with other issues on mer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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