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TMI Blog2020 (6) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... n 5, can never arise. Otherwise the exemption granted under Section 3 (2) would become redundant . The suit has been rightly dismissed by both the courts below as the plaintiff has not impleaded his other sons or daughters as party in the suit, as their interest also involved in the suit as they have also inherited the property of her mother Lakhiya Devi. They have not been impleaded party by the plaintiff even after objection raised by defendants in their written statement. Thus, both the courts below have rightly held that suit is barred under the provisions of Benami Transaction (Prohibition) Act, 1988 as well as the suit is also barred for non-joinder of necessary parties. The sale deeds standing in the name of Lakhiya Devi (deceased), wife of plaintiff are not self-acquired property of the plaintiff and the defendant no. 1 Kamla Kuer has valid right to execute power of Attorney with regard to land of her mother Lakhiya Devi to the extent of her share. - S.A. No. 193 of 2017 - - - Dated:- 17-6-2020 - Mr. Justice Kailash Prasad Deo For the Appellants : Mr. Rahul Kumar Gupta, Advocate For the Respondents : Mr. Sanjay Kumar Tiwary, Advocate ORDER 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t no. 1 has no legal right to execute and register the power of Attorney No. 10359/183 dated 21.09.2010 in respect of suit land or portion thereof; (C) For cost of the suit and (D) For any other relief or reliefs for which the plaintiff is entitled. 4. Defendants have appeared and filed their written statement jointly on 14.02.2011. The specific case of the defendants is that admittedly Lakhiya Devi died leaving behind two sons and four daughters, but the plaintiff has arrayed only Kamla Kuer as defendant and left other legal heirs, as such, suit is barred for non-joinder of necessary parties, apart from improper value and maintainability of the suit. Defendants have asserted that Lakhiya Devi died in the year 2005 and all her sons and daughters are co-sharers and the plaintiff is wrongly claiming that he became the absolute owner of the property standing in the name of his wife, though plaintiff is conscious of recital of all the sale deeds as the land in question is being purchased by Lakhiya Devi for her own benefits as well as for the benefits of all her legal heirs. The defendants have further asserted that the suit is barred under the Benami Transactions (Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cording to her share which is equal to the share of the sons of the deceased mother under the Hindu Succession Act, 1956, as amended on 09.09.2005. Thus, the power of attorney executed by defendant no. 1 in favour of defendant no. 2 is a good and valid documents and prayed to dismiss the suit. 6. On the basis of the pleadings, the trial court has framed as many as eight issues for adjudication of the suit:- I. Is the suit as framed and filed in its present form, maintainable? II. Has the plaintiff valid cause of action for the suit? III. Whether the suit is bad for non-joinder of necessary party? IV. Is the suit barred under the provision of Benami Transaction (Prohition) Act, 1988? V. Whether the sale deed standing in the name of Lakhiya was selfacquired property of the plaintiff? VI. Whether the defendant No. 1 Kamla Kuer had valid right to execute any power of Attorney with respect to the suit land and whether the power of Attorney No. 10359/183 dated 21.09.2010 is valid, genuine operative? VII. Is the palintif entitled to the relief as sought? VIII. To what other relief or relieves the plaintiff is entitled? 7. In order to prove its case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red this appeal. 15. Learned counsel for the appellants, Mr. Rahul Kumar Gupta, has assailed the impugned judgment on the ground that the suit is not barred by Benami Transaction (Prohibition) Act, 1988 and in all the ten sale deeds, the entire consideration amount has been paid by the plaintiff from his own earnings being Class-IV employee, whereas both the courts below have considered the aforesaid purchase made by Lakhiya Devi without any evidence. 16. Learned counsel for the appellants has further submitted that the finding given by the learned trial court with regard to Issue No. IV to the effect that the suit is barred under the provisions of Benami Transaction (Prohibition) Act, 1988 is perverse, in view of the judgment passed by the Hon'ble Apex Court in the case of Nand Kishore Mehra Vs. Sushila Mehra reported in 1995 (4) SCC 572 , whereby the Hon'ble Apex Court dealt with the scope of Section 3, 2, 4 (1) 2 of the Benami Transaction (Prohibition) Act and held as follows:- Sub-section (1) of Section 3, prohibits a person from entering into any benami transaction. Sub-Section (3) of Section 3 makes a person who enters into a benami transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the registering authority that consideration money has been paid by Vendee. Thus, both the courts below have rightly considered that evidence of D.W.-1 cannot be left out. The issue akin to this Court has already been decided by the Apex Court in the case of Nand Kishore Mehra (Supra). It has been held in the said case that Sub-Section 2 of Section 3 permits a person to enter into benami transaction of purchase of property in the name of his wife or unmarried daughter by declaring that the prohibiton contained against a person in entering into a benami transaction in sub-section (1) of Section 3, does not apply to him. The question of punishing the person concerned in the transaction under sub-section (3) thereof or the question of acquiring the property concerned in the transaction under Section 5, can never arise. Otherwise the exemption granted under Section 3 (2) would become redundant . 20. The suit has been rightly dismissed by both the courts below as the plaintiff has not impleaded his other sons or daughters as party in the suit, as their interest also involved in the suit as they have also inherited the property of her mother Lakhiya Devi. They have not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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