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TMI Blog2021 (3) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... uciary capacity, and the property held by him could not, therefore, be treated as Benami, in view of Section 4(3)(b) of the Benami Act, is inconsistent with the pleadings in the plaint. The argument that, from a plain reading of the plaint, it is clearly inferable that the plaintiff had asserted the properties as joint family properties is not correct. That was not the case, made out in the plaint. It is true, as argued by Colonel Balasubramanian, that a plaint can be rejected on consideration of the averments in the plaint, but not the allegations made by the Defendant in defence. The plaintiff claims to have made investments in the suit properties purchased in the name of the Defendants. As observed by the High Court, it is not even the case of the plaintiff that joint family funds have been invested in the property. Rather it is the case of the plaintiff that the property was purchased from the funds of the plaintiff. As held by this Court in Popat and Kotecha Property v. State Bank of India Staff Association [ 2005 (8) TMI 691 - SUPREME COURT ], clause (d) of Rule 11 of Order VII CPC applies only in those cases where the statement made by the plaintiff in the plaint, without an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid suit under Order VII Rule 11, Order VI Rule 16 and Section 151 of the Code of Civil Procedure [hereinafter referred to as CPC ] for rejection of the plaint, inter alia, contending that the claim of the plaintiff in the plaint was prohibited by the Prohibition of Benami Property Transactions Act, 1988 [hereinafter referred to as Act of 1988]. 5. The expressions Benami Property and Benami Transaction have been defined in Section 2(8) and Section 2(9) of the said Act of 1988, which are set out hereinbelow for convenience: 2(8) benami property means any property which is the subject matter of a benami transaction and also includes the proceeds from such property; 2(9) benami transaction means,- (A) a transaction or an arrangement- (a) where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by, another person; and (b) the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration, except when the property is held by- (i) a Karta, or a member of a Hindu undivided family, as the case may be, and the property is held for his benefit or benefit of other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 such property. 7. Reference may also be made to Section 6 of the Act of 1988, which is set out hereinbelow: 6. Prohibition on re-transfer of property by benamidar.-(1) No person, being a benamidar shall re-transfer the benami property held by him to the beneficial owner or any other person acting on his behalf. (2) Where any property is re-transferred in contravention of the provisions of sub-section (1), the transaction of such property shall be deemed to be null and void. (3) The provisions of sub-sections (1) and (2) shall not apply to a transfer made in accordance with the provisions of section 190 of the Finance Act, 2016 (28 of 2016).] 8. On a perusal of the plaint, it is patently clear that the Petitioner has, in the plaint, pleaded that the suit properties belonged exclusively to the Petitioner as the head of the joint family, but the same had been purchased in the name of the Defendants. It is nowhere stated that the suit properties were purchased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trustee and such position exempts the prohibition of the Act u/s 4(3). Moreover this position can only be determined in the final evidence and not on the averments of plaint allegations. ii) The other aspect in the plaint that the 1st defendant s deal with the minor defendant No.2 being void with respect to his share, even if any, is under totally a different legal position, distinct and separate from Benami Prohibition Act. Iii) The clear position under Section 45 of T.P. Act that, the transferee holds right in proportion to the funds supplied by them individually and the plaint averments making it clear that no fund was supplied by the 1st defendant makes his right nil and this position under T.P. Act is not taken away by the Benami Prohibition Act. 4. All the above said aspects being yet to be proved and set up in a final evidence, the plaint cannot be simply rejected on its bare averments and wrongly applying only the prohibition under Benami Prohibition Act. 11. By a judgment and order dated 16th November 2015, the Principal Senior Civil Judge JMFC, Hosapete allowed the said application filed by the Defendant No.1 inter alia under Order VII Rule 11 of the CPC and rejected the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. and Ors. (2019) 4 SCC 367, this Court referred to and relied upon Popat and Kotecha Property (supra). This Court however, found on facts, that going by the averments in the plaint in that case, the question whether the plea raised by the Appellant was barred under Section 4 of the Act of 1988 or not, could not have been the subject matter of assessment, at the stage when the application under Order VII Rule 11 of the Code of Civil Procedure had been taken up for consideration. 20. The contention of the Petitioner, that the High Court has passed its final judgment and order dated 7th February 2017, impugned in this Special Leave Petition, mechanically, without appreciating the issues, is devoid of merit. There is nothing in the impugned judgment of the High Court or of the Trial Court, wherefrom it may be inferred that the Courts overlooked any part of the pleadings in the plaint or read any part of the plaint in isolation and out of context. 21. In our considered view, there is no infirmity in the order of the Trial Court and impugned judgment of the High Court rejecting the plaint under Order VII Rule 11 of the CPC for the reasons discussed above. Substantial justice has been d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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