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TMI Blog2017 (2) TMI 1478X X X X Extracts X X X X X X X X Extracts X X X X ..... is joint family of the schedule properties and any dealings with them in the capacity as the sole owner. In the said proceedings, defendant No.1 filed IA-V under Order VII Rule 11 r/w Section 151 of Code of Civil Procedure seeking rejection of plaint alleging that the suit is hit by the provisions of the Benami Transaction (Prohibition) Act, 1988, ('Act' for short). The plaintiff had filed objections to the said application. The trial Court after considering the arguments advanced by the learned counsel for the parties and appreciating the material on record, allowed IA-V rejecting the plaint. Aggrieved by the same, the plaintiff is in appeal. 4. Sri Hanumanthareddy Sahukar, learned counsel appearing for the appellant would contend that the trial court without properly considering the entire averments in the plaint only relying upon paragraphs 8,11 and 13 of the plaint had wrongly come to the conclusion that plaint averments are hit by the provisions of the Act. The trial Court failed to observe that IA-V filed by defendant No.1 for rejection of plaint is not maintainable. The contention raised in the application requires to be considered on the merits of the suit which requires e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the parties and perused the material on record. The only point that arises for consideration in this appeal is, whether the trial Court was justified in rejecting the plaint for the reason that the suit is barred by the Benami Transaction (Prohibition) Act, 1988? 8. It is trite law that plaint under Order VII Rule11 can be rejected only on the basis of the plaint averments and not on allegations made by the defendant in his written statement or on the basis of the allegations in the application for rejection of the plaint. Keeping the said well settled legal propositions in mind, the plaint averments are examined which is part of the appeal papers. 9. Para 3 of the plaint discloses that the plaintiff has earned the money with his hard labour and being the eldest son of the joint family, taken care of his brothers and sisters in bringing them up by providing education and performing marriage of his sister. He had worked in different capacities including as a conductor in KSRTC. He was compelled to resign from the said job to materialize the sale deed of the schedule property. It was at that stage the 1st defendant approached as being an advocate financing for MVC and L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot deserve right in the schedule properties. Thus, plaint averments clearly establishes that the plaintiff is claiming to be the investor for the suit properties investing his hard earned money on the said properties. It is not even the case of the plaintiff that his joint family funds are invested for the purpose of purchasing the properties, on the other hand, it is the case of the plaintiff that it is his own investment. It is also clearly contended that defendantNo.1 has not invested any amount to purchase the said properties. Defendant No.1 was included as a join towner in the sale deeds only in a fiduciary capacity to act as a legal adviser and not as a owner. Thus, the plaintiff is claiming exclusive right over the suit properties being purchased by him in the name of defendant No.1 as a legal advisor and defendant No.2,his brother, who was a minor at that time. 10. These plaint averments makes it manifestly clear that the transaction is benami in the light of the provisions of the Act. At this juncture, it is apt to refer to Sections 3 and 4 of the Act, which runs thus: "Sec.3 - Prohibition of benamitransactions:- 1. No person shall enter into any benamitransaction. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cable to the facts of the present case. 12. In the case of Vaish Aggarwal (supra), the Hon'ble Apex Court while considering the suit filed by the plaintiff for a decree of separate possession of agreement of sale in respect of the land, held that the allegations in the plaint are absolutely different. The question was whether suit could be dismissed as barred by limitation. It was observed that the question of limitation is a mixed question of fact and law and exfacie reading of the plaint, it could not be held that suit was barred by time and it was further observed that a finding has been recorded by the High Court accepting the plea taken in the written statement. In the factual matrix of the case therein, there should have been atrial with regard to the issues framed. 13. In the case of R.K.Roja (supra),the Hon'ble Apex court had taken the view that the application under Order VII Rule 11 CPC "was not filed at earliest opportunity" and that the appellant was not diligent in prosecuting the application. In that context, it was held that the application under Order VII Rule 11 CPC could be filed at any stage but the only restriction is that the consideration of the application ..... X X X X Extracts X X X X X X X X Extracts X X X X
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