9911796707
TMI Blog2021 (8) TMI 820X X X X Extracts X X X X X X X X Extracts X X X X ..... that thereby, the counter claim was permitted to be withdrawn without liberty and consequently, the counter claim of the first defendant was ordered to be dismissed as withdrawn. The plaintiffs also filed a memo stating that they had impleaded the defendants 2 to 4 as formal parties and as such, the relief claimed against them is given up. It is further evident that since the defendants have not raised any objection, the said memo was ordered to be recorded. As rightly contended by the learned counsel for the plaintiffs and as rightly observed by the learned Trial Judge, since the relief claimed as against the transport authorities were already given up and the reliefs claimed against the first defendant alone are pending, the question of bar under Section 94 of the Motor Vehicles Act does not arise at all. Benami transaction - Available evidence clearly indicates that the case of the plaintiff that the property was purchased by her from and out of the income from the 'B' schedule property is more probable and acceptable and the fact that the mother had contributed funds for the purchase of the property in the name of her son having been proved, the claim of the fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... file of the District Munsif Court, Paramakudi. 3. For sake convenience and brevity, the parties hereinafter will be referred as per their ranking/status before the Trial Court. 4. Admittedly, the plaintiffs are sons of the first defendant. The plaintiffs, by alleging that the bus bearing Registration No. TN 65 Y 9516 together with permit to ply in the route from Paramakudi to Tirupathur, was owned by them, but the registration certificate and route permit stand in the name of their mother/first defendant, filed the above suit claiming the following reliefs:- (a) Granting an order of permanent injunction against the first defendant or her agent not to alienate or encumber the schedule mentioned bus and route in any manner. (b) Granting an order of permanent injunction to restrain the first defendant or her men or agent not to interfere with the peaceful possession and enjoyment of the schedule mentioned bus by the plaintiffs. (c) Granting an order of permanent injunction against the defendants 2 to 4 not to transfer the schedule mentioned route permit to the third party without consent of the plaintiffs. 5. By amending the plaint, they have also claimed the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t defendant was ordered to be dismissed as withdrawn. The plaintiffs also filed a memo stating that they had impleaded the defendants 2 to 4 as formal parties and as such, the relief claimed against them is given up. It is further evident that since the defendants have not raised any objection, the said memo was ordered to be recorded. As rightly contended by the learned counsel for the plaintiffs and as rightly observed by the learned Trial Judge, since the relief claimed as against the transport authorities were already given up and the reliefs claimed against the first defendant alone are pending, the question of bar under Section 94 of the Motor Vehicles Act does not arise at all. 10. Now coming to the bar of the suit under Section 4 of Benami Transactions (Prohibition) Act, 1988, the plaintiffs after amending the plaint, have claimed the relief of declaration that the suit bus and route permit are belonging to them and for permanent injunction originally claimed against the first defendant restraining her from alienating or encumbering the bus and route permit and also restraining her from interfering with peaceful possession and enjoyment of the bus by the plaintiffs. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale deed executed by the first defendant in favour of the second defendant is null and void. The second defendant has filed a petition under Order 7 Rule 11 of Civil Procedure Code to reject the plaint alleging that the plaintiff has admitted that he had purchased the property in the name of his wife/first defendant out of love and affection and for the benefit of his wife and children and as such the suit is barred under Section 3(2) of Benami Transactions (Prohibition) Act, 1988. Section 3(2) of the said Act contemplates that Sub Section 1 shall not apply to the purchase of the property in the name of wife or his unmarried daughter and it is presumed, unless the contrary is proved, that the suit property had been purchased for the benefit of wife or unmarried daughter. This Court, by observing that the issue is not a pure question of law but mixed question of fact and law and that same can be decided only after detailed trial by appreciating the oral and documentary evidence let in by the parities, dismissed the revision petition by confirming the order of the Trial Court. 15. At this juncture, it is necessary to refer the judgment of this Court rendered by Hon'ble Mr. Jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efit of other members in the family and the consideration for such property has been provided or paid out of the known sources of the Hindu Undivided family; (ii) a person standing in a fiduciary capacity for the benefit of another person towards whom he stands in such capacity and includes a trustee, executor, partner, director of a company, a depository or a participant as an agent of a depository under the Depositories Act, 1996 (22 of 1996) and any other person as may be notified by the Central Government for this purpose; (iii) any person being an individual in the name of his spouse or in the name of any child of such individual and the consideration for such property has been provided or paid out of the known sources of the individual; (iv) any person in the name of his brother or sister or lineal ascendant or descendant, where the names of brother or sister or lineal ascendant or descendant and the individual appear as joint-owners in any document, and the consideration for such property has been provided or paid out of the known sources of the individual; or (B) a transaction or an arrangement in respect of a property carried out or made in a fictitious name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... she has no other income. Moreover, as rightly pointed out by the plaintiffs' side, they have been alleging that the transactions were of the year 1997 and 2011 and the suit was laid in the 2013 and as such the Benami Transactions (Prohibition) Act, has no application. As rightly observed by the Trial Court, the issue is not a pure question of law but mixed question of fact and law and the same can be gone into only at the main trail. 18. It is not in dispute that the plaintiffs' side witnesses were already examined and when the first defendant's side evidence was in progress, the first defendant has come forward with the above petition. As already pointed out, the suit was filed in the year 2013 and when the trial was at the fag end, she has filed the above petition in the year 2018 for rejecting the plaint. Considering the facts and circumstances, as already observed by the learned Trial Judge, the above petition came to be filed only to drag on the proceedings. 19. Considering the above, the decision of the Trial Court in dismissing the petition for rejection of the plaint cannot be found fault with and this Court is entirely in agreement with the same. Hence, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
