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TMI Blog2021 (10) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... undivided family nor the joint property of such undivided family. In this circumstance, the absence of such pleadings, which are the requirement under sub-section (3) of Section 4 of the Act, 1988, for the maintainability of the suit as an exception to the provision under Section 4(1) of the Act, 1988, is totally missing. The prayer under Order VII Rule 11 of the CPC for rejection of plaint has to be considered only on the basis of the plaint averments and nothing else. The plaint averments as disclosed herein-above clearly shows that nothing has been pleaded to show that the suit property was held by Savitri Devi as coparcener of a Hindu undivided family and the same was for the benefit of all the coparceners of the Joint Hindu family. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The suit is being contested by the petitioners. The application was moved by the petitioners under Order VII Rule 11 of the CPC on the ground that the suit is not maintainable under the provisions of Benami Transactions (Prohibition) Act, 1988 (for short 'the Act, 1988'), which has been dismissed by the impugned order. 3. It is submitted by Senior Counsel for the petitioners that clearly according to the pleadings of the plaint, the claim of title was made by the respondents on the basis that the suit property was purchased benami in the name of Savitra Devi, however, this claim of the respondents has been challenged by the petitioners. It is pleaded in the plaint itself that Savitri Devi had executed a will dated 3.6.2017 in fav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in matters connected with such undertaking. Also more specifically, in a statute, a guardian, trustee, executor, administrator, receiver, conservator or any person acting in any fiduciary capacity for any person, trust or estate. 5. It is submitted in the case of Vishram alias Prasad Govekar and Ors. vs. Sudesh Govekar (D) by Lrs. and Ors. , reported in AIR 2017 SC 583 , it was held that such a kind of dispute cannot be drawn into as it is barred under the provisions of Section 4 of the Act, 1988. It is also submitted that in the case of Saurabh Sharma late Manharan Lal Sharma vs. Bankelal (Died) through LR's, reported in AIR Online 2020 Chh 50 , this High Court has clearly held that such a suit for declaration of title on the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learly mentioned that the whole amount of consideration was paid by father of Savitri Devi, therefore, the possession of Savitri Devi in holding that property was that of a trustee for the joint family property. 7. Reliance has been placed on the judgment of Supreme Court in the case of Pawan Kumar vs. Babulal since deceased through Legal Representatives and Others , reported in (2019) 4 SCC 367 , in which it was held that when the controversy has arisen on the ground claiming that the holder of property has held the same in fiduciary capacity then such a question must be gone into on the strength of the evidence on record and it cannot be decided at the stage of deciding the application under Order VII Rule 11 of the CPC. Hence, learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t property was held by Savitri Devi as coparcener of a Hindu undivided family and the same was for the benefit of all the coparceners of the Joint Hindu family. This being the position on the basis of the facts and pleadings in the plaint, there is no material to draw conclusion that the suit filed by the respondents is covered under the exception as provided under Section 4 (3) of the Act, 1988. This being the conclusion, the suit filed by the respondents appears to be clearly barred under Section 4(1) of the Benami Act, 1988 and in such a case the plaint of the respondents is liable to be rejected under Order VII Rule 11(d) of the CPC. 10.On the basis of the findings given and the conclusions drawn, it is held that the impugned order p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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