9911796707
TMI Blog1990 (2) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... laintiff and the defendant No. 1. The plaintiff contended that thereafter the legatees of the said will i.e. he and defendant No. 1 came in joint possession of the aforementioned properties. It has further been asserted by the plaintiff that he constructed a house over the lands standing on M.S. Plot No. 636 Municipal Holding No. 312 situated at Tewari Tank Street, Ranchi. 5. It is further admitted that a partition suit was filed by Ram Kumar Mistri along with his sons in the Court of Subordinate Judge, Ranchi which was registered as Partition Suit No. 66 of 1961 wherein, inter alia, the plaintiff and the defendant No. I and their other brothers were impleaded as parties. The said suit ended in a compromise and a final decree in terms of the aforementioned compromise was passed on 16-2-1951. The said aforementioned will was executed by Sheolal Mistry dated 5-1-1938 (sic). The plaintiff has contended that the properties described in items Nos. (iii) and (iv) of the Schedule B appended to the plaint were purchased out of the joint family fund belonging to the plaintiff and the defendant No. 1. According to the plaintiff, although, the said properties stand in the name of defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in her written statement contended that the properties described in Items Nos. (iii) and (iv) of the Schedule B appended to the plaint are her own properties and the plaintiff and the defendant No. 1 have got no interest in the same. It was further contended by the defendant No. 2 that the suit as framed was not maintainable and it was barred by adverse possession as also barred under the Proviso to Section 34 of the Specific Relief Act, It was further contended that unless the plaintiff pays ad valorem Court-fee on the market value of the properties, a simple suit for partition is not maintainable. 12. On the basis of the aforementioned pleadings of the parties, the learned trial Court framed the following issues :- 1. Is the suit as framed maintainable? 2. Has the plaintiff got any valid cause of action or right to sue in this suit? 3. Is the suit barred by law of limitation, adverse possession and ouster? 4. Is the suit barred Under Section 34 of the Specific Relief Act? 5. Is the suit hit by the principles of partial partition? 6. Is the suit bad for defect of parties? 7. Is the Court-fee paid sufficient in this suit? 8. Is there existence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the joint family and in this view of the matter, the suit barred under provisions of Benaral Transactions (Prohibition) Act, 1988; (c) even on facts the plaintiff could not prove that the said properties were joint family properties. 15. Mr. Debi Prasad, the learned counsel appearing on behalf of the plaintiff-respondent, on the other hand, submitted that as the plaintiff has categorically pleaded that the properties mentioned in items Nos. (iii) and (iv) of the Schedule B appended to the plaint are joint family properties and thus no ad valorem court-fee was payable on the market value of the said properties. The learned counsel further contended that in view of the fact that Benami transaction is not prohibited in respect of the purchase of a land by a husband in favour of his wife, in view of the provisions of Sub-section (2) of Section 3 of the Act, the defendant No. 1 being the husband of the defendant No. 2, the purported benami transaction having been done by the defendant No. 2 as a member of the joint family in the name of his wife, the same is saved under Sub-section (2) of Section 3 of the said Act. 16. The learned counsel further submitted that the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been held to be a necessary party was impleaded in the said suit wherein, her title in respect of the said properties was questioned. In this circumstances, in my opinion, ad valorem court fee was payable. 23. In Tejpal Saraogi v. Mahadeo Lal reported in AIR 1951 Pat 526, this Court held as follows:- (at page 527 of AIR 1951 Pat). It cannot, therefore, be said that any incidental finding of fact is necessary in order to give the main relief which the peters, claim, so for as the stranger-alienees are concerned. Either the petnrs, are claiming no adjudication against the stranger alienees or they are claiming an adjudication to displace their title. As there can be no relief of partition against the strangers, the only relief claimed against them is the displacement of their title based on the transfers made in their favour. That would undoubtedly be an independent declaration of title not necessarily connected with the relief of partition. If no relief is claimed against the strangers, then they should not have been made parties to the litigation. It seems to me that so far as the stranger-defts, are concerned, the suit is, in substance, a suit for a declaration of title, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 28. As noticed hereinbefore, the principal question which arises in this case is as to whether the properties described in Items Nos. (iii) and (iv) of the Schedule B appended to the plaint are benami in nature or not. The plaintiff, in paragraph 13 of the plaint alleged as follows :- That lands situated at village Jorar, P. S. Namkum, District Ranchi more fully described in Items Nos. (iii) and (vi) of Schedule B to the plaint have also been purchased out of joint family funds belonging to the plaintiff and defendant No. 1. Although the deeds stand in the name of defendant Np. 2, she has no interest in the said properties but in order to avoid future complication she is being made defendant No. 2 in this suit. The plaintiff and defendant No. 1 are also coming in joint possession of the properties mentioned in Items Nos. (iii) and (vi) of Schedule B to the plaint. 29. From the allegations made in paragraph 13 of the plaint, it is clear that it is not the case where a property has been acquired by the joint family in the name of a coparcener. 30. According to the plaintiff himself, the defendant No. 2 had no right, title and interest in the property. 31. Benami T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uralia Kaharin disposed on 20-9-1978, it has been held by me that if a case comes within the purview of Section 3 of the said Act, Section 4 will not operate as a bar in the maintainability of the suit. 35. in the instant case, Section 3(2) of the said Act has no application. By reasons of the provisions of the said Act, the Parliament intended to bring on statute book the doctrine of advancement which was not prevalent in this country. 36. An acquisition of property in the name of his wife of a coparcener by the joint family will, in my opinion, constitute a benami transaction and will not be saved under Section 3(2) of the said Act. From a bare perusal of Section 4(3) of the said Act, it is evident that even such a case is not protected thereunder. 37. In this view of the matter, in my opinion, it has to be held that the suit filed by the plaintiff in respect of Items Nos. (iii) and (iv) of the Schedule B appended to the plaint was barred under the Provisions of Benami Transaction (Prohibition) Act, 1988. 38. In the result, the appeal is allowed in part and it is declared that the plaintiff-respondent is entitled to partition in respect of 1/2 share only in relatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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