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TMI Blog2019 (11) TMI 1789X X X X Extracts X X X X X X X X Extracts X X X X ..... er of trial as to whether the property is individual property or has been purchased by the joint family funds. Since there is no averment that there was any Hindu Undivided Family in existence and the properties were purchased out of Hindu Undivided Family, no evidence can be permitted to be led by the Plaintiffs on the said aspect. In the absence of pleadings to the said effect, no evidence can be led. An application filed by the Respondents/plaintiff under Order 6 Rule 17 CPC to specifically plead existence of Hindu Undivided Family was rejected by the Trial Court by order dated 22.09.2017 and no appeal was filed impugning the order dismissing the application for amendment. Suit appears from the statement in the Plaint to be barred by the Benami Transactions (Prohibition) Act, 1988. - C.R.P. 238/2018 & CM APPL. 46420/2018 - - - Dated:- 7-11-2019 - HON BLE MR JUSTICE SANJEEV SACHDEVA For the Petitioner: Mr. C.M. Grover, Advocate For the Respondent: Mr. H.S. Sharma and Mr. Rakesh Kumar, Advocates with legal heirs/respondents JUDGMENT SANJEEV SACHDEVA, J. (ORAL) 1. Petitioner impugns order dated 22.09.2017 in so far as it dismisses the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th whom the plaintiff had all love and affection and also the wife of the plaintiff got deep love and affection as the youngest son was very much attached with the parent and hence the plaintiff decided to settle amicably the children in different ways. The plaintiff also decided to promote the business for the youngest son late Sh. Surender Singh Kaisi and ultimately started carrying out the business in the name of his youngest son Shri Surender Singh Kalsi and provided all financial assistance for promoting the business of his youngest son with the help of Sh. Mahender Singh who also provided financial assistance to the family business promoting by the plaintiff. The wife of the plaintiff also sold all her ornaments and also invested all her earnings in the family business being promoted by the plaintiff and the entire savings of life of the plaintiff was given to the youngest son for the development and promotion of independent business as the plaintiff and his another son Sh. Mahender Singh started carrying out the business along with the youngest son and also the youngest son being the youngest one was given extra favour while giving financial assistance in the different busin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue to the indifferent attitude towards the family members the youngest son of the plaintiff started keeping alone and also started keeping unwell and also intimated time and again that the defendant no. 1 is of greedy nature and also the youngest son apprehended that either the family members will be implicated in some false cases or the youngest son may be killed in dubious circumstances and in fact it so happened that only 30 days back the youngest son was administered some alcoholic poison through which the youngest son of the plaintiff got senseless and was taken to hospital where he breathe his fast living the plaintiff and the family members alone. ***** ***** ***** 13. That the relationship of the joint family will be clear from the pedigree i.e. given below:- Dr. Darshan Singh Sh. Mahender Singh (Son) Late Sh. Surender Singh Kalsi (Son) It is further submitted that the other sons have no concern with the joint family property that has been developed and purchased by the plaintiff together with the son Sh. Mahender Singh and late Sh. Surender Singh Kalsi, out of their own earnings through the joint business of the family th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. Section 4 of the Benami Transactions (Prohibition) Act, 1988 (prior to its amendment by the Amendment Act 2016) reads as under: 4. Prohibition of the right to recover property held benami. (1) No suit, 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. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. (3) Nothing in this section shall apply - (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... early, the trial court has erred in dismissing the application under Order 7 Rule 11 CPC solely on the ground that an issue has been framed and it would be a matter of trial as to whether the property is individual property or has been purchased by the joint family funds. 23. Since there is no averment that there was any Hindu Undivided Family in existence and the properties were purchased out of Hindu Undivided Family, no evidence can be permitted to be led by the Plaintiffs on the said aspect. In the absence of pleadings to the said effect, no evidence can be led. 24. Further, it may be kept in mind that an application filed by the Respondents/plaintiff under Order 6 Rule 17 CPC to specifically plead existence of Hindu Undivided Family was rejected by the Trial Court by order dated 22.09.2017 and no appeal was filed impugning the order dismissing the application for amendment. 25. Accordingly, the Suit appears from the statement in the Plaint to be barred by the Benami Transactions (Prohibition) Act, 1988. 26. In view of the above, the impugned order dated 22.09.2017 is set aside. Application filed by the petitioner under Order 7 Rule 11 is allowed. Subject Plain is a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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