IMPORTANT POINT
Rejection of plaint – In absence of any bar contained in Section 14 of Benami Transactions (Prohibition) Act, 1988, suit plaint is not liable to be rejected as barred by law.

JUDGMENT :

(Pankaj Mithal, J.)

1. These two special leave petitions have been preferred, one by the contesting defendant No.2 to the suit and the other by one of the subsequent purchasers (defendant No.5) of some of the suit properties against the rejection of an application under Order VII Rule 11 of Code of Civil Procedure¹[In short ‘CPC’] by the court of first instance as well as the High Court in revision.

2. Special Leave Petition (C) No.4673/2023²[Smt. Shaifali Gupta vs. Smt. Vidya Devi Gupta & Ors.] preferred by the main contesting defendant to the suit is taken up as the lead case, therefore, the facts as stated therein and the parties as described therein shall be narrated and taken as a base.

3. The two plaintiffs i.e. the mother and the son being Smt. Vidya Devi Gupta (plaintiff No.1) and Shri Sudeep Gupta (plaintiff No.2) instituted a Regular Suit No.630A/2018 against the other son of plaintiff No.1 i.e. Sandeep Gupta (defendant No.1) and his wife Smt. Shaifali Gupta (defendant No.2). In the said suit, the two sons of the defendant No.1 namely Siddharth Gupta and Shantanu Gupta were arrayed as defendant Nos.3 and 4. The wife of the plaintiff No.2, Smt. Shalini Gupta and his son Sankalp Gupta were added as defendant Nos.8 and 9. In addition to the above family members, Deepak Lalchandani and Surya Prakash Mishra were also arrayed as defendant Nos.5 and 6 being the subsequent purchasers of some of the properties mentioned in the plaint.

4. The aforesaid suit is for partition, possession, declaration, mandatory & permanent injunction and for accounting with regard to the properties alleged to be the family properties purchased out of the funds of the joint family or derived from the income from the joint family business. In other words, the suit is basically between the family members. The mother and one son on one side and the other son and his family on the other side. The children of both the sons are non-active or passive parties.

5. According to the plaint allegations, the father of the two sons referred to above i.e. Shanti Prakash Gupta was into a tailoring business. Gradually his tailoring business came to an end. He died in the year 1977. He had no immovable or movable property at the time of his death.

6. In the year 1982, the two sons jointly started a tailoring business from a rented shop in New Market, TT Nagar, Bhopal, in the name of ‘Himalaya Tailors’. This business was started by them by selling some jewellery of their mother i.e. plaintiff No.1. The said business was carried on by both of them together but the younger brother (plaintiff No.2) was appointed and declared to be the sole proprietor.

7. The family, sometime in 1990, purchased a house in Harshwardhan Nagar and they started residing in it. They lived there jointly at least up to the year 2011. It appears that the elder son (defendant No.1) along with his family started residing in a house in Shalimar Park which was jointly purchased by the family from the income of the joint family business in the year 2014.

8. Side by side the tailoring business, the elder son (defendant No.1) had started a fabric business in the name of Hemi Textiles in the year 1986.

9. A shop was purchased by the family in the New Market, TT Nagar, Bhopal, from the combined income of the family business of Himalaya Tailors and the Hemi Textiles.

10. It is averred in the plaint that from the original joint family business of ‘Himalaya Tailors’, both the parties purchased several properties in the name of different persons of the family. All the properties were purchased out of the joint family funds or the income derived from the joint family business. It was categorically asserted that the properties have been purchased in the name of the plaintiffs and the defendants or the members of the family and were the joint properties of the Joint Hindu Family. The said properties were described in paragraph 6 of the plaint. Some of the properties mentioned in paragraph 6 of the plaint at