The main legal point established in the judgment is the distinction between property held benami and joint Hindu family property standing in the name of a member of such family, and the interpretation of the provisions of the Benami Transactions (Prohibition) Act, 1988.

HIGH COURT OF MADHYA PRADESH, JABALPUR

Shantanu Kemkar, J.

Meera – Appellant

Vs.

Heera Bai – Respondent

Miscellaneous Appeal No. 46 of 2003

Decided on : 27/9/2004

JUDGMENT

1. This appeal under order 43, rule I (u) of the Code of Civil Procedure has been directed against the judgment and decree dated 25-10-2002 passed by the learned VI Additional District Judge, Sagar, in Civil Appeal No. 28A/02 setting aside the order dated 16-8-2000 passed by the II Civil Judge, Class II, Sagar, in Civil Suit No. 13A/2000.

2. Shortly stated the facts of the case are that the respondents/plaintiffs filed a civil suit alleging that the plaintiff and the defendant are members of joint Hindu family. Kashiram Raj, husband of plaintiff No. 1, father of plaintiff Nos. 2 to 5 purchased a plot out of joint Hindu family property in the name of defendant who is his daughter-in-law. It is further pleaded that the plaintiff No. 2 is husband of the defendant and because of matrimonial disputes between them the defendant threatened to evict the plaintiffs from the suit property and also trying to sell the suit property. Accordingly, the plaintiffs prayed for following reliefs:

A. The land purchased vide sale deed dated 14-11-1977 in the name of the defendant and the house constructed over the same be declared to be the joint family property as the land in question was purchased by late Kashirarn Raj, husband of plaintiff and father of plaintiff Nos. 2 to 5 in the name of his grand daughter defendant.

B. The defendant be restrained from seeking eviction of the plaintiffs, recovery of rent and from selling the suit property.

3. The appellant/ defendant filed written statement and contended that the property is not a joint family property but of her own as she purchased the same out of her own funds. An application was also filed by the defendant under order VII, rule 11 of the Civil Procedure Code seeking rejection of the plaint on the ground that in view of the prohibition contained in section 4(l) of the Benami Transactions (Prohibition) Act, 1988 ('the Act'), the suit filed by the plaintiffs is barred. Accordingly, it was prayed that, the plaint be rejected.

4. After hearing on the application the trial court vide order dated 16-8-2002 dismissed the suit holding it to be barred by the Act. The plaintiffs being aggrieved filed appeal before the learned VI Additional District Judge, Sagar. The appeal was allowed by the learned Additional District Judge and he remanded the case to the trial court for deciding the suit on merits. Hence, this appeal.

5. Shri Sanjay Agrawal, learned counsel for the appellant, contended that the judgment and decree passed by the lower appellate court holding the respondents suit to be maintainable is erroneous. According to him, from the plaint averments itself, the suit being hit by the provisions of section 4 of the Act, the trial court has rightly dismissed the same. He also contended that the plaintiffs' suit is not covered under sub-clause (a) of clause (3) of section 4 of the Act and, therefore, the prohibitory section is attracted.

6. Smt. Shimla Jain, learned counsel for the respondent, has contended that the trial court while deciding the application filed under order VII, rule 11 of the Civil Procedure Code, was required to see only the plaint averments. On the basis of the plaint averments, the suit cannot be said to be a suit to claim right in respect of any property held Benami by the defendant. The property being a joint Hindu family property, the suit to enforce right in respect of the said property filed by the appellant cannot be said to be barred. In support, learned counsel for the respondents has relied on the Division Bench judgment passed in the case of Subhash Chandra Gupta v. Gyanchand 1994 JLJ 262 and submitted that the lower appellate court has committed no error in setting aside the order passed by the trial court.

7. The Division Bench of this court in the case of Subhash Chandra Gupta (supra) whi