The Benami Transactions (Prohibition) Act, 1988 repealed provisions of the Indian Trusts Act, 1882 and the Code of Civil Procedure, 1908, and bars claims against properties held as benami, influencing the court's decision in this case.

VALMIKI J. MEHTA, J. (ORAL)

C.M. No. 8372/2012 (Exemption)

Application allowed, subject to all just exceptions.

C.M. stands disposed of.

C.M. No. 8337/2012 (U/O 22 Rule 4 CPC)

Since respondent No.2 is stated to have died after the filing of the appeal in the Registry, the application is allowed, and the legal heir of respondent No.2 as stated in para 4 of this application, is brought on record.

C.M. stands disposed of.

C.M. No. 8336/2012 (Delay in re-filing) and C.M. No. 8335/2012 (Delay in filing)

Though, in my opinion, prima facie, there does not appear to be a good ground for condonation of huge delay of 202 days in re-filing the appeal, since however, I have heard the appeal on merits, I am allowing the application for delay in filing and re-filing the appeal subject to just exceptions.

C.M. stands disposed of.

RFA No. 207/2012

1. The challenge by means of this Regular First Appeal (RFA) filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the trial Court dated 2.4.2011 dismissing the suit and/or rejecting the plaint by holding that the same is barred by Benami Transactions (Prohibition) Act, 1988 and also by limitation.

2. The disputes in the present case center around the ownership of a flat No. C-1/F, DDA Flats, Munirika, Delhi. The appellant/plaintiff-Sh. J.M. Kohli claims to be the owner of the suit property. The suit property however from the very beginning stands in the name of defendant No.1/respondent No.1/Madan Mohan Sahni, inasmuch as, the flat was allotted to him by the Delhi Development Authority (DDA) and the entire documentation qua the title of the property also stands in the name of respondent No.1. The title documents in name of respondent No.1/defendant No.1 exist from 1981 till date.

3. The facts of the case are that the appellant/plaintiff filed the subject suit for declaration, possession and mandatory injunction against respondent No.1/defendant No.1-Sh. Madan Mohan Sahni (brother-in-law), defendant No.2-Smt. Vimla Kanta (exwife) and defendant No.3-Smt. Renu (daughter of the plaintiff). The basic cause of action pleaded in the plaint is that it is the appellant/plaintiff who is the owner of the property because the sale consideration of the suit property was paid entirely by him.

4. Respondent No.1 filed two applications for dismissal of the suit and/or for rejection of

the plaint claiming that the suit was barred by Section 4 of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as the “Benami Act”), and also that the suit was barred by time, inasmuch as, the appellant/plaintiff way back in the year 1984 had filed a suit No. 157/1984 seeking to declare himself as the actual owner of the suit flat, respondent no.1 being only the benamidar, and which suit was withdrawn on 17.9.1987. The present suit had been filed after 23 years on 22.5.2010.

5. Trial Court has dealt with both the aspects of the suit being barred by the Benami Act and also by limitation by making the following observations:-

“4.1 (Findings) – The first application is taken. The rival contentions are assessed in the light of statutory provisions of law and precedent. It is an admitted fact in the first suit no. 157/84, plaintiff (J.M.Kohli) filed the suit against Smt. Vimla Kanta (defendant no. 2 herein) and against Sh. M.M. Sahani (defendant no. 1 herein), he was permitted on 17.09.1987 to withdraw the first suit and to file fresh suit, therefore, there was no finality to the suit or issues involved, therefore, principle of res-judicata embodied under section 11 of CPC will not be applicable. To that extent defendant no. 1 application carries no merit. Let us take the other features of the application.

4.2 The defendant no. 1/Madan Mohan Sahani is brother of defendant no. 2 Smt. Vimla Kanta (plaintiffs ex-wife). Section 3 of the Act, 1988 bars benami transaction. Section 3 of the Act does not apply, when the property is purchased in the name of wife or