The central legal point established is that the amended provisions of the Benami Transactions (Prohibition) Act, 1988, specifying exceptions to benami transactions, must be considered before rejecting a suit under Order VII Rule 11 CPC.

VALMIKI J. MEHTA, J

1. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit impugning the Judgment of the Trial Court dated 19.12.2016 by which trial court has rejected the plaint under Order VII Rule 11 CPC by applying provisions of Sections 4 read with repealed Section 3(2) of the Benami Transactions (Prohibition) Act, 1988.

2. The subject suit was filed by the appellant/plaintiff/husband pleading that the two properties with respect to which reliefs of declaration and injunction were claimed in the suit, namely B-1/58, New Moti Nagar, New Delhi-15 and bearing no. B-206, C-DOT, CGHS Apartments, Sector-56, Gurgaon, were purchased by the appellant/plaintiff/husband from his own sources as stated in the plaint including paras 9 and 11 of the plaint. Paras 9 and 11 of the plaint read as under:-

“9. That the earnest money for the purchase of the property was bearing no. B-1/58, New Moti Nagar, Delhi of Rs.25,000/-(Rs Twenty Five thousand only) has been paid by the Plaintiff vide cheque no.511459 dated 03.02.2001 for the amount of Rs.20,000/- (Rs. Twenty thousand only) and Rs.5,000/-(Rs Five thousand only) in cash. That the balance amount of Rs Eight lacs has been paid by the Plaintiff from the sources which are as follows:

Fixed deposit matures on 19.05.2001	Rs.69,085
Sale of shares of Reliance Industries	Rs.63,000
Sold Janta Flat in Tagore Garden (Property was in the name of Plaintiff)	Rs.1,85,000
Provident fund 28.05.2001	Rs.79,600
Personal loan secured from CitiBank	Rs 80,000
Personal loan taken from Brother-in-law and returned to Sister vide cheque	Rs.60,000

Rest of the amount was arranged by taking loan from friends.

xxxx xxxx xxxx xxxx

11. That thereafter the Plaintiff purchased another property bearing no. B-206, C-DOT, CGHS Apartments, Sector-56 Gurgaon for the amount of Rs.47,00,000/- (Rs Fourty Seven Lacs only). That the above said property has been planned to be purchased by the parties in the joint name of the Plaintiff as well as Defendant from the joint owners Smt. Sangeeta Srivastava and Sh. Rajmohan Srivastava. However due to change in the policies of the society, Plaintiff had to purchase the aforementioned property also in the name of the Defendant. Details of the payment and the source of income is mentioned herein below:

From A/C of Plaintiff vide cheque bearing no.160517	Rs.5,00,000/-
cheque bearing no.160518	Rs.5,00,000/-
Vide Cheque bearing no.914362/ 363/364 in the name of Vikrant Madaan as per request of vendee.	Rs.2,60,000/-
Loan Sanctioned from ICICI Bank	Rs.30,99,000/-

Monthly installments for the amount of Rs.34,123 earlier and for the amount of Rs.30,457/- has regularly been debited from the savings account of Plaintiff since August 2007. That further an amount of Rs.5,00,000/- has also been paid to the Bank towards prepayment of the loan.”

3. Accordingly in the suit, reliefs of declaration and injunction were claimed that it was the appellant/plaintiff/husband who was the owner of the properties and not the respondent/defendant/wife.

4. Unfortunately, the trial court has committed a grave and fundamental error in rejecting the suit plaint under Order VII Rule 11 CPC by relying upon the provision of Section 4 and repealed provision of Section 3(2) of the Benami Transactions (Prohibition) Act. When the impugned judgment was passed on 19.12.2016, what was, and is now applicable is the Prohibition of Benami Property Transactions Act, 1988 which became applicable w.e.f 1.11.2016. As per Section 2(9) of the Amended Act what is a Benami Transaction is stated/specified, and also those transactions which are not benami are also stated/specified. As per the su