The burden of proof lies with the plaintiff to establish a property as benami, which was not satisfied in this case.

JUDGMENT :

ANUBHA RAWAT CHOUDHARY, J.

Heard the learned counsel appearing on behalf of the appellant.

2. This second appeal has been filed against the judgment dated 31.05.2023 and decree dated 08.06.2023 passed by Additional Judicial Commissioner – XXI, Ranchi in Civil Appeal No.56 of 2018 whereby the appeal has been dismissed, affirming the judgment dated 25.08.2017 and decree dated 01.09.2017 passed by Civil Judge, Senior Division – X, Ranchi in Partition Suit No.42 of 2010 whereby the suit filed by the plaintiff has been dismissed.

3. The learned counsel for the appellant submitted that the suit was filed for partition claiming one-seventh portion of the suit land in which a house is also constructed, the details of which were given in Schedule A to the plaint, and for appointment of survey knowing pleader commission for preparation of separate takhta for the plaintiff with cost.

4. He submitted that the suit property was purchased by late Munilal Chouhan in the year 1991, in the name of the mother of the plaintiff, and as per the plaint, it was a Benami property and therefore, after death of Munilal Chouhan, the property was to be partitioned. He submitted that the specific case of the plaintiff was that his mother had no personal income and she was a house lady and was illiterate. He also submitted that the plaintiff had also made substantial contribution in the construction of the house over the property and therefore, the suit property was required to be partitioned.

5. The learned counsel further submitted that the Defendant No.2 had also filed a counter claim on the basis of transfer of property by the mother in favour of the Defendant Nos.2 and 4 during the pendency of the suit. The learned counsel has submitted that if the suit property was a benami transaction in the name of mother, then under such circumstances, the transfer was hit by lis pendens and consequently the counter claim could not have been allowed.

6. The learned counsel further submitted that the correspondences were placed on record to show that the plaintiff had contributed in the construction of the building on the suit property. The learned counsel submitted that aforesaid aspects of the matter have not been considered by the learned appellate court, and therefore, the appeal be admitted. He submitted that the proposed substantial questions of law have been filed on behalf of the appellant.

7. The proposed substantial questions of law filed on behalf of the appellant are as under:

“1. Whether the suit property was purchased by Munni Lal Chauhan in the name of his wife Moteshwari Devi, hence it is a joint family property at the hands of the plaintiff and defendants on the demise of Munni Lal Chauhan and the appellant is entitled to 1/7th share in the same?

If yes whether or not the Ld. Trial Court and Appellate Court below has committed legal wrong in dismissing the Partition Suit and Civil Appeal?

2. Whether the Defendant No.1 Moteshwari Devi did not have sufficient means to purchase the suit property or make construction thereupon nor any cogent evidence has been laid to show that she has sufficient means and income to purchase the suit properly and make construction thereupon and that Ld. Courts below have misinterpreted and misconstrued the provisions of Benami Transaction (Prohibition) Act, 1988?

3. Whether both the lower courts have wrongly decreed the suit and that the sale deed on the basis of which the defendant no. 2 sought relief by way of counter claim was hit by the principle of lis pendens u/s 52 of the Transfer of the Property Act as the same was executed by the defendant no. 1 on 24.06.2010 after the institution of suit hence the allowing the counter claim of the defendant no.2 is bad in law?”

8. The learned counsel for the appellant relied upon the judgment passed by the Hon’ble Supreme Court reported in (2018) 16 SCC 645 ( Vinod Kumar Dhall v. Dharampal Dhall ), paragraph 10, 11 and 16 and also the judgment passed by Hon’ble Allahabad High Co