Prohibition in regard to Benami Transaction will not apply to Sham Transaction.

These revision petitions are filed by plaintiff in O.S.No.32 of 1997 on the file of Sub court, Cuddalore.

2. These revision petition arise under the following circumstances:

Petitioner herein filed the suit for partition claiming 1/4th share in plaint ‘B’ schedule properties on the ground that the said item is family property. According to him, plaintiff and defendants 1 to 4 constitute a joint family. First defendant obtained about 5 1/2 acres of land from his ancestors and they were yielding good income. It is also said hat 4th defendant is also employed and first defendant is also getting good income. The income from the property was kept as surplus. Plaintiff after completing his education. is now a medical practitioner. Out of the family funds, a property was purchased at Annamalai Nagar, Chidambaram. Since first defendant was the kartha of the family, the same was taken in his name. Family also purchased a Mahindra Van, though the permit is also in the name of first defendant. The Van was profitably operated and that also yielded a good income. In view of his medical practice, plaintiff did not get time to verify how the income from the property are being spent.

3. Plaint property in this suit belonged to TELC, Cuddalore and first defendant and plaintiff negotiated for purchase for consideration of Rs.12 lakhs. For the said purpose, a loan on record was taken from 5th defendant and plaintiff was also informed that document has been taken. Plaintiff was also informed that the property has been purchased and plaintiff wanted to verify the sale deeds. First defendant was giving evasive answers and after verification it was found that document has been taken in the name of 5th defendant. It is the case of plaintiff that the document in favour of 5th defendant is only sham and real owner is the family. Though document stands in the name of 5th defendant, it is only sham transaction and he has not spent any amount for purchasing the same. Family fund alone wa utilised and 5th defendant is not getting any independent title. It is the case of plaintiff that sale deeds have not been completed and returned to defendants 3 and 5. Suit was therefore laid for partition claiming 1/4th share in the plaint 1B’ schedule property and allot plaintiff on demarcating the same by Commissioner.

4. Reason for filing this revision petition is that 5th defendant filed an application in I.A.No.304 of 1997 under O.7, Rule 11 of Code of Civil Procedure. In his affidavit, 5th defendant contended that suit is barred under Benami Transaction Prohibition Act and consequently barred by law. Even though plaint allegation is only sham transaction under Benami Transaction Prohibition Act, even sham transaction is barred and consequently suit is liable to be struck off the file and the same is liable to be rejected.

5. Detailed counter affidavit was filed by defendants contending that plaintiff has no cause of action and plaint is liable to be struck off.

6. Plaintiff alsofiled I.A.No.662 of 1997 to reject I.A.No.304 of 1997 filed by 5th defendant.

7. Both these applications were heard together and by the impugned order, it is held that in regard to ‘B’ Schedule item No.1 is concerned the plaint is rejected. Application filed by plaintiff in I.A.No.662 of 1997 was also dismissed. It is against the common order, plaintiff has filed these revision petitions.

8. Notices have been served on the respondents and I heard the learned counsel on both sides.

9. Learned counsel for petitioner submitted that the impugned order is without jurisdiction and lower court has acted illegally in rejecting plaint in part. Learned counsel further submitted that Benami transaction and sham transaction are entirely different and what is prohibited under Benami transaction is only Benami transaction as defined under that At and not sham transaction.

10. Learned counsel for respondents submitted that impugned order do not call for any interference and lower court