Issue No. 11, whether the suit is hit by the Benami Transactions (Prohibition) Act, 1988, is not an issue of law only and should be decided along with other issues at trial.

JUDGMENT :

P.C. Misra, J. - The defendants in Title Suit No. 67 of 1983 are the petitioners in this revision. By the impugned order, the court rejected the contentions of the defendants made in an application for preliminary hearing on issue No. 11. Issue No. 11 is to the following effect : "Whether the suit is hit by the Benami Transactions (Prohibition) Act, 1988."

2. The plaintiff claims title to the suit property on the allegation that the same was purchased by him in the name of defendant No. 1, who happens to be his wife who deserted him about 10 years back. Defendant No. 1 has transferred the said property, in favour of defendant No. 2. The plaintiff alleges that he would not be bound by the said transfer. The defendants, in their written statement, have raised a plea that, in view of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as "the Act"), the suit is not maintainable. In view of these pleadings, issue No. 11 as quoted above has been framed.

3. The learned court below, analysing the provisions of Section 3, subsection (2), and Section 4 of the Act, came to the conclusion that the prohibition contained in Sub-section (1) of Section 3 to the effect that "no person shall enter into any benami transaction" does not apply to the transfer of property by any person in the name of his wife or unmarried daughter. It has been so provided in Sub-section (2) of the said Section. The court below is, therefore, of the view that, since the suit transaction which the plaintiff alleges to be benami, is not hit by Section 3, Sub-section (1), of the Act, the suit has, therefore, been held to be maintainable notwithstanding the prohibition contained in Section 4 of the Act. The impugned order was passed while considering a prayer made by the defendants in an application for trying issue No. 11 first as, according to them, it is an issue of law and the court would be able' to dispose of the suit for want of jurisdiction.

4. The said application must be construed as one under Order 14, Rule 2, of the Code of Civil Procedure. Sub-rule (1) of Rule 2 of Order 14 of the CPC provides that: "Notwithstanding that a case may be disposed of on a preliminary issue, the court shall, subject to the provisions of Sub-rule (2), pronounce judgment on all issues." Sub-rule (2) thereof is an exception to Sub-rule (1). Sub-rule (2) permits an issue to be tried first as a preliminary issue, provided it is an issue of law only and it relates to the jurisdiction of the court or a bar to the suit created by any law for the time being in force. Admittedly, the sale deeds stand in the name of defendant No. 1, which the plaintiff claims to be a benami transaction. Subsection (2) of Section 3 of the Act provides that the restriction in Subsection (1) that "no person shall enter into any benami transaction" shall not apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter. Since there is a statutory presumption available under Sub-section (2) of Section 3 of the Act, it is necessary that opportunity be given to rebut the presumption to the party against whom the presumption arises. Thus, in order to determine whether the presumption under Sub-section (2) of Section 3 would apply, it may be necessary for either or both of the parties to lead evidence. I am, therefore, of the view that issue No. 11 raised in the suit is not an issue of law only.

5. Learned counsel for the petitioners has further submitted that various other questions may arise for determination for the purpose of finding out whether the suit would be barred u/s 4 of the Act which, according to him, has not been taken into consideration by the court while passing the impugned order. He has submitted that even though the prohibition under Sub-section (1) would not apply to a transaction by t