The central legal point established in the judgment is the applicability of the Prohibition of Benami Property Transactions Act, 1988, particularly Section 4, to the suits and the principles related to benami transactions and fiduciary capacity.

JUDGMENT

Amit Rawal, J. - This order of mine shall dispose of four revision petitions bearing Nos.19, 20, 22 and 162 of 2017 arising out of the order dated 17.10.2016, whereby, applications filed under Order 7, Rule 11 CPC for rejection of the civil suits bearing Nos.269 of 2010 titled as "Jagdish Varinder vs. Gurpal Kaur and others"; 294 of 2010 titled as Jagdish Varidner vs. Gurpal Kaur and another" 266 of 2010 titled as Jagdish Varinder Singh vs. Bhupinder Kaur and others and 268 of 2010 titled as "Jagdish Varinder vs. Gurinder Singh and others" being not maintainable under law, have been dismissed.

2. Mr. R.B.S. Chahal, learned counsel appearing on behalf of the petitioners submitted that in all the suits, pith and substance of the plaint reveals that the declaration of ownership has been sought by taking up the plea of Section 4 of Prohibition of Benami Property Transactions Act, 1988 (for short "1988 Act") on the premise that they purchased the land at various places including the suit land owing to the fact that the plaintiff had dispute with his former wife Shubreet Kaur. Due to close relationship, the defendants were in fiduciary relations and trustees of the plaintiff. In this regard, their names being ostensible owners were reflected in the sale deeds subject matter of the aforementioned suits. The said plea in lieu of the provisions of Section 2(9) and 4 of 1988 Act, is not admissible but the Court below has abdicated in not noticing the aforementioned fact holding it to be mixed question of fact and law and dismissed the applications by keeping the question open to be decided at the final stage.

3. In support of the aforementioned, relied upon the judgment rendered by the Delhi High Court in Anil Bhasin vs. Vijay Kumar Bhasin 2003 (2) RCR (Civil) 839 as all the

sale deeds are post 1988. There would have been some force in the defence of the respondent-plaintiffs, had the transactions are prior to 1988.

4. Learned counsels appearing on behalf of the respondents opposed the revision petitions by supporting the impugned orders and jointly submitted that suit at the threshold cannot be dismissed as the question of fiduciary capacity for purchasing the property for the benefit of other person as ostensible owner in the name lender as the aforementioned pleadings and arguments can only be elaborated if the parties are given opportunity to lead evidence after framing of the issues.

5. In support of the aforementioned submissions, laid reliance upon the ratio decidendi culled out by the Hon'ble Supreme Court in Marcel Martins vs. M.Printer and others 2012 (5) Supreme Court Cases 342 , wherein the Hon'ble Supreme Court on facts held that defendants had stood in fiduciary capacity vis-a-vis plaintiff and transaction was, thus, saved from prohibition under Section 4 of 1988 Act.

6. I have heard the learned counsel for the parties and appraised the paper book.

7. The legislature in the wisdom while promulgating the prohibition of 1988 Act, had put a complete ban on the benami transactions/ostensible owners except by keeping exception in sub-section (3) of Section 4 of 1988 Act, by deleting the relevant provisions in Trust Act, as well.

8. The aforementioned Act was held to be retrospective by the Hon'ble Supreme Court in Mithlesh Kumari vs. Premi Bihari Khare JT 1989 (1) SC 275 .

9. On coming to question of transaction being benami or otherwise, many litigation arose after promulgation of Benami Transaction Act, 1988. The Hon'ble Supreme Court in Mithlesh Kumari vs. Premi Bihari Khare JT 1989 (1) SC 275 , held that Section 4(1) of the 1988 Act would apply to the suit filed even prior to the coming into force of the Act. The aforementioned decision was referred to larger Bench of this Court in R.Rajagopal Reddy (D) by LRs and others vs. State of Tamil Nadu 1995 (1) RRR 353 , wherein, it was held that provisions of the Act would apply prospectively, i.e. sale deeds affected in this case prior to promulgation of the Act, thus, wo