The court held that a claim for property belonging to a joint Hindu family is not barred as benami under the Prohibition of Benami Property Transactions Act when purchased with family funds, requiring evidence for objections.

JUDGMENT :

SANDEEP JAIN, J.

1. The instant first appeal under Section 96 of the CPC has been preferred by the plaintiff in O.S. no. 1034 of 2022 Omprakash Gupta versus Radheyshyam Gupta, against the impugned judgment and decree dated 3.3.2023 passed by the Court of Additional Civil Judge(Senior Division) Second, Gorakhpur, whereby the defendant's application 38-C under Order 7 Rule 11 CPC was allowed and consequently, the plaintiff's suit was dismissed being barred by Section 4 read with Section 2(9) of The Prohibition of Benami Property Transactions Act, 1988 (hereinafter referred to as the 'Act').

2. Factual matrix is that the plaintiff – appellant filed O.S. no. 1034 of 2022 against his elder brother/defendant Radheyshyam Gupta with the averments that their father Krishnanath died about 45 years ago and at that time plaintiff was minor and since then the plaintiff and defendant are the members of a joint Hindu family, the defendant being its head and Karta.

3. It was further averred by the plaintiff that he and the defendant came to Gorakhpur in the year 1987 – 88 where they jointly started timber and sugarcane business and they gradually started accumulating money. The plaintiff averred that whatever he used to earn, he gave it to his elder brother/defendant, being the Karta of the joint family. He further averred that from their joint earning on 30.10.1995 in Indranagar, Gorakhpur five decimal land measuring 2180 ft² was purchased in the name of the defendant to which he didn't object, keeping in view the reputation and dignity of the family and also because the defendant was his elder brother and was also the head and the Karta of the joint Hindu family. He further averred that in the year 1993 he and the defendant after due consultation purchased two plots of land in Transport Nagar, Gorakhpur, out of which plot no. 56 was purchased in the name of defendant and plot no. 12 was purchased in his name. He further averred that he has constructed a three storey house on plot no. 12, in which till the year 2010, the families of plaintiff and defendant along with their mother resided together. He further averred that plot no. 56 has been bounded and pillars and walls have been constructed on it and merely the lantern remains to be cast.

4. The plaintiff further averred that he and the defendant continued to do business jointly and in the year 2002 land was purchased by them in the name of their mother Sitabi Devi in Siddhath Enclave, Ramgarh Taal, Gorakhpur and thereafter, from the income of joint family, a three storey house was constructed on it, the house tax of which was being paid by their mother Sitabi Devi. He further averred that he and the defendant are still residing jointly in the above house.

5. The plaintiff further averred that thereafter, from the joint income of the family, on the plot purchased in Indranagar, Gorakhpur in the year 1995, on the ground floor a hall was constructed in which the plaintiff's son is running the shop in the name and style of Jai Maa Durga Supermarket and on its upper floor, four persons have been inducted as tenants and in the basement, half portion has been allotted to the parking of vehicles and another half portion has been rented to Sidhi Plywood, whose proprietor is Baijnath Gupta and on the first floor, Shriram Transport Company, a coaching centre and security company are functioning.

6. He further averred that his son Shubham took contribution of Rs. 8 lakhs from his elder brother Ajeet Kumar Gupta for running the Jai Maa Durga Supermarket