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2013 Supreme(MP) 953
MADHYA PRADESH HIGH COURT AT JABALBUR BENCH
K.K.Trivedi, J.
Anand Kumar - Appellant
Versus
Vijay Kumar & Ors. - Respondent
C.R. No. 410-2011
Decided On : 26-04-2013
For petitioner: Mr. Pranay Verma
For respondent: Mr. Sourabh Bhushan Shrivastava
The main legal point established in the judgment is that a suit claiming ownership based on benami transactions is not maintainable under Section 4(1) of the Benami Transactions (Prohibition) Act, 1988.
Headnote:
Benami Transactions - Civil Suit - Benami Transactions (Prohibition) Act, 1988 - Section 4(1) - The court discussed the provisions of Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 and its applicability to the suit filed by the respondent. The court found that the suit was hit by Section 4(1) of the Act and therefore dismissed the application filed by the petitioner under Order 7 Rule 11 (d) of CPC, ultimately dismissing the suit filed by the respondent.
Fact of the Case:
The respondent filed a suit claiming ownership of certain land purchased benami in the name of the petitioner. The petitioner filed an application under Order 7 Rule 11 (d) of CPC stating that the suit was not maintainable under the Benami Transactions (Prohibition) Act, 1988.
Finding of the Court:
The court found that the suit filed by the respondent was hit by Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 and therefore dismissed the application filed by the petitioner, ultimately dismissing the suit filed by the respondent.
Issues: The main issue was whether the suit filed by the respondent was maintainable under the Benami Transactions (Prohibition) Act, 1988.
Ratio Decidendi: The court held that the suit filed by the respondent claiming ownership based on benami transactions was hit by Section 4(1) of the Act, and therefore not maintainable.
Final Decision: The court allowed the revision, set aside the impugned order, and dismissed the suit filed by the respondent as barred under Section 4(1) of the Benami Transactions (Prohibition) Act, 1988.
Based on the legal document provided, here are the key points:
- Case Details: The case is Anand Kumar vs. Vijay Kumar & Ors., decided by the Madhya Pradesh High Court at Jabalpur Bench on 26-04-2013, involving Civil Suit No. 72-A/2010 and C.R. No. 410-2011 (!) (!) .
- Facts of the Case: The respondent purchased land benami in the name of the petitioner (his nephew) in 1982 and 1983, paying the entire consideration and taking possession. The petitioner later mutated the name and attempted to sell the property, prompting the respondent to file a suit for declaration of title and permanent injunction (!) [27000298010001].
- Procedural History: The petitioner filed an application under Order 7 Rule 11(d) of the CPC arguing the suit was barred by the Benami Transactions (Prohibition) Act, 1988. The trial court rejected this application, leading to the current revision (!) [27000298010002].
- Petitioner's Argument: The petitioner contended that Section 4 of the Act prohibits any suit claiming rights based on benami transactions, regardless of whether the transaction occurred before or after the Act's enactment (1988), provided the suit is filed after the Act came into force [27000298010003].
- Respondent's Argument: The respondent argued that the Act was not retrospective and since the transactions occurred in 1982 and 1983 (prior to the Act's 1988 enactment), the bar under Section 4(1) should not apply. They also argued that maintainability objections should only be raised after the written statement and evidence recording [27000298010004].
- Legal Principle Established: The court held that the bar under Section 4(1) applies to suits filed after the Act came into force that claim rights based on benami transactions, even if the underlying transaction occurred prior to the Act's enactment. The bar is on the "claim" or "suit," not on the timing of the transaction itself [27000298010006][27000298010007].
- Judicial Precedents: The judgment relied on the Supreme Court rulings in Duvuru Jaya Mohana Reddy Vs. Alluru Nagi Reddy (regarding the applicability of the bar post-enactment) and Prabodh Chandra Ghosh vs. Urmila Dassi (regarding pending claims prior to enactment) [27000298010007].
- Court's Finding: The court found that the respondent's plaint explicitly claimed title based on benami transactions executed in 1982 and 1983. Since the suit was filed after the Act
JUDGMENT
This revision is directed against the order dated 09.09.2010 passed in Civil Suit No. 72- A/2010, by which the Second Civil Judge Class - II Gadarwara, District Narsinghpur rejected the application of the petitioner / defendant No. 1 under Order 7 Rule 1 1 of the Code of Civil Procedure.
2. Brief facts giving rise to filing of this revision are that the respondent No.1 filed the suit alleging that the petitioner / defendant No. 1 is his real nephew, being son of the elder brother of respondent No. 1. Since the marriage of the respondent No. 1 had taken place at a later stage, and he was not having any issue at the relevant time, he purchased certain land benami on the name of the petitioner vide registered sale deed dated 21.04.1982. The entire sale consideration was paid by respondent No. 1 and he was put in possession. Only the name of the petitioner was recorded as purchaser benami. It is further contended that the land in other village was also purchased in the same matter benami by a registered sale deed dated 25.10.1983, though the entire sale consideration by the respondent. The petitioner got the name mutated over the land in suit 2-3 years back, after attaining the majority and is trying to sale out the property, therefore, the cloud is caused on the title of the respondent No. 1 and, therefore, the suit is required to be filed for declaration of title to the effect that the respondent No. 1 is in fact purchased the land in suit by a registered sale deed dated 21.04.1982,03.08.1982 and 25.10.1983 benami in the name of the petitioner but he is the real owner. A decree of permanent injunction is also claimed.
3. The petitioner herein after service of summon of the suit filed an application under Order 7 Rule 11 (d) of CPC stating that the suit as famed by the respondent No. l was not maintainable and the plaint was liable to be rejected as the same is barred under the provisions of Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as 'Act'). The trial Court has rejected the application of the petitioner therefore, this revision is required to be filed.
4. It is vehemently contended by learned counsel for the petitioner that a bare perusal of provisions of Section 4 of the Act makes it clear that the suit as filed by respondent No. 1, for the relief aforesaid, was prohibited under the law made by the Parliament. It is contended that if it was mentioned in the plaint that the benami transaction has taken place even prior to coming into force of the Act, the same would be hit by provisions of Section 4 of the Act. It is thus, contended that the suit as filed by the respondent No. 1 was hit by Sub - section (1) of Section 4 of the Act and the same was not maintainable. The plaint was liable to be rejected. However, this particular aspect has not been considered by the Court below and the application filed by the petitioners has wrongly been rejected. It is contended that in such circumstances, the order impugned is bad in law and is liable to be set aside. It is contended that the suit as filed by the respondent No. 1 is liable to be dismissed.
5. Per contra, it-is contended by learned counsel appearing for the respondent No. 1 that the entire plaint is required to be seen while considering the application under Order 7 Rule 11 of CPC. The written statement is required to be filed by the petitioner and then only an objection can be taken with respect to maintainability of the suit. Only after framing of the issues, recording of evidence, the suit could have been decided. This being the situation, it cannot be said that the suit was framed by the respondent No. 1 was not maintainable and thus, the application of petitioner was rightly rejected. It is also contended that the Act as made in the year 1988, the transaction had taken place in the year 1982 and 1983 and, therefore, since the transaction was prior to coming into force of the Act, it cannot be said that the bar as prescribed under the provisi
