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2016 Supreme(MP) 415
IN THE HIGH COURT OF MADHYA PRADESH
Alok Verma, J.
Kasturi Bai v. Smt. Kusumlata Bai and others
Civil Revision No.24 of 2016 (Indore); against order
dated 4.1.2016 passed by Second Civil Judge, Class-I, Dewas
in Civil Suit No.6-A of 2015; Decided on 4.7.2016.
Navneet K. Verma for applicant; Shahid Sheikh for non-applicant No.1;
S. S. Pandey for non-applicant No.2;
Manish Sankhala for non-applicants No.3 and 4.
Headnote: ¼1½ flfoy izfØ;k lafgrk] 1908 & /kkjk 54] vk-20 fu-18 ] vk-7 fu-11 rFkk /kkjk 115 & csukeh laO;ogkj ¼izfr"ks/k½ vf/kfu;e] 1988 & /kkjk 3 rFkk 4 & foHkktu] dCtk rFkk LFkk;h O;kns'k ds fy, okn & laifÙk viuh iRuh ds uke Ø; dh xbZ & ,d iq=h }kjk vius 1@4 va'k ds fy, okn izLrqr fd;k x;k & izfroknh Øekad 1 }kjk vkns'k 7 fu;e 11 ds v/khu vkosnu fd okn 1988 ds vf/kfu;e dh /kkjk 3 rFkk 4 ds mica/kksa ds v/khu oftZr gS & ,slk vkosnu lgh&gh [kkfjt fd;k x;k & vkns'k 7 fu;e 11 ds v/khu vkosnu ds iz;kstu ds fy, & dsoy okni= esa fd, x, izdFku ns[kuk gksrs gSa & okni= esa fd, x, izdFkuksa ls & vf/kfu;e dh /kkjk 3¼2½ ls laO;ogkj lqjf{kr Fkk & 1988 ds vf/kfu;e ds mica/kksa dk ykxw gksuk & dsoy rc ns[kk tk ldrk gS tcfd okni= esa dfFkr rF; lkfcr gSa ;k lkfcr ugha & iqujh{k.k esa gLr{ksi ughaA ¼iSjk 9
¼2½ csukeh laO;ogkj ¼izfr"ks/k½ vf/kfu;e] 1988 & /kkjk 3 rFkk 4 & mica/kksa dk ykxw gksuk & laifÙk viuh iRuh ds uke Ø; dh xbZ & ,d iq=h }kjk vius 1@4 va'k ds fy, foHkktu] dCtk rFkk LFkk;h O;kns'k ds fy, okn & flfoy izfØ;k lafgrk ds vkns'k 7 fu;e 11 ds v/khu vkosnu fd 1988 ds vf/kfu;e ds mica/kksa ds v/khu okn oftZr gS & vkosnu [kkfjt fd;k x;k & vkns'k 7 fu;e 11 ds v/khu vkosnu ds iz;kstu ds fy, & dsoy okni= esa fd, x, izdFku ns[kuk gksrs gSa & 1988 ds vfèkfu;e ds mica/kksa dk ykxw gksuk & dsoy rc ns[kk tk ldrk gS tcfd okni= esa dfFkr rF; lkfcr gSa ;k lkfcr ugha & iqujh{k.k esa gLr{ksi visf{kr ughaA 1994 ts ,y ts 521] 1994¼1½ e-iz- ohDyh uksV~l 113] 2012¼2½ e-iz- ohDYkh uksV~l 65] ¼2012½ 0 lqizhe ¼mM+hlk½ 273] ¼2014½4 lh th ,y ts 23 ¼,l lh½] ¼1995½2 ,l lh lh 630] ¼1997½11 ,l lh lh 714 rFkk ¼1995½4 ,l lh lh 572 foosfprA ¼iSjk 9
(1) Civil P.C., 1908 -- S.54, O.20 R.18, O.7 R.11 and S.115 -- Benami Transactions (Prohibition) Act, 1988 -- Ss.3 and 4 -- suit for partition, possession and permanent injunction -- property purchased in name of his wife -- suit filed by one daughter for her 1/4th share -- application under Order 7 rule 11 filed by defendant No.1 that suit is barred by provisions of sections 3 and 4 of Act of 1988 -- such application rightly dismissed -- for purpose of application under Order 7 rule 11 -- only averments made in plaint to be seen -- from averments made in plaint -- transaction was saved by section 3(2) of Act -- applicability of provisions of Act of 1988 -- can be seen only when facts stated in plaint are proved or not proved -- no interference called for in revision. [Para 9
(2) Benami Transactions (Prohibition) Act, 1988 -- Ss.3 and 4 -- applicability of provisions -- property purchased in name of his wife -- suit filed by one daughter for partition, possession and permanent injunction for her 1/4th share -- application under Order 7 rule 11 of CPC that suit is barred under provisions of Act of 1988 -- application dismissed -- for purpose of application under Order 7 rule 11 -- only averments made in plaint to be seen -- applicability of provisions of Act of 1988 -- can be seen only when facts stated in plaint are proved or not proved -- no interference called for in revision. 1994 JLJ 521, 1994(1) MPWN 113, 2012(II) MPWN 65, (2012)0 Supreme (Ori) 273, (2014)4 CGLJ 23 (SC), (1995)2 SCC 630, (1997)11 SCC 714 and (1995)4 SCC 572 discussed. [Para 9
1. This civil revision is directed against the order passed by the 2nd Civil Judge, Class-I, Dewas in Civil Suit No.6-A/2015 dated 4.1.2016 whereby the learned Civil Judge dismissed an application filed under Order 7 rule 11 CPC filed by the applicant, who is defendant No.1 before the lower Court.
2. The brief facts relevant for disposal of this civil revision are that the non-applicant No.1 filed a suit for partition, possession and permanent injunction against the present applicant and also against non-applicant No.2-Smt. Durga Bai and non-applicants No.3 and 4 - Pradeep Singh and Navin Singh. According to non-applicant No.1/plaintiff, the suit property was purchased by her father Late Popesingh, who was working as an employee of Standard Mill Balgarh, Dewas. From his self earned income, the property was purchased in the name of the present applicant/defendant No.1, who is mother of the plaintiff/non-applicant No.1. According to the plaintiff, her father used to care for her mother, and therefore, the property was purchased in her name though she had no source of independent income at the relevant time when the property was purchased. Non-applicant No.2 is sister of non-applicant No.1/plaintiff and non-applicants No.3 and 4 are sons of Late Gitabai, who was third daughter of Late Popesingh and applicant- Kasturibai. According to plaintiff, she had 1/4th share in the suit property and accordingly she claimed partition, possession and permanent injunction against the defendants.
3. The applicant filed an application under Order 7 rule 11 of CPC before the trial Court on two grounds:- (i) that transaction is covered by a Benami Transactions (Prohibition) Act, 1988 and (ii) section 3(1) and section 4(1) bar such suit, and therefore, suit is not maintainable.
4. It is further submitted though the property was purchased way back 30.5.1975 by a registered sale deed, and therefore, this suit is barred by limitation. Accordingly, it is prayed that the impugned order be set aside. The application filed by the applicant be allowed and the plaint filed by the non-applicant No.1 be rejected under Order 7 rule 11(a) and (b) of CPC.
5. Learned counsel appearing for non-applicant No.1, however, supports the order passed by the learned Civil Judge and prays that the same may be confirmed.
6. Sections 3 and 4 of Benami Transactions (Prohibition) Act, 1988 may be reproduced below for convenience :-
“3. Prohibition of benami transactions.-(1) No person shall enter into any benami transaction.
(2) Nothing in sub-section (1) shall apply to -
(a) 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;
(b) the securities held by a -
(i) depository as registered owner under sub-section (1) of section 10 of the Depositories Act, 1996,
(ii) participant as an agent of a depository.
Explanation.- The expressions “depository” and “Participants shall have the meanings respectively assigned to them in clauses (e) and (g) of sub-section (1) of section 2 of the Depositories Act, 1996.
(3) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under this section shall be non-cognizable and bailable.
4. Prohibition of the right to recover property held benami.- (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or ag
