1993 Supreme(MP) 720

Faizanuddin, Ag. CJ and R.C. Lahoti, J.
Uma Gupta (Smt.) v. Smt. Susheela
FA. No. 144 of 1991 (J); Decided on 20.11.1993*.

Headnote:(1) Benami Transactions (Prohibition) Act, 1988 -- S. 4 -- suit to obtain declaratory decree that defendant is only Benamidar while plaintiff is real owner -- cannot be filed -- plaint is liable to be rejected.

        (2) Civil P.C., 1908 -- O. 7 R. 11 (d) -- suit against provision of an enactment• -- cannot be entertained -- rejection of plaint is proper.

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        The plaintiff, Smt. Uma Gupta (appellant herein) and Smt. Susheela, the defendant No.1, are co-sisters. The suit property consists of land survey No. 132½ situated at Khajrana, Indore. The case of the plaintiff, as set out in the• plaint, is that the suit property was purchased by her under a registered deed Of sale dated 16.2.1973 for a consideration of Rs. 6,000/-. However, the sale deed was drawn up in the name of the defendant No. 1. The defendant No.1, taking advantage of her ostensible ownership, entered into an agreement of sale in favour of Balkrishna, the defendant No.2, on the basis of which agreement a suit for specific performance has also been filed by the defendant No.2.

        It would be useful to notice in bit little details a few relevant averments made . in the plaint which are as under:

        "The plaintiff acceded to this request of the defendant No. 1 and purchased this property Benami in the name of the defendant No.1" (para 4).

        "The defendant No.2 knows fully well that the plaintiff is the real owner of the property as has its possession also while the defendant No.1 is merely the Benami owners. " (para 10).

        "A decree of declaration be granted declaring the plaintiff to be the owner of the and bearing survey No. 132½ Khajrana, Indore" (prayer).

        Held: From the several plaint averments, noticed hereinabove, it is clearly spelt out that the plaintiff was pleading herself to be the real owner and the defendant No. 1 to be the Benami holder. The suit, on its face, is a right to recovery property held Benami and hence falls within the prohibition enacted by section 4 of the Benami Act. On the SL:1tement made in the plaint, the suit is barred by a SL:1tute i.e. the Benami Act.

        It may also be stated that the plaintiff having realised the existence of hurdle in her way, had made are abortive attempt at escaping from the consequences of the Benami Act. On 17.11.1988, she had moved an application under Order 6 Rule 17 C.P.C. seeking amendment of the plaintiff so as to plead that the suit property was joint Hindu family property of the H.U.F. consisting of several persons including the plaintiff and the defendant No. 1 and in an oral partition effected on 6.10.1992, the suit property had fallen to the share of her husband Subhash Chandra. Subhash Chandra was also sought to be joined as plaintiff No. 2 in the suit. The application for amendment was rejected by the trial Court on the ground that it would change the cause of action and introduce an entirely different case. The plaintiff came up to this Court in C.R. No. 205/89. By order dated 30.8.1989 this Court rejected the revision upholding the order of the trial Court.

        No fault can be found with the view taken by the trial Court. The appeal is held devoid of any merit and liable to be dismissed. It is dismissed accordingly. The order of the trial Court rejecting the plaint under Order 7 Rule 11 (d) C.P.C. is upheld. AIR 1989 SC 1247 followed. Appeal dismissed.