D/L.4.

September 25, 2025.

MNS.

CO No. 363 of 2024

Sri Swapan Das

Vs.

Sri Tapan Das and another

Mr. Anirban Kar,

Mr. Munshi Ashiq Elahi,

Mr. Rohit Mahato

… for the petitioner.

Mr. Animesh Paul,

Ms. Krity Keshri,

Ms. Manisha K. Upadhaya

…for the opposite party no. 1.

1. The present challenge has been preferred

against an order whereby an application of the defendant/petitioner under Order VII Rule 11 of the Code of Civil Procedure (Code) was rejected by the learned Trial Judge on the ground that mixed questions

of law and fact are involved.

2. The brief facts of the case are that a suit

for declaration of title and for permanent injunction has been instituted by the

plaintiff/opposite party no. 1.

3. In paragraph no. 2 of the plaint, it has

been claimed that the property mentioned in the Schedule-A (with regard to which the

declaration has been sought) belonged to Horibol Pal, Padmavati Pal, Shyamali Chakraborty and Piyali Bhattacharyya and they intended to sell the property mentioned in Schedule-A and that the plaintiff, from his own fund, purchased the Schedule-A property. It has further been stated in paragraph no. 2 that the plaintiff at that time was a bachelor and he thought if after marriage, the proposed wife of the plaintiff does not accept the other brothers of the plaintiff, namely, Sandip and Swapan (the proforma defendant and the defendant no. 1 in the suit respectively) and to keep a good relationship in the family and to please his mother, he purchased the Schedule-B property in the name of the proforma defendant.

4. It is also averred in paragraph no. 2 that at the said time, the defendant no. 1 and the proforma defendant had no financial capacity to purchase the property in their names.

5. In paragraph no. 6 of the plaint, it has been alleged by the plaintiff / opposite party no. 1 that the defendant no.1 / petitioner started divulging after twenty-nine years that he is the absolute owner of Schedule- A property and he will transfer the Schedule-A property to another person. Again, in paragraph no. 8 of the plaint, it is alleged that the plaintiff asked the defendant no. 1 / petitioner what was the reason for the “drama” and stated that the defendant no. 1 / petitioner is not the absolute owner of the Schedule-A property, rather, he is a name lender.

6. The principal relief sought in the suit is a declaration that the plaintiff is the absolute owner in respect of Schedule-A property, having sixteen annas right, title and interest and possession thereof, and that the defendant no. 1 is the mere name lender and by virtue of sale deed no. 1034/1993, the defendant no. 1 did not acquire any right, title or interest therein.

7. Thus, it is ex facie evident from the aforesaid paragraphs in the plaint as well as the principal relief sought therein that the plinth of the plaint case is that the plaintiff is the real owner of the Schedule „A‟ property (regarding which declaration has been sought) and the defendant no. 1 / petitioner is a mere name lender or, in other words, a Benamdar. Hence, the suit is categorically barred under Section 4 of the Prohibition of Benami Property Transactions Act, 1988 (hereinafter referred to as “the 1988 Act”).

8. Sub-section (1) of Section 4 of the said Act provides that 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.

9. Learned counsel for the plaintiff/opposite party no. 1 seeks to rely on Section 2(9)(A)((b)(ii) of the 1988 Act to argue that where a person standing in a fiduciary capacity for the benefit of another person towards whom he stands in such capacity holds the property, it forms an exception to the definition of „ benami transactions‟.

10. It is argued that since the plaintiff and the defendant no. 1 were bachelors at the relevant point of time and in fiduciary relation with each other, the bar un