A fiduciary relationship can exempt transactions from being classified as benami, but must be proven with evidence; dismissal under Order VII, Rule 11 requires clear grounds.

O R D E R

Dated this the 27th day of November, 2023 Defendants in O.S.No.336/2022 pending before the Munsiff Court, Pathanamthitta, are the revision petitioners herein. They are aggrieved by an order dated 15.10.2022 of the learned Munsiff in I.A.No.4/2022, which dismissed the defendants' application under Order VII, Rule 11 of C.P.C.

seeking rejection of the plaint.

2. Heard Sri.Manu Ramachandran, learned counsel for the petitioners and Sri.S.Sreekumar, learned senior counsel, instructed by Arun B. Varghese, on behalf of the respondents.

3. Learned counsel for the petitioners submitted that the instant suit is hit by Section 4 of the Prohibition of Benami Property Transactions Act, 1988 (the Act, for short) as also, by the provisions of the Limitation Act. In elaboration, learned counsel invited the attention of this Court to to point out that the transaction which has been pleaded in the plaint is nothing, but one which falls within the teeth of and such a suit is clearly barred, inviting the wrath of Order VII Rule 11 of C.P.C. On the question of limitation, learned counsel pointed out that the transaction in question was of the year 1994 and a declaration of title in respect of the said property, is sought for only in the year 2022, wherefore, the claim is hopelessly barred. In this regard, learned counsel invited the attention of this Court to the relief sought for in the plaint, which is for a declaration that the objectionable sale deeds of the year 1994 are benami in character and that the

1st defendant has no right, title or interest over plaint schedule item no.2 property. It was also submitted by the learned counsel that, the plaintiffs cleverly avoided pleading the dates on which they have made requests to convey the property in their favour. Clever drafting, to hush up the bar of limitation or to create the illusion of a cause of action, was frowned upon by the Hon'ble Supreme Court way back in 1977 in P. Arivandanandam v. T.V. Satyapal & another [1977 (4) SCC 467]. According to the learned counsel, it is the bounden duty of an activist Judge to nip at the bud, a suit which creates the illusion of a cause of action by clever drafting.

4. Per contra, the learned Senior counsel would submit that a perusal of the plaint pleadings reveal a clear fiduciary relationship between the plaintiffs and the 1st defendant, the 1st defendant being an employee under the plaintiffs until 2001. Pleadings are also to the effect that even after 2001, the 1st defendant continued to be a confidant of the 1st plaintiff. According to the learned senior counsel, the confidence was shaken only, when they received a caveat lodged by the 2nd defendant, to whom item no.2 property was transferred by the 1st defendant. As regards the demands for re-conveyance, it is specifically pleaded in paragraph no.7 of the plaint that such demand for re-conveyance was never refused by the defendant, but was only sought to be adjourned for personal convenience, or for that matter, inconvenience, wherefore, there existed no situation for the plaintiffs to doubt the 1st defendant's allegiance. On law, learned senior counsel pressed into service the decision of the Hon'ble Supreme Court in Marcel Martin v. M. Printer and Others [ 2012 (5) SCC 342 ]. After inviting the attention of this Court to paragraph nos. 15,16,17,18, 19 & 20, learned Senior Counsel emphasised on paragraph nos.21 & 22 to point out that, fiduciary capacity extends to all situations, where the parties are founded on confidence and trust on one part and good faith on the other. Thus reckoned, the relationship between the plaintiffs and the 1st defendant herein was nothing, but one in fiduciary capacity, wherefore, it is quite permissible for the plaintiffs to lay the instant suit, uninfluenced by the bar under Section 4 of the Act. As answer to of the Prohibition of Benami Property Transactions Act, learned counsel invited the attention of this Court to Section 2 (9), which defines a 'bena