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2019 (11) TMI 1789 - HC - Benami PropertyBenami transaction - suit, claim or action to enforce any right in respect of any property held benami against the person - Suit for partition filed by the respondent (now deceased) and represented by the present respondents as the legal heirs - As contented since the properties were in the name of the petitioners, no Suit for partition could lie and Suit is barred under Section 4 of the Benami Transactions (Prohibition) Act, 1988 as there was neither a Hindu undivided family nor HUF funds. HELD THAT - Respondent/Plaintiff had failed to even make an averment, leave alone prima facie substantiating, that there was any HUF ever created or in existence or continued and the properties subject matter of the Suit were purchased out of such HUF funds. From the bare reading of the plaint, it is apparent that the claim set up in the plaint is barred by Section 4 sub-section (1) of the Benami Transactions (Prohibition) Act, 1988. Trial court has erred in dismissing the application under Order 7 Rule 11 CPC solely on the ground that an issue has been framed and it would be a matter of trial as to whether the property is individual property or has been purchased by the joint family funds. Since there is no averment that there was any Hindu Undivided Family in existence and the properties were purchased out of Hindu Undivided Family, no evidence can be permitted to be led by the Plaintiffs on the said aspect. In the absence of pleadings to the said effect, no evidence can be led. An application filed by the Respondents/plaintiff under Order 6 Rule 17 CPC to specifically plead existence of Hindu Undivided Family was rejected by the Trial Court by order dated 22.09.2017 and no appeal was filed impugning the order dismissing the application for amendment. Suit appears from the statement in the Plaint to be barred by the Benami Transactions (Prohibition) Act, 1988.
Issues Involved:
1. Dismissal of the application under Order 7 Rule 11 CPC. 2. Partition of properties. 3. Applicability of the Benami Transactions (Prohibition) Act, 1988. 4. Existence of Hindu Undivided Family (HUF). 5. Application under Order 6 Rule 17 CPC. Detailed Analysis: 1. Dismissal of the application under Order 7 Rule 11 CPC: The petitioner challenged the order dated 22.09.2017, which dismissed their application under Order 7 Rule 11 CPC. The application contended that the suit for partition was filed concerning properties exclusively owned and possessed by Shri Surender Singh Kalsi and his wife, the petitioner No. 2. The court found that the trial court erred in dismissing the application solely on the ground that an issue had been framed and it would be a matter of trial to determine the nature of the property. The court emphasized that since there were no averments of a Hindu Undivided Family (HUF) or properties purchased out of HUF funds, no evidence could be led on this aspect. Consequently, the suit was barred by Section 4(1) of the Benami Transactions (Prohibition) Act, 1988. 2. Partition of properties: The respondent had filed a suit for partition of property No. U-2, Hans Apartment, East Arjun Nagar, Delhi, and the family business premises at 2/122, Nakul Gali, Vishwas Nagar, Shahdara, Delhi. The petitioners argued that these properties were exclusively owned by Shri Surender Singh Kalsi and his wife. The court noted that the plaintiff's case was that the properties were purchased in the name of Shri Surender Singh Kalsi and his wife due to familial love and financial assistance provided by the plaintiff and his other son, Shri Mahender Singh. However, the court found no basis for a partition suit as the properties were not part of a joint family estate. 3. Applicability of the Benami Transactions (Prohibition) Act, 1988: The court examined the applicability of the Benami Transactions (Prohibition) Act, 1988, as it stood before its 2016 amendment. Section 4(1) of the Act prohibits any suit to enforce a right in respect of any property held benami. The court found that the suit was barred under this provision as the properties were held in the names of Shri Surender Singh Kalsi and his wife, and there was no claim of them being held in a fiduciary capacity or as part of a HUF. 4. Existence of Hindu Undivided Family (HUF): The petitioners contended that the suit was barred as there was no Hindu Undivided Family (HUF) or HUF funds involved. The court noted that the plaintiff had not made any averments about the existence or creation of a HUF or that the properties were purchased out of HUF funds. The court cited a coordinate bench's decision in 'Surender Kumar Khurana Vs. Tilak Raj Khurana & Ors.,' which held that joint funds or properties are not equivalent to HUF properties. Therefore, the plaintiff's claim did not fall under the exceptions provided in Section 4(3) of the Benami Transactions (Prohibition) Act, 1988. 5. Application under Order 6 Rule 17 CPC: The respondents had filed an application under Order 6 Rule 17 CPC to amend the plaint to include a plea of the existence of a HUF. This application was dismissed by the trial court, and no appeal was filed against this dismissal. The court highlighted that without pleadings about the existence of a HUF, no evidence could be led on this aspect. The dismissal of the amendment application further weakened the plaintiff's case. Conclusion: The court set aside the impugned order dated 22.09.2017, allowed the application under Order 7 Rule 11 CPC, and rejected the plaint under Order 7 Rule 11(d) CPC. The revision petition was allowed, and the suit was found to be barred by the Benami Transactions (Prohibition) Act, 1988. The order was issued dasti under the signatures of the Court Master.
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