Home Case Index All Cases Benami Property Benami Property + HC Benami Property - 2019 (11) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (11) TMI 1789 - DELHI HIGH COURTBenami 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.
|