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2020 (9) TMI 720 - HC - Benami PropertySuit for partition - whether suit is barred under the provisions of Benami Transactions (Prohibition) Act 1988? - one Gopal Pillai is the father of the 1st respondent and the 8th respondent who purchased the property in the name of the 8th respondent and after the death of Gopal Pillai, the 1st defendant/8th respondent sold the suit property through Power of Attorney to the petitioners herein and therefore, respondents 1 to 7 herein/plaintiffs filed the suit for partition and also seeking to declare the sale deed in favour of the petitioners herein and Power of Attorney as null and void HELD THAT:- Gopal pillai is the father of 1st and 8th respondents. While Gopal pillai was working in Food Corporation of India at Madras Harbour, at that time, he purchased the property in the name of the 8th respondent. At that time, the age of the 8th respondent is only 19 years and studying in the school. For the sake of investment, the said property was acquired by Gopal pillai in the name of 8th respondent and the said property was in the possession of Gopal Pillai. After the death of Gopal Pillai dated 20.03.1994, taking advantage of the same, in the year 2001, 8th respondent has executed General Power of Attorney in favour of the 9th respondent herein and sold the property in the name of the petitioners. Therefore, the 1st respondent came to knowledge of the sale deed on 30.03.2004 and after that the respondents 1 & 2/plaintiffs applied for the certified copy of sale deeds and thereafter, they filed the suit. Admittedly, in this case, the 1st respondent/plaintiff in his plaint has stated that 1st and 8th respondents are coparcener and the sons of Gopal Pillai who purchased the property out of his funds in the name of the 8th respondent. So, Gopal Pillai, was in possession of the property. After the death of Gopal Pillai, without the knowledge of the 1st respondent, 8th respondent executed General Power of Attorney in the name of the 9th respondent. 9th respondent sold the property to the petitioners. So the issues raised herein that (i) as to whether the property is purchased by Gopal Pillai in the name of the 8th respondent out of his funds; if so at the time of purchase, whether the 8th respondent has got the means to purchase the property and (iii) as to whether Gopal Pillai has purchased the property in the fiduciary capacity or the purchase of property alleged to have been made by Gopal Pillai in the name of the 8th respondent is hit by Benami Transactions (Prohibition) Act, are all points can be decided only after recording evidence in the suit. Time and again, the Honourable Supreme Court and this Court have reiterated that at the time of deciding the application under Order 7 Rule 11, of CPC, the court has to see only the averments made in the Plaint not the defence taken by the defendants in the case. The facts of this case are peculiar in nature and therefore, that has got to be decided only after trial and not at this stage. Therefore, at these circumstances, this court does not find any merit in the Revision and therefore, the Revision is liable to be dismissed.
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