Home Case Index All Cases Benami Property Benami Property + HC Benami Property - 2023 (5) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (5) TMI 267 - PATNA HIGH COURTHindu Undivided Family - Rejection of plaint under Order VII Rule 11 D of the Code of Civil Procedure - rejection of plaint sought on the ground that from plain reading of the plaint, it will appear that the suit property is purchased in the name of defendant, namely, Anpurna Devi (original petitioner), the suit is barred by the provision of Benami Transactions (Prohibition) Act, 1988 as well as barred under Hindu Law and the plaintiffs have got no cause of action. HELD THAT:- Sub-section 3 of Section 4 will not be applicable where the person in whose name the property is held is co-parcener in any Hindu Undivided Family and property is held for the bona fide of the co-parceners in the family. It is the case of the defendant that she was also a co-parcener. It is settled principle of law that a female member is never considered as co-parcener in a Hindu Undivided Family. In the case of NAND KISHORE MEHRA VERSUS SUSHILA MEHRA [1995 (7) TMI 64 - SUPREME COURT], the Hon’ble Supreme Court has held that if the property is standing in the name of wife, the provision under Section 4 will not be applicable because it is saved under Section 3 of the said Act. However, it may be mentioned that the claim of the plaintiffs is that the property is the joint family acquisition. In view of the aforesaid settled principle of law, even after the property is purchased by the husband in the name of the wife the onus/burden is on the husband to draw that the property was purchased not for the benefit of the wife. Further, the question whether the property is self-acquired property or joint family property is purely a question of fact and that cannot be agitated in Order VII Rule 11 of the Code of Civil Procedure. The plaintiffs have asserted for permanent injunction for restraining the defendant from alienating the suit property especially by defendant, namely, Anpurna Devi (original petitioner). It is, therefore, obvious that the plaint could not have been rejected as prayed by the defendant under the provision of Order VII Rule 11 of the Code of Civil Procedure especially with regard to first relief regarding the declaration of joint family property. This Court, therefore, does not find that the lower Court below has committed error of jurisdiction and illegality in passing the impugned order - this Civil Revision application is dismissed.
|