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2020 (3) TMI 1107 - HC - Benami PropertyBenami Transactions - Whether the sale consideration was paid by the respondent alone? - respondent was father-in-law of the applicant. Applicant and son of the respondent namely Neeraj Kumar were husband and wife. Due to some dispute between them, decree of divorce has been granted in favour of the applicant. Before passing of the decree of divorce a sale deed was executed in favour of the applicant and respondent by which they purchased suit property - HELD THAT:- Since issue whether the property in dispute was purchased as benami transactions and at the time of said purchase what was intention of buyers actual or name lender, can be decided only after considering merits of respective claims of parties on the basis of their evidence. Hence only on basis of Section 4 of Act, entire suit cannot be allowed to fall at preliminary stage. [See also Mridula Singh vs. Brahmdeo Pd. Singh [2005 (9) TMI 684 - PATNA HIGH COURT] Whether the provisions of Section 4(3)(a) of the Benami Transactions (Prohibition Act), 1988 would be applicable to daughter-in-law, since she is not coparcener in Hindu undivided family? - As observed that while considering exemption under Section 4 in respect of Benami Transactions, the existence of fiduciary capacity has to be determined in circumstances of individual cases. In the aforesaid case, it has also been observed that since the daughter-in-law was not holding the property in fiduciary capacity, the prohibition enshrined under Section 4 would apply and the suit for possession at the instance of daughter-in-law would be maintainable. In juxtaposition with the law laid down in the case of Mridula Singh (Supra), there cannot be any iota of doubt that issue regarding maintainability of the counter claim can be well adjudicated by the trial Court by framing an issue on the basis of the evidence led by the parties in respect of Benami Transactions. Thus, this Court comes to the conclusion that there is no illegality or perversity in the impugned order warranting interference of this Court in exercise of its revisional jurisdiction.
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