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2021 (10) TMI 125 - CHHATTISGARH HIGH COURTSuit maintainable under the provisions of Benami Transactions (Prohibition) Act, 1988 - Whether suit barred under Section 4(1) of the Benami Act, 1988?- HELD THAT:- The suit property was in possession of late Hariprasad Agrawal until his death, therefore, Savitri Devi was a benami holder of the property. There is no such pleading in the plaint that the suit property was purchased for the benefit and improvement of Joint Hindu family property. In fact, there is no mention of the Joint Hindu family property in the whole plaint. Neither there is any mention of Hindu undivided family nor the joint property of such undivided family. In this circumstance, the absence of such pleadings, which are the requirement under sub-section (3) of Section 4 of the Act, 1988, for the maintainability of the suit as an exception to the provision under Section 4(1) of the Act, 1988, is totally missing. The prayer under Order VII Rule 11 of the CPC for rejection of plaint has to be considered only on the basis of the plaint averments and nothing else. The plaint averments as disclosed herein-above clearly shows that nothing has been pleaded to show that the suit property was held by Savitri Devi as coparcener of a Hindu undivided family and the same was for the benefit of all the coparceners of the Joint Hindu family. This being the position on the basis of the facts and pleadings in the plaint, there is no material to draw conclusion that the suit filed by the respondents is covered under the exception as provided under Section 4 (3) of the Act, 1988. This being the conclusion, the suit filed by the respondents appears to be clearly barred under Section 4(1) of the Benami Act, 1988 and in such a case the plaint of the respondents is liable to be rejected under Order VII Rule 11(d) of the CPC. As held that the impugned order passed by the learned trial Court is erroneous and unsustainable, therefore, the same is set aside. The application of the petitioners under Order VII Rule 11 of the CPC is allowed.
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