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TMI Blog2019 (10) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... ory injunction directing the defendant to handover the original Sale Deed of the said property; and (iii) permanent injunction restraining the defendant from parting with possession of the Sale Deed or creating any third party interest in the property. 4. The plaintiff, in the plaint itself has admitted that as per the title documents with respect to the aforesaid property, the property is in the joint names of the plaintiff and the defendant. 5. I have thus enquired from the senior counsel for the plaintiff, whether not the claim in the suit, insofar as of declaration, is barred by the Prohibition of Benami Property Transactions Act, 1988. 6. The senior counsel for the plaintiff draws attention to Section 2(9)(A)(iii) of the said Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said paragraph nor elsewhere in the plaint is there any averment, of the property having been bought out of the known sources of the plaintiff. In fact, the plaintiff has not even pleaded his income of the year in which the property was purchased. Though under Section 3(2)(a) of the Act as it earlier existed, the provisions of the Act did not apply where the property was proved to be for the benefit of the wife but the legislature having made the change aforesaid, for a plaintiff to be entitled to make a claim in contravention of the law, it is essential for the plaintiff to make a specific plea, of the consideration of the property having been provided out of the known sources of the plaintiff. 10. The legislature has sought to balance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mi by an individual in the income tax returns, a plea of benami can be entertained. 16. Though the senior counsel for the plaintiff has also contended that the defendant, on the basis of the plaintiff also being a 50% owner of the property, be at least restrained from dealing with the property but till there is a proper plaint before this Court and till the plaintiff takes a categorical stand with respect to benami, it is not deemed appropriate to entertain the suit. 17. The senior counsel for the plaintiff, under instructions, gives up the relief claimed of declaration and confines the suit to that for prohibitory and mandatory injunction only. 18. Subject to the aforesaid, the suit is entertained. 19. Issue summons of the suit and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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