TMI Blog2009 (7) TMI 1355X X X X Extracts X X X X X X X X Extracts X X X X ..... in shall be referred to as the plaintiffs. 2. The plaintiffs and the defendants are related to each other. Suit filed by the plaintiffs is for partition and permanent injunction wherein decree of partition in respect of the property known as 6, Cavalry Lines, Mall road, Delhi, has been sought. It is stated that all the plaintiffs and the defendants, who are 10 in number, have 1/10th share each in the said property. The relationship between the parties, as disclosed in the plaint, is as under:- 3. Decree for permanent injunction is also prayed for seeking restraint against the defendant No.1 from selling, alienating, disposing or otherwise creating third party interest in the said property (hereinafter referred to as 'the suit property'). Since we are concerned with the decision on the application under Order VII Rule 11 CPC and at this stage only averments in the plaint are to be looked into and examined, we may take note of those averments only. The learned Single Judge in his impugned order has made reference to these averments contained in the plaint. Without any fear of contradiction we can take note of those averments as they appear in the impugned order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the defendant No.1 under Order VII Rule 11 CPC it was stated that even as per the averments made in the plaint case was founded on the basis that there was an HUF of Late Sardar Succha Singh Anand and the property in question was purchased by him from his funds and also money is contributed by the plaintiff No.3 (third wife of Late Sardar Succha Singh Anand). Therefore, even when if property was purchased in the name of defendant No.1, it was purchased as a joint family property and for the benefit of its members. It was also pleaded in the plaint that he was the trustee of the suit property in his hands. Submission was that neither the case of joint family property set up by the plaintiffs was sustainable in law nor the plea of trustee maintainable in law even on the basis of averments made in the plaint. According to him, the case pleaded in essence was that the defendant No.1 was the Benami owner of the suit property and such a suit was barred by the provisions of Benami Transactions (Prohibition) Act, 1988 (in short 'the Benami Act'), inasmuch as the plaintiffs could not bring out the case within the two exceptions, i.e., (i) the property is owned by a coparcener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding of evidence by the parties. Being a question of fact it cannot form the basis for rejection of plaint under Order VII Rule 11 CPC. The averments in the plaint set up a case which is squarely covered by the exception provided under clause (a) and (b) of Sub-section (3) of Section 4 of Benami Act. 10. The Impugned Order The learned Single Judge, after delineating the scope of the application under Order VII Rule 11 CPC and referring to Section 2A of the Benami Act, which defines Benami transaction as well as Section 4 of the said Act, which creates prohibition of the right to recover the property held Benami, proceeded on the premise that since suit property was in the name of defendant No.1, case put forth by the plaintiffs was that of a Benami transaction. However, there are certain exceptions to the principle of law mentioned in Section 4 of the Benami Act, as provided in sub-section (3) of Section 4 itself, which are as under:- (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the corparceners in the family; or (b) where a person in whose name the property is held is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of defendant No. in respect of the suit property was a sham and was done with the intention to treat the suit property as joint family property while defendant No.1 holding the suit property as trustee for all the family members in order to maintain harmony. It is submitted that had any other major son of Late Sardar Sucha Singh Anand was available at that particular point of time, conveyance deed would have been executed also in the name of such other son(s) jointly with defendant No.1. 16. In para 21 it is stated that It is submitted that right from the date of purchase of the suit property till the date of filing of the present suit there was/is no controversy, at all, with regard to the status of suit property that the same is joint family property and that defendant No.1 has been holding the suit property as the nominee and trustee of Late Sardar Sucha Singh Anand, Plaintiff No.3 and entire family members. It is submitted that entitlement of the legal heirs of Late Sardar Sucha Singh Anand as co-owners of the suit property was neither denied nor disputed at any time, by any person including defendant No.1, either during the life time of Late Sardar Sucha Singh Ana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged to be coparcenary property and issue/relief is only for declaration of a share by a co-parcener. This matter also therefore cannot be decided without leading of evidence. The plaintiff have already filed a separate suit being CS(OS) No.1791/2006 to challenge the title of the transferees from defendant No.1. 13. Mr. Sunil Gupta, learned Senior Advocate, who appeared on behalf of the defendant No.1 made a fervent plea for setting aside the impugned order and allowing the application of the defendant No.1 filed under Order VII Rule 11 CPC contending that the learned Single Judge had not decided the said application in correct perspective. Mr. Ravi Gupta, who appeared for the appellants in other appeal, supported the cause advanced by the defendant No.1 submitting that neither the case of an HUF nor that of a trustee established even from the bare reading of the averments made. In this behalf it was argued that first exception carved out by clause (a) to sub- section (3) to Section 4 of the Benami Act categorically states that the property should be held by persons as coparcener in a Hindu Undivided Family and for the benefit of coparceners in the family . On this basis subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . CED v. Alladi Kuppuswamy, (1977) 3 SCC 385. v. Hindu Law Mulla 15th Ed. (1982). vi. Hindu Law Mulla 15th Ed. (2007). vii. Ramesh Chand v. Tekchand, 115 (2004) DLT 193. After reading various paras in the plaint the learned counsel pointed out that these pleadings lacked the following:- a) COPARCENERY IN HUF: 'Coparcenary in HUF' and not merely HUF is required by S.4(3)(a). Benefit pleaded in the plaint is not of coparcenary, but of the general and broad joint family, including females etc. This could be simply moral or ethical burden of defendant No. 1 but not the legal obligation of Defendant No. 1 as a coparcener for the benefit of and towards other coparceners.' b) FUNDS - Source Far from ancestral funds being pleaded as the source of the funds, the avowed case of the plaintiff is that the suit property was purchased by SSA and his 3rd wife from their 'own funds'. c) NUCLEUS Presumption of Joint Family (normal state) does not mean presumption of there being also Joint family property. No 'nucleus of Joint family or HUF property' pleaded in plaint: No such lis. Mayne, Hindu Law Usage, 16th Ed. (2008) pp. 7445-746. Sri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anifest was even acted upon all these years as the property was enjoyed by other siblings/relations of defendant No.1. Therefore, defendant No.1 was holding the said property only in a fiduciary capacity. He referred to the provisions of Section 41 of the Transfer of Property Act and the following judgments in support of his case:- 1) Laxman Sakharam Salvi and others v. Balkrishna Balvant Ghatage, AIR 1995 Bombay 190. 2) Rajinder Prashad Malik v. Shanti Devi Malik and other, AIR 2003 P H 29. 3) V. Shankaranarayana Rao (D) by LRs Ors. v. Leelavathy (D) by LRs Ors., AIR 2007 SC 2637. 4) Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S. Shah, JT 1996 (4) SC 725. 19. We have given our utmost consideration to the respective submissions of the counsel and the parties on both sides. 20. In the present case we are concerned with the application moved by the appellant herein in the suit under Order VII Rule 11 of the CPC. Therefore, the scope and ambit of such a provision has to be kept in mind and the Court is to proceed taking into consideration its limited power and jurisdiction while dealing with the prayer made in such an application for rejection of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the pleadings are incorporated, to the following effect :- (i) Property was purchased in the name of defendant No.1 as nominee of the purchasers for the benefit of all the members of the family. (ii) The property was purchased by late Sardar Sucha Singh out of his funds, along with funds contributed by plaintiff No.3 (his third wife) as a Joint Hindu Property. (iii) The property has been in possession and enjoyment of the entire family all throughout. (iv) Defendant No.1 has held the property, for the benefit of all, as a trustee of entire family members. (v) Registration of Conveyance Deed dated 1.11.1961 was made in the name of the defendant No.1 as he was in Delhi at that time living with his father and other brothers, including plaintiff No.1, were not in Delhi. (vi) Right from the date of purchase of the suit property till the date of filing of the suit, there was no controversy at all with regard to the status of the suit property that the same is a Joint Family Property. (vii) Entitlement of legal heirs of late Sardar Sucha Singh Anand as co- owners of the suit property was neither denied nor disputed at any time by any person, including the defend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatute the jurisdiction of the court is restricted to ascertaining whether on the allegations a cause of action is shown. In Vijai Pratap Singh v. Dukh Haran Nath Singh AIR 1962 SC 941 the Supreme Court held: (AIR pp.943-44, para 9) By the express terms of Rule 5 Clause (d), the court is concerned to ascertain whether the allegations made in the petition show a cause of action. The court has not to see whether the claim made by the petitioner is likely to succeed: it has merely to satisfy itself that the allegations made in the petition, if accepted as true, would entitle the petitioner to the relief he claims. If accepting those allegations as true no case is made out for granting relief no cause of action would be shown and the petition must be rejected. But in ascertaining whether the petition shows a cause of action the court does not enter upon a trial of the issues affecting the merits of the claim made by the petitioner. It cannot take into consideration the defenses which the defendant may raise upon the merits; nor is the court competent to make an elaborate enquiry into doubtful or complicated questions of law or fact. If the allegations in the petition, prima facie, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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