9911796707
TMI Blog2020 (3) TMI 1107X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 namely shop Nos.6 & 7 situated at House No.1582 and 1582/1, Civil Station, Nazul Block No.5, Plot No.18/3, Jain Tower, Swami Dayanand Saraswati Ward, Jabalpur (M.P.) in the joint name of applicant and respondent. Subsequently, the said property was mutated in the joint names of the parties vide order dated 11.07.2014. 3. The applicant has alleged that earlier the said property was in joint possession of both the parties. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the trial is at a preliminary stage and the issue raised by the applicant can be decided only after the evidence is led. 7. The applicant challenging the impugned order on the grounds that the learned trial Court without considering the provision of Benami Transactions Act and bar contained in the said Act has dismissed the application under Order 7 Rule 11 (d) of C.P.C. For this no evidence was required to be led. The Apex Court also held that a suit or counter claim containing plea of Benami Transactions should not be tried. It is also alleged by the applicant that the trial Court has failed to follow the binding precedents. Hence, she prayed to set aside the impugned order and that counter claim filed by the respondent be dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mi transaction the real owner for whose interest the land is being purchased is a person different than the person in whose name the land is being purchased. The evidence on record does not indicate that the transfer made in favour of the respondent Nos.1 and 2 by respondent No.3 was in fact a transfer for some one else's interest. Therefore, it cannot be held that the transfer vide Ex.P-1 made in favour of the respondents 1 and 2 was a Benami transaction. Further, the appellant is not the heir of respondent No.3 - Tejkaran. He had no interest in the property when the transfer in favour of the respondents 1 and 2 was effected by a registered sale deed. He was also not a creditor of Tejkaran who may claim that to defeat his interest t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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. 14. Thus, from perusal of the ratio laid down in the case of Smt. Kanchan Jain (Supra) which has been relied upon by the applicant, and if read 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. 15. Thus, in the light of the principles laid down in the decisions gov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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