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2020 (3) TMI 1107

..... re 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 .....

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..... uit No.251/2016, whereby learned trial Court dismissed the application filed by the applicant under Order 7 Rule 11 of C.P.C. 2. It is not in dispute that the 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 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. Subseq .....

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..... ection 4 of the Benami Transactions (Prohibition Act), 1988 and the respondent is precluded from raising plea of Benami Transactions. 6. The learned trial Court dismissed the said application holding 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 a .....

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..... property. The transaction cannot be held to be Benami because the transfer had been made in the name of the persons to whom the land was intended to be transferred. In a Benami 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 .....

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..... 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. 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 fr .....

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