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TMI Blog2020 (9) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... as 3rd and 4th defendants in the said suit. During the pendency of the suit, the petitioners/3rd and 4th defendants had filed application in I.A.No.142/2013 to reject the plaint under Order 7 Rule 11 CPC on the ground that the suit is barred under the provisions of Benami Transactions (Prohibition) Act 1988. The said application was contested by respondents 1 to 7 herein/plaintiffs and the trial court dismissed the petition in I.A.No.142 of 2013 in O.S.3712 of 2004. Challenging the said order passed by the trial court, the petitioners have filed this Civil Revision Petition. 2. The learned counsel for the petitioners would submit that in the plaint itself, the respondents 1 to 7/plaintiffs had stated that suit properties are originally ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by its Chairman Vs. M/s.Ponniamman Educational Trust represented by its Chairperson/Managing Trustee.] (iii) CDJ 2005 SC 625 [Popat & Kotecha Property Vs. State Bank of India Staff Association] (iv)(1995) 2 SCC 630 [R.Rajagopal Reddy (dead) by LRs. And others Vs. Padmini Chandrasekharan (Dead) by Lrs. (v)CDJ 1997 SC 840 [Rebti Devi Smt Vs. Ram Dutt and another] (vi)CDJ 2000 SC 349 [Rajappa Hanamantha Ranoji Vs. Mahadev Channabasappa and others] (vii) 2014 SCC Online Mad 2617 [K.R.Rajeesh Kumar Vs. 1.K.Nalini Raghavan and others] (viii)2009-2-L.W.560 [P.Gopalasamy Vs.A.Palanisamy Chettiar] The learned counsel further submitted that the trial court failed to consider that Benami Transactions (Prohibition) Act is retrospective i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty and it is only coparcener property and after Gopal Pillai, both the sons are entitled for the said property and therefore, all the facts have to be decided in the suit and not in the interlocutory application filed before the trial court and there is no merit in the present revision petition and it is liable to be dismissed. 5. Heard both sides and perused the records carefully. 6. It is to be noted that respondents 1 to 7 herein filed suit for partition against the respondents 8 to 10 and the revision petitioners herein. The petitioners herein are arrayed as 3rd and 4th defendant in the said suit. The case of the 1st respondent herein is that one Gopal Pillai is the father of the 1st respondent and the 8th respondent. The said Gopa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the brothers born to Gopal Pillai. Therefore, they are neither coparcener nor having fiduciary capacity. Therefore, plaint has to be rejected. 8. The learned counsel for the respondents 1 to 7/plaintiffs vehemently denied that 8th respondent/1st defendant is not the son of concubine, he is only son of 2nd wife. As per Hindu Law, the son of 2nd wife is also entitled to a share of his father's property. However, he has submitted that averments stated in the written statement cannot be taken into consideration. The averments made in the plaint are only to be taken into consideration at the time of deciding the petition filed under Order 7 Rule 11 CPC for rejection of plaint. 9. A careful reading of the plaint, would go to show that Gopa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaint alone. The issues raised by the petitioners herein who are defendants 3 and 4 in the suit that 8th respondent is the concubine son; the question that whether the 8th respondent is concubine son or second wife son and the property purchased in fiduciary capacity or not; whether the sale is prohibited under Benami Transactions (Prohibition) Act, 1988, are all issues to be decided only after recording the evidence and after trial and not at this stage. 11. There is no quarrel over the proposition of law laid down by the Supreme Court in the various decisions cited by the learned counsel for the petitioners. Admittedly, in this case, the 1st respondent/plaintiff in his plaint has stated that 1st and 8th respondents are coparcener an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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