TMI Blog2020 (9) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... l Pillai. After the death of Gopal Pillai dated 20.03.1994, taking advantage of the same, in the year 2001, 8th respondent has executed General Power of Attorney in favour of the 9th respondent herein and sold the property in the name of the petitioners. Therefore, the 1st respondent came to knowledge of the sale deed on 30.03.2004 and after that the respondents 1 2/plaintiffs applied for the certified copy of sale deeds and thereafter, they filed the suit. Admittedly, in this case, the 1st respondent/plaintiff in his plaint has stated that 1st and 8th respondents are coparcener and the sons of Gopal Pillai who purchased the property out of his funds in the name of the 8th respondent. So, Gopal Pillai, was in possession of the property. After the death of Gopal Pillai, without the knowledge of the 1st respondent, 8th respondent executed General Power of Attorney in the name of the 9th respondent. 9th respondent sold the property to the petitioners. So the issues raised herein that (i) as to whether the property is purchased by Gopal Pillai in the name of the 8th respondent out of his funds; if so at the time of purchase, whether the 8th respondent has got the means to purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed in the name of the 1st defendant out of the funds of one Gopal pillai. It clearly shows that Benami Transactions (Prohibition) Act would attract. After the death of Gopal Pillai, the 1st defendant sold the property to the petitioners. Therefore, the respondents 1 to 7 filed the suit for partition declaring the sale deed executed by 1st defendant/8th respondent herein in favour of the 3rd defendant /1st revision petitioner as null and void and it will not bind the respondents 1 to 7/plaintiffs. Since the plaintiffs themselves admitted that V.T.Gopal Pillai purchased the property in the name of the 1st defendant/8th respondent herein, after the death of Gopal Pillai, the 1st defendant dealt with the property, therefore, the suit has to be rejected on the ground that the Benami Transactions (Prohibition) Act is applicable to the facts of the case, so plaint has to be rejected under Order 7 Rule 11 of CPC. 3. In support of the above contentions, the learned counsel for revision petitioners, placed reliance on the following judgments of Honourable Supreme Court and this court. (i) CDJ 1986 SC 277 [Ram Singh and others Vs. Gram Panchayat Mehal Kalan and others] (ii)CDJ 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Gopal Pillai was working in Food Corporation of India. He purchased the property in the name of the 8th respondent and after the death of Gopal Pillai, the 1st defendant/8th respondent sold the suit property through Power of Attorney to the petitioners herein and therefore, respondents 1 to 7 herein/plaintiffs filed the suit for partition and also seeking to declare the sale deed in favour of the petitioners herein and Power of Attorney as null and void and it will not bind the 1st responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent herein and sold the property in the name of the petitioners. Therefore, the 1st respondent came to knowledge of the sale deed on 30.03.2004 and after that the respondents 1 2/plaintiffs applied for the certified copy of sale deeds and thereafter, they filed the suit in O.S.No.3712 of 2004. 10. It is settled proposition of law while dealing with the application filed under Order 7 Rule 11 of CPC, the court has to see the averments made in the plaint not the defence taken by the defendants and also defence taken in the written statement in the suit. In the written statement filed by the 8th respondent/1st defendant, he has not stated that the sale in favour of 8th respondent is barred under Benami Transactions (Prohibition) Act. Though the court need not go into the averments made in the written statement, it can go into the averments made in 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 Transa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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