TMI Blog2017 (2) TMI 1478X X X X Extracts X X X X X X X X Extracts X X X X ..... inion that the suit filed by the plaintiff is hit by the provisions of the Act and requires to be rejected as barred by the provisions of the Benami Transaction (Prohibition) Act,1988. The plaint averments exclusively reflects that the suit is barred by law. There is no prohibition in rejecting the plaint at the threshold sans going into the ordeal of trial. - R.F.A.No. 100023/2016 - - - Dated:- 7-2-2017 - THE HON BLE MRS.JUSTICE S. SUJATHA For the Appellant : SRI HANUMANTHAREDDY SAHUKAR, ADV. For the Respondent : SRI NAGARAJ J. APPANNANAVAR SRI L.T.MANTAGANI,ADVS. FOR R-1; R-2 SERVED. JUDGMENT This appeal is directed against the Judgment and decree passed by the Prl. Senior Civil Judge and JMFC, Hospet on IA-V in O.S.No.556/2014 whereby the plaint is rejected as barred by law. 2. For the sake of convenience, the parties are referred to as per their ranking in the trial Court. 3. Briefly stated the facts are, the plaintiff filed a suit in O.S.No.556/2014 before the trial court against the respondents for declaration, declaring that the joint, right and possession of defendant No.1 in the schedule mentioned properties as null and void and restraining t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 1. Vaish Aggarwal Panchayat v- Inder Kumarand others reported in 2015 SAR (CIVIL) 1151; 2. Smt. M. Printer and others v- Marcel Martins reported in ILR 2002 KAR 3757; 3. R.K. Roja v- U.S.Rayudu and another in Civil Appeal No.5540/2016 DD 4.7.2016 5. Per contra, learned counsel appearing for respondent No.1/defendant No.1 supports the impugned Judgment and decree. Learned counsel submits that plaintiff has filed the suit against defendants for declaration of joint possession of defendant No.1 in the plaint schedule properties are null and void. It is the claim of the plaintiff that suit properties belongs exclusively to him and his family. Itis the contention of the plaintiff that the suit property has been purchased by him in the name of defendants which amounts to benami transaction, prohibited in-law. The claim of the plaintiff is prohibited by the Act and plaint is liable to be rejected. 6. Learned counsel placing reliance on Order VII Rule 11(1)(d) of CPC submits that the plaint averment being clear, discloses the benami transactions of the plaintiff, that the 1st defendant was the legal advisor and only a name lender, establishes the factum of benami transa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he schedule property, no part of the investment for improvement flowed from the 1st defendant; in paragraph 8 of the plaint, it is averred that the 1stdefendant prevailed upon the plaintiff to enter his name in the relevant sale deeds. On his advise, the plaintiff got the sale deeds registered jointly in the name of the2nd defendant, a minor at that time, who is none other than his brother and defendant No.1. Thus, it was only a security for his service that led to implead the 1stdefendant in the sale deeds relating to schedule properties jointly with the 2nd defendant; Similarly in paragraphs 9 and 10, it is averred that when it came for investing huge funds for forming layout, then also, 1stdefendant refused to part with any funds and this led to a situation in augmenting funds by selling some properties in Sy.No.180 C/1 and 180 C/2 etc., which was agreed and endorsed on the rear side of the sale deeds by defendant No.1. It is averred that the total improvement by expending huge amounts by the plaintiff leads to the conclusion that 1st defendant s name is only sham and nominal. Thus, it is contended that defendant No.1 was involved only to get the provisional certificates and not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. 3. Nothing in this section shall apply, a) Whether 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 coparcener in the family; or b) Where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity. 11. Section 3 contemplates prohibition of benami transactions, whereas Section 4 contemplates prohibition of the right to recover property held benami. This transaction, if examined in the light of Sections 3and 4 of the Act, what could be inferred is the plaintiff had invested in the transaction as a benami. Order VIIRule 11(1)(d) of CPC provides that where the suit appears from the statement in the plaint to be barred by any law, the plaint shall be rejected. The averments of the plaint itself cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onesty in not mentioning the name of real contributors of the fund for the purchase of the properties is to be looked into. In the context of the case that defendant had taken a stand that the entire consideration was for the purchase of the property in his name was provided by him and the plaintiffs have not contributed any amount towards sale consideration, having taken such a specific plea and having failed in proving the said plea, the defendant would be estopped from contending that in the event the Court comes to the conclusion that plaintiffs have contributed to the purchase of schedule property in the name of defendant, such transaction is hit by the Act. Hence, the said Judgment is not applicable to the facts of the case on hand. 15. In the light of the Judgments referred to above, coupled with the plaint averments read with under Order 7 Rule 11(1)(d) of CPC and the provisions of the Act, this Court is of the considered opinion that the suit filed by the plaintiff is hit by the provisions of the Act and requires to be rejected as barred by the provisions of the Benami Transaction (Prohibition) Act,1988. The plaint averments exclusively reflects that the suit is barred ..... X X X X Extracts X X X X X X X X Extracts X X X X
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