TMI Blog2023 (5) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... y, Anpurna Devi (original petitioner), the suit is barred by the provision of Benami Transactions (Prohibition) Act, 1988 as well as barred under Hindu Law and the plaintiffs have got no cause of action. HELD THAT:- Sub-section 3 of Section 4 will not be applicable where the person in whose name the property is held is co-parcener in any Hindu Undivided Family and property is held for the bona fide of the co-parceners in the family. It is the case of the defendant that she was also a co-parcener. It is settled principle of law that a female member is never considered as co-parcener in a Hindu Undivided Family. In the case of NAND KISHORE MEHRA VERSUS SUSHILA MEHRA [ 1995 (7) TMI 64 - SUPREME COURT ], the Hon ble Supreme Court h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Rajeev Kumar Sinha, Advocate For the Opposite Parties : Mr. Praveen Kumar, Advocate CAV ORDER Heard learned counsel for the petitioners and learned counsel for the opposite parties. 2. By the impugned order dated 21.11.2019, the learned Sub-Judge has rejected the petition filed by the defendant-petitioner (original petitioner) praying for rejection of plaint under Order VII Rule 11 D of the Code of Civil Procedure in Title Suit No. 404 of 2016. 3. The plaintiffs filed the suit for declaring the Schedule 1 land of the plaint as it is the joint family property and for permanent injunction restraining the defendant, namely, Anpurna Devi (original petitioner) not to transfer the suit property in favour of any person till ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered sale deed dated 13.06.1990 from one Bhupendra Nath and others in the name of defendant namely Anpurna Devi (original petitioner) from the joint family business income. Similarly, other properties were also purchased on 21.3.2005 and 27.10.10 in the name of defendant namely Anpurna Devi (original petitioner) from the income of joint family business. Further, the case of the plaintiffs is that the husband of plaintiff No. 4, namely, Shyam Lal Gayab had constructed residential house upon Plot No. 987 (new) with the income of joint family business, in which the plaintiffs resided. Defendant No. 2 and 3 are cunning and shrewd men and has intention to grab share of the plaintiffs and as such, they have brought the defendant No. 1 in collusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision of Section 3 and 4 of the Benami Transactions (Prohibition) Act, 1988. From perusal of impugned order of the Trial Court it appears that the claim of the defendant, namely, Anpurna Devi (original petitioner) of this Civil Revision application is barred by Benami Transactions (Prohibition) Act, 1988. 9. Section 4 of the Benami Transactions (Prohibition) Act, 1988 reads as follows:- Prohibition of the right to recover property held Benami- (1). No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2). No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Act. However, it may be mentioned that the claim of the plaintiffs is that the property is the joint family acquisition. 12. In the aforesaid decision, the Hon ble Supreme Court has held that although the provision under Section 4 of the Benami Transactions (Prohibition) Act, 1988 will be applied but it has to be made clear that when a suit is filed or defence is taken in respect of such Benami transaction, involving purchase of property by any person in the name of his wife or unmarried daughter, he cannot succeed in such suit or defence unless he proves that the property although purchased in the name of his wife or unmarried daughter, the same had not been purchased for the benefit of either the wife or the unmarried daughter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recedent to the exercise of power under Order VII Rule 11 of the Code of Civil Procedure, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that have to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order VII Rule 11 of the Code of Civil Procedure, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex-facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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