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TMI Blog2025 (5) TMI 1451X X X X Extracts X X X X X X X X Extracts X X X X ..... y the court of first instance as well as the High Court in revision. 2. Special Leave Petition (C) No.4673/2023 Smt. Shaifali Gupta vs. Smt. Vidya Devi Gupta & Ors. preferred by the main contesting defendant to the suit is taken up as the lead case, therefore, the facts as stated therein and the parties as described therein shall be narrated and taken as a base. 3. The two plaintiffs i.e. the mother and the son being Smt. Vidya Devi Gupta (plaintiff No.1) and Shri Sudeep Gupta (plaintiff No.2) instituted a Regular Suit No.630A/2018 against the other son of plaintiff No.1 i.e. Sandeep Gupta (defendant No.1) and his wife Smt. Shaifali Gupta (defendant No.2). In the said suit, the two sons of the defendant No.1 namely Siddharth Gupta and Shantanu Gupta were arrayed as defendant Nos.3 and 4. The wife of the plaintiff No.2, Smt. Shalini Gupta and his son Sankalp Gupta were added as defendant Nos.8 and 9. In addition to the above family members, Deepak Lalchandani and Surya Prakash Mishra were also arrayed as defendant Nos.5 and 6 being the subsequent purchasers of some of the properties mentioned in the plaint. 4. The aforesaid suit is for partition, possession, declaration, mandator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laint. Some of the properties mentioned in paragraph 6 of the plaint at Serial Nos.19, 20 and 21 were sold by Shaifali Gupta (defendant No.2), wife of the elder son, in favour of defendant Nos.5 and 6 and as such it has been alleged that the said sales are void. 11. It is on the basis of the above averments that the suit for declaration, partition, injunction in respect of the suit properties was instituted by the mother (plaintiff No.1) and the younger son (plaintiff No.2). In the said suit, the subsequent purchasers defendant Nos.5 and 6 moved an application purported to be under Order VII Rule 11 CPC contending that the suit is not maintainable in view of the provisions of Benami Transaction (Prohibition) Act, 1988 Hereinafter referred to as 'the Benami Act'. It is made clear that no such application was filed by the main contesting defendants to the suit i.e. by the elder brother or his family members. They never alleged that the suit is not maintainable or is barred by any provision of the statute. 12. The above application was contested by the plaintiffs and a reply was filed stating that the Benami Act (as amended in 2016) came into force w.e.f. 11.01.2016 and all the fami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce rejecting the application under Order VII Rule 11 CPC was not challenged by the main contesting parties i.e. the elder brother and his wife (defendant Nos.1 and 2) or their children. 16. After having failed in the two courts below in getting the plaint rejected in exercise of powers under Order VII Rule 11 CPC, Deepaklal Chandani (defendant No.5) alone has preferred Special Leave Petition (C) No.4674/2023 whereas Special Leave Petition (C) No.4673/2023 has been preferred by the Shaifali Gupta (defendant No.2). 17. At the very outset, it is pertinent to mention that Shaifali Gupta (defendant No.2) had neither moved application under Order VII Rule 11 CPC for the rejection of the plaint nor she has filed any revision challenging the order of the court of first instance rejecting such an application moved by the defendant Nos.5 and 6. Therefore, she is not a person aggrieved by the rejection of the application under Order VII Rule 11 and cannot be permitted to assail the impugned orders. She has acquiesced to the jurisdiction of the trial court and has by her conduct accepted the order of the court of first instance and chosen to contest the suits on merits. 18. The defendant N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d) does not stand attracted so as to reject the plaint. The defence or the issues raised by the defendants are factual in nature which are dependent upon the facts to be proved inter se the parties on the basis of the evidence to be adduced. 23. Section 4 of the Benami Act bars the suit, claim or action in respect of a property held benami by person at the behest of the person claiming to be its true owner. It reads as under: "4(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." 24. The above provision bars an action in respect of 'property held benami'. However, whether the property in respect of which the suit, claim or action has been brought about is a benami property or not, is the issue of prime consideration. 25. The plaint allegations all through describe the suit properties as the Joint Hindu Family properties and that they have been purchased either from the nucleus of the Joint Hindu Family property or the income derived from the joint family business. The pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion that the plaint is also hit by Section 14 of the Act, it is important to point out that no such specific plea was taken by the defendants in the application under Order VII Rule 11 CPC. Such a plea was never raised and argued before either of the courts below. There is no finding by any court on the above aspect. Therefore, it has rightly been submitted by the counsel for the plaintiff that the defendants cannot be permitted to raise such a plea for the first time in the Special Leave Petition without there being any foundation to that effect. 31. More importantly, Section 14 of the Act simply provides that the property possessed by a female Hindu shall be held by her as a full owner. It does not bar or prohibit a suit in respect of such a property. Therefore, in the absence of any bar contained in the above provision, the suit plaint is not liable to be rejected as barred by law. 32. The courts below have rejected the application filed by defendant Nos.5 and 6 under Order VII Rule 11 CPC and have refused to reject the plaint as barred by any statute. It means that the parties are at liberty to contest the suit on merits. They have right to get the necessary relevant issues ..... X X X X Extracts X X X X X X X X Extracts X X X X
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