NARAYAN AGRAWAL Vs. KISHORE AGRAWAL

JUDGEMENT

(1.) This revision has been brought being aggrieved by the order dtd. 11/9/2019 passed by the trial Court, dismissing the application of the petitioners, which was filed under Order VII Rule 11 of the CPC.

(2.) A civil suit was filed by the respondents praying for reliefs of declaration of title and permanent injunction with respect to nazool plot No.3/8 measuring 5082 sq.ft., on the ground that the father of the plaintiffs had purchased this property benami in the name of Savitri Devi on 6/10/1961. The suit is being contested by the petitioners. The application was moved by the petitioners under Order VII Rule 11 of the CPC on the ground that the suit is not maintainable under the provisions of Benami Transactions (Prohibition) Act, 1988 (for short 'the Act, 1988'), which has been dismissed by the impugned order.

(3.) It is submitted by Senior Counsel for the petitioners that clearly according to the pleadings of the plaint, the claim of title was made by the respondents on the basis that the suit property was purchased benami in the name of Savitra Devi, however, this claim of the respondents has been challenged by the petitioners. It is pleaded in the plaint itself that Savitri Devi had executed a will dtd. 3/6/2017 in favour of the petitioners, therefore, the petitioners claimed right on the suit property on this basis. It is submitted that Sec. 4(1) of the Act, 1988 clearly provides that 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, therefore, there is a clear prohibition under this Act. Although, there is an exception under Sub-sec. (3) of Sec. 4 of the Act, 1988, which is applicable to undivided family, but there is no such pleading in the plaint that Savitri Devi was a coparcener of the Joint Hindu family. After the purchase of the suit property, Savitri Devi continued as the owner all alone and it was not held by her in fiduciary capacity as it is provided under Sec. 4 (3)(b) of the Act, 1988.