The Petitioners, who were arrayed as defendants 9 to 12 in the suit in O.S.No.162 of 2016 filed the present revision questioning the order of the Learned District Judge rejecting the petitioner’s application to reject the plaint.
2.The necessary facts leading to the revision is as follows: The respondent herein as Plaintiff filed a suit in O.S.No.162 of 2016, on the file of the learned Vth Additional District Judge, Madurai for partition claiming 7/8th share over the suit properties and for a consequential relief of injunction and to declare various sale deeds executed in favour of the petitioners herein as null and void with respect to the 1/8th share of the plaintiff.
3.It is the case of the Plaintiff/Respondent herein that the suit property originally belonged to Fakir Mohamed and Esakani. It is her further case that the Fakir Mohamed and Esakani were brothers, and living jointly. The Plaintiff is the daughter of Fakir Mohammed and 1st Defendant is the wife and other defendants 2 to 7 are the sons and http://www.judis.nic.in 3 daughters of Fakir Mohammed, whereas the 8th defendant is the wife of Esakani. Esakani and 8th defendant did not have any issues. Fakir Mohammed purchased the suit property in the name of his brother Esakani. Esakani and Fakir Mohammed died leaving behind the plaintiff and defendants 1 to 8 as their legal heirs to succeed their estate. The Plaintiff/respondent demanded her share with Esakani and Esakani executed an unregistered sale deed in her favour. After the death of Esakani, the 8th defendant claims that Esakani had given a HIBA in her favour and denies her valid share. Although it is claimed by the 8 th defendant to be a HIBA, the reading of it would show that it is only a Will. Thus, 8th defendant, being a widow of Esakani is entitled to only 1/8th share in the suit property.
4.The Defendants 1 to 7 instituted a suit in O.S.No.148 of 2014, on the file of the learned Vth Additional District Judge against the 8th defendant therein and the plaintiff, wherein the present suit property is shown as 1st item of suit property in O.S.No.148 of 2014. The said suit was withdrawn by the plaintiff therein. Thereafter the plaintiff filed O.S.No.455 of 2015, on the file of the learned Ist Additional Sub-Judge, Madurai against the defendants 1 to 8 herein http://www.judis.nic.in 4 claiming 1/8th share, the plaintiff herein reserved right to file a separate suit with respect to the present suit property. In view of compromise arrived the plaintiff has not pressed the suit as settled out of court.
5.Thereafter as the 8th defendant sold the property in favour of the defendants 9 to 12, the present suit for partition was filed.
6.The defendants 9 to 12 on appearance filed I.A.No.773 of 2016 under Order 7 Rule 11 of C.P.C. to reject the suit on the following grounds:
a) That in view of the specific plea taken by the plaintiff that Fakir Mohammed purchased the suit property in the name of the Esakani, the same is clearly barred by the provisions of Benami Transactions Act.
b) In view of the suit in O.S.No.162 of 2016, on the file of the learned Vth Additional District Judge, Madurai, being dismissed and the suit O.S.No.455 of 2015, on the file of the learned Ist Additional Sub- Judge, Madurai present suit is barred under the provisions of Order 9 Rule 9 of C.P.C. and hit by the provisions of Order 2 Rule 2 of C.P.C. http://www.judis.nic.in 5
7.The said application was contested by the plaintiff/respondent by filing her counter, wherein it is contended that the issue raised are questions of facts and the same cannot be decided in the present application and it requires elaborate trial. Hence, she prayed to dismiss the said application.
8.The learned District Judge, upon consideration dismissed the said application holding that the said contentions could be considered at the trial stage and not in the present application to reject the plaint. Aggrieved by the same, the petitioners preferred the present revision.
9.I heard Mr.D.Ravichander, learned counsel for the petitioners and Mr.M.Kannan, learned counsel for the respondent and perused the entire materials available on record.
10.It would be useful to extract the provisions of
Section 4 of Benami Transactions Act is as follows:
4. 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 http://www.judis.nic.in 6 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 defence based on any right in respect of any property held benami, 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.
11.Thus, a bare reading of the provision makes it unambiguously clear that no person can set up the plea of benami and claim his right over the property as benami. Now, the test would be whether the plaintiff in her plaint had really pleaded that the property was treated as “benami”, if the answer is affirmative then the natural result would be that the plaintiff would be refrained to stake her claim over the suit property and if the answer is in negative then, the petitioners herein would be directed to participate in the trial.
12.The Learned counsel for petitioners to buttress their claim, took me into the plaint averments especially para 3 & 4, and also relied upon the Judgment of the Hon’ble Supreme Court reported in 2005 (6) SCC 441 and 1997 (11) SCC 714 to support his contentions, wherein the Hon’ble Supreme Court held that the plea of Benami cannot be pleaded. The learned counsel as mentioned above had took http://www.judis.nic.in 7 me to the relevant paras in the plaint. For the sake of convenience the same is extracted hereunder:
Para 3 – “………He went to the extent of purchasing the properties in his brother’s name out of love and affection. They were living jointly. The Properties purchased are out of monies of both Fakkir Mohammed and Easakkani. They also dealt with the properties jointly.” Para 4 - “…..As stated above the suit property and other properties purchased and stands in the name of the brothers namely Fakkir Mohammed and Easakkani are all jointly purchased by them and dealt by them jointly as such the Easakkani has no independent right or locus standi to execute the settlement in favour of his wife namely the 8 th Defendant herein.” To which, the learned counsel for respondent herein would submit that it would be stretch of imagination to read the same as a plea of benami as the plaint never spells so.
13.While reading the plaint, any prudent man would understand that the plea raised in the plaint is nothing but a benami. Admittedly, it is the case of the plaintiff that sale deed towards the suit property stands in the name of Esakani and the same was purchased by the plaintiff’s father Fakir Mohammed out of love and affection, over his brother, thus it is clear that the plaint states two facts, that the http://www.judis.nic.in 8 property stands in the name of one person and the funds on the purchase for the same was provided by the other person, thus I am of the considered view that the averments squarely falls under the definition of Sec 2 (8) and (9) of the Prohibition of Benami Transaction Act, 1988. Thus, I am of the clear view that the reasoning of the Learned District Judge that the same would be matter of trail is clearly erroneous and liable to be set-aside. If the plaintiff is allowed to proceed with the suit then the same would amount to defeating the very object of the Parliament’s Intentions to enact the Act.
14.The next contention is that on withdrawal of the suit in O.S.No.148 of 2014, which was filed by the brothers of the Plaintiff, and the suit in O.S.No.455 of 2015 was filed by the Plaintiff herein claiming share over the estate of Fakkir Mohammed. Thus, it is contended that the suit is hit by provisions of Order 9 Rule 9 C.P.C. coupled with Order 2 Rule 2 C.P.C.
15.In reply to the same, the Learned Counsel for the Respondent contended that the suit in O.S.No.148 of 2014 was withdrawn behind his back and in O.S.No.455 of 2015, she had specifically reserved her right with respect to the present suit property http://www.judis.nic.in 9 and contended that none of the provisions quoted by the counsel for the Petitioner would be no avail.
16.The answer to this issue is also against the Respondent herein for the simple reason that although the Respondent while filing O.S.No.455 of 2015 had averred that she is reserving her right and such liberty was never granted by the court, in which the suit came to be filed. Hence, the plea that the mere reservation would not amount to grant of leave as held by the Hon’ble Supreme Court in (2013) 1 SCC 625, in the case of M/s.Virgo Industries Vs. M/s.Venture Tech Solutions Private Limited.
17.Thus, I am of the considered view that the present suit, being filed for the relief of Partition by setting up the plea of Benami is clearly barred by the provisions of
Section 4 (1) of Prohibition of Benami Transactions Act, 1988 and also the provisions of Order 9 Rule 9 r/w Order 2 Rule 2 of C.P.C. Further, the reasons, to the contra, assigned by the Learned District Judge are clearly erroneous. Hence, I do not have any hesitation to allow the present Revision by setting aside the Order made in I.A.No.773 of 2016 in O.S.No.162 of 2016, dated 10.03.2017, on the file of the learned Vth Additional District http://www.judis.nic.in 10 Judge, Madurai and consequently, the Plaint is liable to be strike off from its file.
18.In the result, this Civil Revision Petition is allowed, by setting aside the order passed in I.A.No.773 of 2016 in O.S.No.162 of 2016, dated 10.03.2017, on the file of the Learned Vth Additional District Judge, Madurai and the suit in O.S.No.162 of 2016 on the file of Learned Vth Additional District Judge, Madurai is struck off from the file. No costs. Consequently, connected miscellaneous petition is closed.
29.08.2018 Note:Issue order copy on 09.11.2018 vsv Index:Yes Internet:Yes To The Vth Additional District Judge, Madurai. http://www.judis.nic.in 11 M.V.MURALIDARAN,J.
vsv Pre-delivery order made in C.R.P.(MD)No.2230 of 2017 and CMP(MD)No.10906 of 2017 29.08.2018 http://www.judis.nic.in