Mukesh and Another vs Shantilal and Others

N.K. Mody, J.—Being aggrieved by the order dated 10/07/07 passed by II ADJ, Mandsaur in Case No.22-A/04, whereby preliminary issue No.8 framed on the instance of the petitioners was decided against the petitioners, present petition has been filed.

Short facts of the case are that respondent NO.1 filed a suit for declaration and permanent injunction against the petitioners and also against rest of the respondents alleging that the suit land is situated at village Petlawad which is an agricultural land. It was alleged that the suit property was purchased by the Grand father of respondent NO. 1 in the name of Radhakishan father of respondent No. 1, therefore, in the revenue record name of father of respondent No. 1 was recorded as Bhumiswami. It was alleged that before 20 years grand father of respondent No. 1 gave suit land to the respondent No. 1 with the consent of father of respondent No. 1 and since then respondent No. 1 is in occupation of the land, but the name in the revenue record continued in the name of father of respondent No. 1. It was alleged that father of respondent NO. 1 sold the land in favour of petitioners and rest of the respondents vide sale deed dated 03/11/03, which is illegal. In the suit it was prayed that it be declared that the sale deed is void and permanent injunction be issued in favour of respondent No. 1.

The suit was contested by the petitioners on various grounds including on the ground that as per provisions of Benami Transaction Act the suit itself is not maintainable and the same be dismissed. On the basis of pleadings of parties learned trial Court framed the issues. Issue No.8 was as under:-

Whether in the light of provisions of Benami Transaction Act the suit is not maintainable?

After hearing the parties issue No.8 was decided against the petitioners, hence this petition.

Learned counsel for the petitioners argued at length and submits that the impugned order passed by the learned trial Court is illegal, incorrect and deserves to be set aside. It is submitted that respondent No.1 is claiming interest in the disputed property on the basis of Benami purchase by his grand father in the name of his father, which was given to the respondent No. 1 in partition, therefore, the suit filed by respondent No.1 was barred u/s 3 & 4 of Benami Transaction (Prohibition) Act, 1988. It is submitted that the learned trial Court committed error in holding that since the transaction of purchase by Radhakishan is prior to the commencement of Benami Transaction Act, therefore, recording of evidence is necessary. It is submitted that in the facts and circumstances of the case, petition filed by the petitioners be allowed and the impugned order passed by the learned Courts below be set aside.

Learned counsel for respondent No. 1 submits that after due appreciation of fact on record learned trial Court has decided the issue against the petitioners, which requires no interference. It is submitted that the petition filed by the petitioners be dismissed.

The Benami Transaction (Prohibition) Act, 1988 (which shall be referred hereinafter as ''Act'') came in force w.e.f. 05/09/1988. Section-3 of the Act restrains from entering into any benami transaction. Section-4 of the Act deals with the prohibition of the right to recover property held benami. Sub-Section-(1) of Section 4 of the Act lays down that no suit can be filed to enforce any right in respect of any property held benami.

In the matter of Uma Gupta Vs. Smt. Susheela, 1994(1) MPWN, Note 113 Division Bench of this Court has held that a suit to obtain declaratory decree that defendant is only Benamidar while plainuffis the real owner cannot be filed and the plaint is liable to be rejected. In the matter of Sukhdeo Prasad Vs. Halkeram, 2000 (1) MPWN, Note 104 wherein in a suit it was alleged that suit property was purchased by plaintiff and the name of defendant averred to have been mentioned nominally, it was held that the suit is hit by the provisions of Benami Transaction Act. In the matter of Jagdish Prasad Agrawal and another Vs. Raj Kumar s/o Radheshyam Agrawal and another, wheein the allegation was that the consideration was paid by the father to purchase the property in the name of son, this Court held that since the agreement was in favour of the person for a consideration paid by another person the transaction is certainly "Benami" and after coming into force of the Act the agreement of Benami transaction cannot be enforced by the Court. In the matter of Rajinder Kumar Malik Vs. Shanti Devi and Others, wherein married woman having salary income purchasing house from her saving and loan and there was no contribution from joint family property of her husband, Punjab & Haryana High Court held that purchase of property by her could not be viewed as purchase by Benamidar, even if her husband or relations made some contribution. In the matter of R. Rajagopal Reddy Vs. Padmini Chandrasekharan, AIR 1995 MPLJ 402 Hon''ble Apex Court has held that Section-4 of the Act has not been expressly made retrospective in operation. However, bar against filing, entertaining an admission of suits as provided in Section 4(1) would take in its sweep past benami transaction sought to be litigated upon after coming into force of Section 4(1).

In the present case from the plaint allegation itself it is evident that suit property was purchased by grant-father of respondent No. 1 in the name of father of respondent No. 1 before 20 years as Benami which was sold by the father of respondent No.1 to the petitioner and other respondent on 03/11/03. After coming into force of the Act no evidence was required to be recorded for deciding the preliminary issue as in view of Section 4(1) of the Act the suit itself was not maintainable. Learned Trial Court was not justified in holding that the issue cannot be decided without recording the evidence. On the contrary issue ought to have been decided on the basis of plaint allegations and keeping in view the provisions of law. In view of the facts stated hereinabove and keeping in view the position of law the petition filed by the petitioners is allowed and the impugned order passed by the learned Court below is set aside holding that the suit filed by respondent No. 1 is barred u/s 4(1) of the Act.

With the aforesaid observations, petition stands disposed of.

No order as to costs.