Allahabad High Court
Smt Seema Sharma vs Devendra Mehndi Ratta And Another on 8 August, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:134365
Reserved On: 05.08.2025
Delivered On:08.08.2025
Court No. - 9
Case :- CIVIL REVISION No. - 11 of 2024
Revisionist :- Smt Seema Sharma
Opposite Party :- Devendra Mehndi Ratta And Another
Counsel for Revisionist :- Abhinava Krishna Srivastava,Digvijay Kumar Mishra
Counsel for Opposite Party :- Brijesh Kumar Singh,Sanjay Kumar Nigam
along with
Case :- CIVIL REVISION No. - 40 of 2024
Revisionist :- Smt Anuradha Mehndi Ratta@ Shikha
Opposite Party :- Devendra Mehndi Rattam And Another
Counsel for Revisionist :- Harish Chandra,Sanjay Kumar Nigam
Counsel for Opposite Party :- Brijesh Kumar Singh
Hon'ble Manish Kumar Nigam,J.
1. Heard learned counsel for the parties and perused the record.
2. Both the revisions have been filed challenging the order dated 21.10.2023 passed by Additional Civil Judge (Senior Division) Court No. 1, Kanpur Nagar rejecting application Paper No. 55-Ga (2) filed by the defendants-revisionists under Order VII Rule 11 of C.P.C.
3. Facts in brief giving rise to the present revisions are that Original Suit No. 286 of 2016 (Devendra Mehndi Ratta Vs. Smt. Anuradha Mehndi Ratta and others) was instituted by the plaintiff-respondent against the defendant-revisionist (defendant No. 2) and defendant-respondent (defendant No. 1) for cancellation of sale deed dated 27.01.2010 executed by defendant No. 1 in favour of defendant No. 2 of shop in dispute. As per the plaint case, plaintiff and defendant No. 1 are husband and wife. Plaintiff-respondent purchased the land in question at a public auction and has deposited the auction money installments, execution and registration expenses, construction expenses of the shop though the plot was purchased in the joint name of the plaintiff and defendant No. 1 being wife of the plaintiff as joint purchasers. The mention of defendant No. 1 name was benami as the entire funds were provided by the plaintiff and defendant No. 1 neither had any funds nor spent any amount in purchase and construction of the shop in dispute. Later on due to matrimonial dispute, the marriage between plaintiff and defendant No. 1 was dissolved by a decree of divorce dated 04.03.2009. Defendant No. 1 with mala fide intention and causing wrongful loss to the plaintiff, took advantage of her name in a freehold deed and sold the property in dispute in favour of defendant No. 2 by a sale deed dated 27.01.2010 knowing fully well that the defendant No. 1 has no right, title or interest in the said shop. It was also pleaded that the name of the defendant No. 1 was mentioned in the freehold deed because of the policy of Kanpur Development Authority. Defendant No. 2 entered her appearance in the suit after receiving notice and filed written statement denying plaintiff's claim. Defendant-revisionist filed an application paper No. 55 Ga(2) under Order VII Rule 11 of C.P.C. for rejection of plaint on the ground that Suit No. 286 of 2016 is barred by Sections 3 and 4 of The Prohibition of Benami Property Transactions Act, 1988 (hereinafter referred as 'Act of 1988'). On 28.08.2018 objections were filed by the plaintiff-respondent and the trial court i.e. Additional Civil Judge (Senior Division) Court No. 1, Kanpur Nagar by judgment and order dated 21.10.2023 rejected the application Paper No. 55-Ga filed by the revisionist. Hence the present revisions.
4. It has been contended by counsel for the revisionists that Section 3 prohibits benami transactions whereas Section 4 of Act of 1988 prohibits the right to recover property held to be benami. It has been further submitted by counsel for the revisionists 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. Sections 3 and 4 of the Benami Property Transactions Act, 1988 are quoted as under:-
"3. Prohibition of benami transactions.--(1) No person shall enter into any benami transaction.
2* * * * *
3[(2)] Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
4[(3) Whoever enters into any benami transaction on and after the date of commencement of the Benami Transactions (Prohibition) Amendment Act, 2016 shall, notwithstanding anything contained in sub-section (2), be punishable in accordance with the provisions contained in Chapter VII.]
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 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."
5. Learned counsel appearing for the respondents submitted that sub-Section 9 of Section 2 of Act of 1988 defines 'benami transactions' meaning a transaction or an arrangement where the property is transferred to or is held by, a person and the consideration for such property has been provided or paid by another person and the property is held for the immediate or future benefit direct or indirect of the person, who has provided the consideration. It has been further contended that sub-Section 9 (iii) of Section 2 provides for exception in respect of properties purchased in the name of the spouse or children. Sub-clause (9) of Section 2 is quoted as under:-
"(9) "benami transaction" means,--
(A) a transaction or an arrangement--
(a) where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by, another person; and
(b) the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration,
except when the property is held by--
.............
(iii) any person being an individual in the name of his spouse or in the name of any child of such individual and the consideration for such property has been provided or paid out of the known sources of the individual;....."
6. Considering the rival submissions and pursuing the record and the judgment passed by court below, I am of the view that in the present case the property as per the plaint allegation has been purchased by the plaintiff in the joint name of the plaintiff and his wife and further it has been alleged in the plaint that the entire consideration amount has been paid by plaintiff for the said purchase. It has been further stated in the plaint that defendant No. 1 (wife) has no means to purchase the property and has actually not paid any amount for the purchase of the property in dispute and therefore, the exception created by sub-Rule 9(iii) of Rule 2 of Act of 1988 will be applicable in the present case.
7. Since while deciding an application under Order VII Rule 11 of C.P.C, it is only the plaint allegations which are to be seen therefore, from the bare perusal of the allegations as made in the plaint, it is apparent that suit is not prima facie barred by The Prohibition of Benami Property Transactions Act, 1988.
8. In my view, the trial court has committed no error in rejecting the application filed by the revisionist under Order VII Rule 11 of C.P.C. Needless to say that the averments made in the plaint are always subject to prove by leading cogent evidence by the plaintiff and rejection of an application under Order VII Rule 11 of C.P.C. will not come in way of defendants, in case plaintiff fails to prove the averments made in the plaint or the defendants are able to prove otherwise by leading cogent evidence which shall be seen at the time of final disposal of the suit.
9. Accordingly, both the revisions are dismissed.
Order Date: 08.08.2025
Nitika Sri.
(Manish Kumar Nigam,J.)
