Bombay High Court
Manohar Yashwant Kelkar And Ors vs Atul Manohar Kelkar on 23 October, 2023
Bench: Amit Borkar
2023:BHC-AS:31913
41-wp6344-2023.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6344 OF 2023
Manohar Yashwant Kelkar & Ors. ... Petitioners
V/s.
Atul Manohar Kelkar ... Respondent
Mr. Abhishek Matkar i/by Mr. S.P. Kanuga for the
petitioners.
Mr. Tejas Deshmukh with Mr. Anshuman Deshmukh for
respondent No.1.
CORAM : AMIT BORKAR, J.
DATED : OCTOBER 23, 2023
P.C.:
1. Learned advocate for the petitioners at the outset seeks
permission to convert the writ petition into civil revision
application.
2. Permission, as prayed for, is granted.
3. Amendments to be carried out forthwith.
4. The challenge in this civil revision application is to the order
dated 24 February 2023 passed by the Trial Court rejecting
application of defendant for dismissal of suit under Order 7 Rule
11(d) of the Code of Civil Procedure, 1908 ("CPC" for short).
5. The respondent/original plaintiff filed a suit for partition. As
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per averments in the plaint, defendant No.1 and his wife
purchased the suit property as joint family property of plaintiff and
defendant Nos.1 and 2. However, defendant No.1 being eldest son
and karta of the family, the property was registered in the name of
defendant No.1 as owner. He, therefore, sought relief of partition
and separate possession.
6. In the said suit, defendant No.1 filed an application under
Order 7 Rule 11 of the CPC contending that the suit is barred by
Section 4(1) of the Prohibition of Benami Property Transactions
Act, 1988 ("Benami Transactions Act" for short). The Trial Court
rejected the application holding that the averments in the plaint
disclose contention being purchased on behalf of the Hindu Joint
Family and, therefore, bar contained under Section 4(1) of the
Benami Transactions Act is prima facie unavailable.
7. According to the learned advocate for the applicants, after
amendment in the Benami Transactions Act. Section 4 prohibits
initiation of 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.
8. To consider the said submission, it is necessary to set out
Section 2(9) of the Benami Transactions Act which defines Benami
Transactions, which reads thus:
"(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
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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--
(i) a Karta, or a member of a Hindu undivided
family, as the case may be, and the property is
held for his benefit or benefit of other members
in the family and the consideration for such
property has been provided or paid out of the
known sources of the Hindu undivided family;
(ii) a person standing in a fiduciary capacity for
the benefit of another person towards whom he
stands in such capacity and includes a trustee,
executor, partner, director of a company, a
depository or a participant as an agent of a
depository under the Depositories Act, 1996 (22
of 1996) and any other person as may be notified
by the Central Government for this purpose;
(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;
(iv) any person in the name of his brother or
sister or lineal ascendant or descendant, where
the names of brother or sister or lineal ascendant
or descendant and the individual appear as joint-
owners in any document, and the consideration
for such property has been provided or paid out
of the known sources of the individual; or
(B) a transaction or an arrangement in respect of a
property carried out or made in a fictitious name; or
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(C) a transaction or an arrangement in respect of a
property where the owner of the property is not aware of, or
denies knowledge of, such ownership;
(D) a transaction or an arrangement in respect of a
property where the person providing the consideration is not
traceable or is fictitious;
Explanation: For the removal of doubts, it is hereby declared
that benami transaction shall not include any transaction
involving the allowing of possession of any property to be
taken or retained in part performance of a contract referred
to in section 53A of the Transfer of Property Act, 1882 ()4 of
1882), if, under any law for the time being in force,--
(i) consideration for such property has been
provided by the person to whom possession of property
has been allowed but the person who has granted
possession thereof continues to hold ownership of such
property;
(ii) stamp duty on such transaction or arrangement
has been paid; and
(iii) the contract has been registered;"
9. On meaningful reading of Section 2(9) of the Benami
Transactions Act, it appears that the said sub-section defines
meaning of benami transaction. However, the definition clause
under (a) and (b) has exception in the form of (i) to (iv). (i)
excludes applicability of definition of benami transaction when the
property is held by a karta or member of a Hindu Undivided
Family.
10. The scope of Order 7 Rule 11 of the CPC has been
interpreted in a series of judgments by the Apex Court to mean
that the averments in the plaint need to be accepted as correct. On
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perusal of paragraph 6 of the plaint, it appears that the plaintiff
has pleaded that the suit property was purchased as a joint family
of plaintiff and defendant Nos.1 and 2 as defendant No.1 was
karta of the family. Whether the statement made in paragraph 6 is
correct or not has to be decided during trial after granting
opportunity to both sides to lead evidence. At this stage, it is not
possible to conclude on merits as to whether the property in the
name of defendant was purchased as benami or is self-acquired
property of the defendant.
11. Therefore, in my opinion, considering the averments made in
the plaint, the Trial Court need to adjudicate the issue of
applicability of Benami Transactions Act after granting opportunity
to both sides to lead evidence and after framing appropriate issue.
12. With this clarification, no case for interference is made out.
The civil revision application, therefore, stands rejected. No costs.
(AMIT BORKAR, J.)
