Bombay High Court
M/S Anil Electrical Through Proprietor ... vs Subhash Ramchandra Ghadge And Anr on 8 May, 2025
2025:BHC-AUG:14317
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rIN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 2959 OF 2024.
M/s. Anil Electrical
through Proprietor
Shri Anil Ramchandra Ghadge
Age 49 years, Occ. Business and Agriculture,
R/o. Ghorpadwadi, Taluka Rahuri,
District Ahmednagar. .. Appellant.
Versus
1. Subhash Ramchandra Ghadge
Age 60 yeaars, Occ. Business & Agri.
R/o. Ghorpadwadi, Tq. Rahuri,
District Ahmednagar.
2. Mandakini Subhash Ghadge,
Age 51 years, Occ. Agri.
R/o. Ghorpadwadi, Tq. Rahuri,
Dist. Ahmednagar.
.. Respondents.
Mrs. C.S. Deshmukh, Advocate for appellant.
Mr. A.K. Gawali, Advocate for respondent Nos. 1 and 2.
CORAM :S.G. CHAPALGAONKAR, J.
RESERVED ON : 28.02.2025.
PRONOUNCED ON : 08.05.2025.
JUDGMENT :
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1. Heard Mrs. Charuta Deshmukh learned advocate for
appellant and Mr. A.K. Gawali, learned advocate for respondent nos. 1
and 2.
2. Present appeal takes exception to the order dated 21.9.2024
passed by Civil Judge (S.D.), Amhednagar below Exh.17 in Special Civil
Suit No. 99 of 2024, by which the plaint has been rejected in exercise of
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powers under Order 7 Rule 11 (d) of CPC. For sake of convenience,
parties are referred as per their original status.
3. The appellant/plaintiff instituted suit seeking declaration
that suit property has been purchased and developed by him. As such, he
is lawful owner of the property. Similarly, sought relief of perpetual
against defendants, in the alternative, plaintiff prayed for a decree for
recovery of amount of Rs. 1,14,40610/- against defendants towards
expenditure incurred for development of suit property.
4. It is contention of plaintiffs that under sale deed, which are
executed in name of defendants suit property has been purchased.
Consideration amount is paid by him. It is further contended that he is in
possession the suit property and made huge expenditure for its
development. The defendants are now obstructing his possession and
likely to deal with the property on the basis of mutation entries in their
name.
5. The defendants caused their appearance in the suit and filed
application under Order 7 Rule 11 of C.P.C. seeking rejection of plaint on
the ground that suit is barred in view of Section 4(1) of the Benami
Transactions (Prohibition) Act, 1988. The trial court accepted the plea of
defendants and rejected the plaint.
6. Smt. C.S. Deshmukh, Learned advocate for the appellant
submits that plaintiff and defendant No.1 are real brothers. In view of
fiduciary relationship between them, plaintiffs purchased property in the
name of defendant No.1. Such a transaction would not be hit by Section
4 of Benami Transactions Prohibition Act, 1988. In view of sub clause
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(b) of clause (iii) of Section 4, such transaction is protected. She would
further urge that plaintiff has made alternative prayer for recovery of
amount towards the expenditure incurred on the suit land. Therefore,
merely relying upon bar under Section 4 of the Benami Act, plaint could
not have been rejected. In support of her contention, she relies upon the
observations of the Supreme Court in the matter of Pawan Kumar Vs.
Babulal reported in AIR online 2019 SC 461. She would further submit
that partial rejection of plaint would not be permissible if one relief can
not be granted under law and alternative relief can be considered, then,
rejection of plaint would not be proper. She would further rely upon
judgment of this Court in case of Sopan Sukhdeo Sabale vs, Assistant
Commissioner AIR 2004 SC 1801.
7. Per contra, Mr. Gawali, learned advocate for respondents
submits that Section 4 of the Benami Transactions (Prohibition) Act
prescribes no suit or claim or action to enforce rights in respect of
properties held Benami against the person, in whose name property is
held or any other person shall lie by or on behalf of a person claiming to
be the real owner of such property. The prayer of declaration of
ownership made by plaintiff is on the basis of Benami transaction and,
therefore, the suit is barred under Section 4 of the Act. Hence, plaint is
rightly rejected.
8. Having considered submissions advanced, it can be observed
that the plaintiff and defendant No.1 are real brothers. Plaintiff asserts
that he purchased the suit property in the name of defendant and
elaborates the details of finances made by him. He further states that he
spent huge amount towards development of the land and raised
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infrastructure for irrigation and cultivation of land. Section 4 of the
Benami Transactions Act, 1988 reads thus :-
"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. (3) Nothing in this
section shall apply,-- (a) where the person in whose name the property
is held is a coparcener in a Hindu undivided family and the property is
held for the benefit of the coparceners in the family; or (b) where the
person in whose name the property is held is a trustee or other person
standing in a fiduciary capacity, and the property is held for the benefit
of another person for whom he is a trustee or towards whom he stands
in such capacity.
9. A bare reading of aforesaid provision stipulates that there
are two exceptions as indicated in sub-clause (iii) (b) of Section 4. Sub-
clause (b) protects when property is held by a person as a trustee or
other person standing in fiduciary capacity. The term "Fiduciary capacity"
has been widely interpreted by Corpus Juris Secondum, as under :-
"32. The term "fiduciary" has been explained by Corpus Juris
Secundum as under: "A general definition of the word which
is sufficiently comprehensive to embrace all cases cannot well
be given. The term is derived from the civil or Roman law. It
connotes the idea of trust or confidence, contemplates good
faith, rather than legal obligation, as the basis of the
transaction, refers to the integrity, the fidelity, of the party
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trusted, rather than his credit or ability, and has been held to
apply to all persons who occupy a position of peculiar
confidence toward others, and to include those informal
relations which exist whenever one party trusts and relies on
another, as well as technical fiduciary relations. The word
'fiduciary', as a noun, means one who holds a thing in trust
for another, a trustee, a person holding the character of a
trustee, or a character analogous to that of a trustee with
respect to the trust and confidence involved in it and the
scrupulous good faith and condor which it requires; a person
having the duty, created by his undertaking, to act primarily
for another's benefit in matters connected with such
undertaking. Also more specifically, in a statute, a guardian,
trustee, executor, administrator, receiver, conservator or any
person acting in any fiduciary capacity for any person, trust
or estate."
10. Generally the term fiduciary applies to any person who
occupies the position of peculiar confidence towards another. Taking note
of aforesaid defence, the Supreme Court in case of Rajgopal Reddi Vs.
Padmni Chandrashekharan (1999)2 SCC 630, observed as under :-
"Where the matter comes within the purview of Section 4(3) of the Act,
an aspect which must be gone into on the strength of evidence on
record. Going by the averments in plaint, the question whether the plea
raised by the appellant is barred under Section 4 of the Act or not could
not have been the subject matter of assessment at the stage when
application under Order 7 Rule 11 CPC was taken up for consideration.
The matter required fuller and final consideration after the evidence
was led by the parties. It cannot be said that plea of the appellant as
raised on the face of it, was barred under the Act."
The Supreme Court of India, relying upon the observations
recorded in the case of R. Rajgopal Reddi vs. Pandmini
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Chandrashekharan, set aside the order of rejection of plaint in case of
Pawan Kumar (supra).
11. Apart from aforesaid aspect of the matter, in the present
case, the plaintiff has claimed alternative relief of recovery of amount,
being amount of investment made by him in the suit property. In the
light of such alternative relief, even assuming that the plaintiff is not
entitled to raise claim as to declaration of ownership, owing to bar of
Section 4 of the Benami Transactions act, the trial is required to render
decision of alternative prayer. Therefore, the threshold rejection of plaint
in exercise of power under Order 7 Rule 11 of CPC cannot be
countenanced. The trial court nowhere deals with the alternative prayer
incorporated in the plaint while entertaining application under Order 7
Rule 11 of CPC and merely referring to bar under section 4 of the Benami
Transactions Act, 1988 rejected the plaint.
12. in the result, the appeal deserves to be allowed. Hence,
following order :-
ORDER
[a] The impugned order dated 21.9.2924 is quashed and set
aside;
[b] Special Civil Suit No. 99 of 2024 is restored to its original
position before the Civil Judge (S.D.), Ahmednagar.
[c] Parties to appear before the said court on 16th June, 2025.
[d] Appeal stands disposed of accordingly.
[S.G. CHAPALGAONKAR, J]
grt/-
