Shri Narayan Agrawal vs Shri Kishore Agrawal
2021 Latest Caselaw 2335 Chatt

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                                                                             AFR
             HIGH COURT OF CHHATTISGARH, BILASPUR
                              CR No. 99 of 2021
   1. Shri Narayan Agrawal S/o Late Shri Durga Dutt Aged About 88 Years
      R/o Ward Number 20, Manendragarh, District Korea, Chhattisgarh.
   2. Shri Sanket Kumar Agrawal S/o Shri Basant Kumar Agrawal Aged About
      33 Years R/o Ward Number 20, Manendragarh, District Korea,
      Chhattisgarh.
   3. Shri Saket Kumar Agrawal S/o Shri Kailash Kumar Agrawal Aged About
      30 Years R/o Ward Number 20, Manendragarh, District Korea,
      Chhattisgarh.
                                                                  ---- Petitioners
                                      Versus
   1. Shri Kishore Agrawal S/o Late Shri Hariprasad Agrawal Aged About 55
      Years R/o Ward Number 20, Manendragarh, District Korea,
      Chhattisgarh.
   2. Smt. Sakuntala Devi W/o Hariprasad Agrawal Aged About 77 Years R/o
      Ward Number 20, Manendragarh, District Korea, Chhattisgarh.
                                                               ---- Respondents

For the Petitioners : Dr. N.K. Shukla, Senior Advocate with Ms. Deepa Jha, Advocate.

For the Respondents : Shri Vivek Kumar Agrawal, Advocate.

Hon'ble Shri Justice Rajendra Chandra Singh Samant

Order on Board

15.09.2021

Heard.

1. This revision has been brought being aggrieved by the order dated

11.9.2019 passed by the trial Court, dismissing the application of the

petitioners, which was filed under Order VII Rule 11 of the CPC.

2. A civil suit was filed by the respondents praying for reliefs of declaration

of title and permanent injunction with respect to nazool plot No.3/8

measuring 5082 sq.ft., on the ground that the father of the plaintiffs had

purchased this property benami in the name of Savitri Devi on

6.10.1961. The suit is being contested by the petitioners. The

application was moved by the petitioners under Order VII Rule 11 of the

CPC on the ground that the suit is not maintainable under the provisions

of Benami Transactions (Prohibition) Act, 1988 (for short 'the Act, 1988'),

which has been dismissed by the impugned order.

3. It is submitted by Senior Counsel for the petitioners that clearly

according to the pleadings of the plaint, the claim of title was made by

the respondents on the basis that the suit property was purchased

benami in the name of Savitra Devi, however, this claim of the

respondents has been challenged by the petitioners. It is pleaded in the

plaint itself that Savitri Devi had executed a will dated 3.6.2017 in favour

of the petitioners, therefore, the petitioners claimed right on the suit

property on this basis. It is submitted that Section 4(1) of the Act, 1988

clearly provides 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, therefore,

there is a clear prohibition under this Act. Although, there is an

exception under Sub-section (3) of Section 4 of the Act, 1988, which is

applicable to undivided family, but there is no such pleading in the plaint

that Savitri Devi was a coparcener of the Joint Hindu family. After the

purchase of the suit property, Savitri Devi continued as the owner all

alone and it was not held by her in fiduciary capacity as it is provided

under Section 4 (3)(b) of the Act, 1988.

4. Reliance has been placed on the judgment of Supreme Court in the

case of Marcel Martins vs. M. Printer and Ors., reported in 2012 AIR

SCW 3007, in which the term fiduciary has been explained according to

which, it means that 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.

5. It is submitted in the case of Vishram alias Prasad Govekar and Ors.

vs. Sudesh Govekar (D) by Lrs. and Ors., reported in AIR 2017 SC

583, it was held that such a kind of dispute cannot be drawn into as it is

barred under the provisions of Section 4 of the Act, 1988. It is also

submitted that in the case of Saurabh Sharma late Manharan Lal

Sharma vs. Bankelal (Died) through LR's, reported in AIR Online

2020 Chh 50, this High Court has clearly held that such a suit for

declaration of title on the benami property is totally barred under Section

4(1) of the Act, 1988.

Reliance has also been placed on the judgments of Supreme

Court in the case of Samittri Devi and another vs. Sampuran Singh

and another, reported in AIR 2011 SC 773 and Mithilesh Kumar and

Another vs. Prem Behari Khare, reported in (1989) AIR (SC) 1247. It

is further submitted that this Court has held in the case of Dukhiya Bai

and Anr. vs. Pheruram Verma and Ors, reported in 2019(2) C.G.L.J.

14, it was held that a suit filed by the plaintiff claiming the declaration

that he is the owner of the suit property under Benami Transaction

(Prohibition) Act, 1988 is specifically barred under Section 4(1) of the

Act, 1988, therefore, the impugned order is not sustainable. Learned

trial Court should have allowed the application under Order VII Rule 11

of the CPC but it has been rejected. Hence, it is prayed that the petition

be allowed and the relief be granted accordingly.

6. Learned counsel for the respondents opposes the submissions and

submits that the issue raised by the petitioners/ defendants in their

application under Order VII Rule 11 of the CPC is a mixed question of

law and fact. The present case is clearly covered by the exception

under Section 4(3) of the Act, 1988. The suit property was purchased

benami, which is in the name of Savitri Devi for the purposes of holding

the same for joint family property. It is submitted that on the reverse

page of the sale deed dated 6.10.1961, it is clearly mentioned that the

whole amount of consideration was paid by father of Savitri Devi,

therefore, the possession of Savitri Devi in holding that property was

that of a trustee for the joint family property.

7. Reliance has been placed on the judgment of Supreme Court in the

case of Pawan Kumar vs. Babulal since deceased through Legal

Representatives and Others, reported in (2019) 4 SCC 367, in which it

was held that when the controversy has arisen on the ground claiming

that the holder of property has held the same in fiduciary capacity then

such a question must be gone into on the strength of the evidence on

record and it cannot be decided at the stage of deciding the application

under Order VII Rule 11 of the CPC. Hence, learned trial Court has not

committed any error in dismissing the application and the impugned

order is sustainable, which needs no interference.

8. Considered on the submissions. The pleadings in the plaint has to be

scrutinized again in view of the arguments made by the respondents

side. The pleadings in the plaint is that the suit property was purchased

in the name of Savitri Devi by her father Hariprasad Agrawal on

6.10.1961, for which the consideration price was paid by late Hariprasad

Agrawal. The suit property was in possession of late Hariprasad

Agrawal until his death, therefore, Savitri Devi was a benami holder of

the property. There is no such pleading in the plaint that the suit

property was purchased for the benefit and improvement of Joint Hindu

family property. In fact, there is no mention of the Joint Hindu family

property in the whole plaint. Neither there is any mention of Hindu

undivided family nor the joint property of such undivided family. In this

circumstance, the absence of such pleadings, which are the

requirement under sub-section (3) of Section 4 of the Act, 1988, for the

maintainability of the suit as an exception to the provision under Section

4(1) of the Act, 1988, is totally missing.

9. The prayer under Order VII Rule 11 of the CPC for rejection of plaint has

to be considered only on the basis of the plaint averments and nothing

else. The plaint averments as disclosed herein-above clearly shows

that nothing has been pleaded to show that the suit property was held

by Savitri Devi as coparcener of a Hindu undivided family and the same

was for the benefit of all the coparceners of the Joint Hindu family. This

being the position on the basis of the facts and pleadings in the plaint,

there is no material to draw conclusion that the suit filed by the

respondents is covered under the exception as provided under Section

4 (3) of the Act, 1988. This being the conclusion, the suit filed by the

respondents appears to be clearly barred under Section 4(1) of the

Benami Act, 1988 and in such a case the plaint of the respondents is

liable to be rejected under Order VII Rule 11(d) of the CPC.

10. On the basis of the findings given and the conclusions drawn, it is held

that the impugned order passed by the learned trial Court is erroneous

and unsustainable, therefore, the same is set aside. The application of

the petitioners under Order VII Rule 11 of the CPC is allowed. The

plaint of the respondents is rejected under Order VII Rule 11 (d) of the

CPC on that basis, the proceeding in the civil suit pending stand

terminated.

11. Hence, this revision stands disposed off.

Sd/-

(Rajendra Chandra Singh Samant) Judge

Nimmi