Santosh Malik vs Shri Maharaj Krishan & Anr.
1999 Latest Caselaw 1076 Del

ORDER

Vikramajit Sen, J.

1. This order will dispose of an application filed by Defendant No.1 under Order VII Rule 11 A & D of the Code of Civil Procedure wherein it has been prayed that the plaint calls for rejection. The suit has been filed for the partition and possession of B-6, Jangpura Extension, New Delhi-110014. It is asserted by the Plaintiff that she was the major contributory for the initial deposit of Rs. 2500/- and other investment made in the suit property in 1960. The parties are siblings, being the children of late Dr. Ram Krishan. It is claimed in the plaint that each of the parties has 1/3rd share in the suit property, which undoubtedly stands in the name of the Applicant/Defendant No.1. Although some documents have been filed by the parties I would, at this stage, only advert to Annexures: (A) and (B) of the application which are photocopies of the Deed of Conveyance of Building Constituted on Lease-Hold Sites Sold Otherwise Than By Public Auction and the Lease Deed (Applicable to Government-owned Sites in the Delhi State revised terms). The first is dated 31.7.1964 and the second is dated 28.1.1972. Both are in the name of Shri Maharaj Krishan, Defendant No.1. It is, therefore, undisputable that the nominal/titular owner of the suit property is the Applicant/Defendant No.1.

2. Although it is in controversy in the suit as to whether the Plaintiff and Defendant No.2 have made contributions toward the suit property and/or that the Applicant has consecutively and exclusively paid the taxes pertaining thereto, these facts need not detain attention for the reasons that at this stage, only the plaint should alone be looked into, along with admitted documents.

3. The attack on the maintainability of the plaint is predicated on the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as 'the Act).

4. Section 4 of the Act is reproduced below:

"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 proper ty.

(2) No defense 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;

(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.

5. In R. Rajagopal Reddy (Dead) By Lrs. & Ors. Vs. Padmini Chandrasekharan (Dead) by Lrs., , the Full Bench of the Apex Court held that Section 4(1) of the Act "would result in effacing any right acquired by the real owner in respect of the suit property held benami pursuant to any past transaction also". In this case the Court was principally concerned with the question whether the Act had prospective or retrospective operation, a controversy which need not be delved into here for the reason that the present suit has been filed in July 1996, well after the said Act came into operation. The ration is fully applicable.

6. This decision of the Apex Court was referred to in the case of Heirs of Vrajlal J. Ganatra Vs. Heirs of Parshottam S. Shah .

7. An arguments was raised by the learned counsel for the Plaintiff that the title deeds of the property relate to 1972 and/or earlier and,therefore, the Act shall not preclude the filing of the suit in 1996. There is now a plethora of precedents to the effect that the Act would apply, on a construction of the explicit language of Section 4(1) of the Act, to every suit filed after the coming into effect of the Act even if the transaction is for a period prior to the passing of the Act. In this view the suit is clearly not maintainable.

8. In T. Arivandandam Vs. T.V. Satyapal & Anr., , Justice Krishna Iyer had directed that if on a reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, the Court should exercise its power under Order VII of the Code. In that case the plaint was rejected by the Apex Court. These provisions were also resorted to in the case of I.T.C. Limited Vs. Debts Recovery Appellate Tribunal & Ors., .

9. In my considered opinion the suit deserves to be rejected at the threshold for the reason that it is not open to the Plaintiff to agitate, in 1996, that the suit property was benami in the hands of Defendant No.1. This plea is barred under Section 4(1) of the Act. No purpose whatsoever will be served in keeping the litigation alive; it is not in the interest of justice of any of the parties since its considerations has been statutorily barred. I accordingly dismiss the suit; but in the circumstances of the case leave the parties to bear their respective costs.