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Judgment
ORDER
The applicants have filed the present civil revision under Section 115 of the Code of Civil Procedure challenging the order dated 25.06.2026 passed by the Tenth Civil Judge, Senior Division, Gwalior, in Civil Suit No.209 of 2026, whereby their application under Order 7 Rule 11 CPC has been rejected by the learned Trial Court.
It is not disputed that the plaintiff no.1 and defendant no.1 are real brothers being sons of one Ram Kumar Dixit, while defendant no.2 is the widow of Shri Dixit. Plaintiff No.2 is the wife of plaintiff no.1. The applicants are the 'defendants' and the respondents are the 'plaintiffs' in the civil suit. It is also not in dispute that the property, which is in dispute in the civil suit, was purchased by Ram Kumar Dixit in the name of his wife, Smt. Nisha Dixit i.e. defendant no.2, vide two sale deeds dated 22.05.1973 and 21.04.1975.
After the death of Shri Ram Kumar Dixit, his son along with his wife i.e. the plaintiffs, filed the present suit seeking a share in the suit property. It is their case that, even though the suit property was purchased by Ram Kumar Dixit in the name of his wife i.e. defendant no.2, it was purchased for the benefit of the family and is, thus, a joint Hindu family property, wherein plaintiff no.1 has 1/3rd share. The plaintiffs have also averred that defendant no.2 had no source of income and that the property in question was purchased out of the income of Ram Kumar Dixit. In paragraph 5 of the plaint, it was pleaded that Babu Ram Dixit was the uncle of Ram Kumar Dixit who had given the sale consideration for the purchase of the aforesaid properties in the name of defendant no.2.
Defendant No.1, another son of Ram Kumar Dixit, filed an application under Order 7 Rule 11 CPC seeking rejection of the plaint. The rejection of plaint is sought in view of the averment made in paragraph 5 of the plaint that Babu Ram Dixit (uncle of Ram Kumar Dixit) purchased the property in the name of defendant no.2 and the same cannot be said to be joint Hindu family property. It was averred that Ram Kumar Dixit and Babu Ram Dixit were residing separately and did not constitute a joint Hindu family. He also averred that the suit property is the self-acquired property of defendant no.2. An objection with regard to the valuation of the suit and the plaintiffs' right to claim partition during the lifetime of defendant no.2, was also raised. The plaintiffs filed their reply to the application and opposed the same.
The learned Trial Court, vide impugned order dated 25.06.2026, rejected the application. The Trial Court was of the opinion that, while deciding the application, only the plaint averments could be seen, and the averments made in plaint do not warrant rejection of the plaint. The valuation of the suit was also upheld. It was also held that, since no relief for partition is prayed for in the plaint, the objection regarding the plaintiffs' right to file the suit during the lifetime of defendant no.2 was also not acceptable. Challenging the order passed by the learned Trial Court, the present civil revision has been filed.
Mr. R.K. Soni- Advocate entered appearance on behalf of the respondents.
With the consent of learned counsel for the parties, the matter is heard finally.
The learned counsel for the applicants challenged the impugned order passed by the Trial Court primarily on two grounds. Firstly, that, in view of the averments made in paragraph 5 that Shri Babu Ram Dixit paid the sale consideration while purchasing the property in the name of defendant no.2, the suit is barred under the provisions of the Prohibition of Benami Property Transactions Act, 1988. It is his submission that such a plea is not permissible in view of Section 4 of the said Act. He further referred to paragraph 1 of the plaint, wherein the plaintiffs have averred that Ram Kumar Dixit purchased the property in the name of defendant no.2, which is also impermissible in view of the provisions of the Act of 1988. In support of his submission, he placed reliance upon the judgment of the Delhi High Court in the case of Leena Mehta vs. Vijay Myne & others, reported in 2009 SCC OnLine Del. 3577, and also upon the judgment of the Allahabad High Court in the case of Suneeta Gupta & another vs. Prem Gupta & others, reported in 2026 SCC OnLine All. 2862.
The learned counsel for the applicants also invoked the provisions of Section 14 of the Hindu Succession Act, 1956. As per his submission, since the property was purchased in the name of defendant no.2, by virtue of the provisions of Section 14 of the Act of 1956, she becomes the absolute owner of the property and, therefore, the plaintiff no.1 cannot claim any share therein. In support of his submission, he placed reliance upon Apex Court judgment in the case of Jagannathan Pillai Vs. Kunjithapadam Pillai reported in (1987)2 SCC 572, Mangal Singh & ors. vs. Smt. Rattno (dead) by LRs. & another reported in AIR 1967 SC 1786, Mallikarjunaiah Vs. Nanjaiah reported in (2009)15 SCC 756, Khateeja Bai vs. Union of India & ors. reported in 1993 MPLJ 674 and Hammat Satti vs. Mohan Satti & ors. reported in AIR 2014 Delhi 12.
On the other hand, Mr. Soni supported the impugned order passed by the Trial Court. As per his submission, while considering an application under Order 7 Rule 11 CPC, only the plaint averments are required to be seen and, in view of the averments made in the plaint, it cannot be said that the suit is barred under any provision of law. In support of his submission, he relied upon the judgment of a Coordinate Bench of this Court in Smt. Suman Sharma Vs. Smt. Priti Sharma & others, in CR No. 387 of 2023.
Considered the arguments and perused the record.
It is settled in law that, while considering an application under Order 7 Rule 11 CPC, only the plaint averments are to be seen. It has been so held by the Apex Court in the case of P.V. Guru Raj Reddy Vs. P. Neeradha Reddy, reported in (2015) 8 SCC 331, wherein the Court held in paragraph 5 as under:
5.Rejection of the plaint under Order 7 Rule 11 of CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order 7 Rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that have to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order 7 Rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial.
Thus, at this stage, while considering application under Order 7 Rule 11 PC, the Court is required to read the plaint as a whole, presuming the averments made therein to be correct, and to see as to whether the plaint is barred under any provision of law. If the cause of action disclosed is based on disputed facts, the plaint cannot be rejected. At this stage, the stand of the defendants in the written statement and/or in the application would be altogether irrelevant. In view of the aforesaid, it has to be seen as to whether by reading the plaint alone, can it be said to be barred under the provisions of the Act of 1988 and/or the Act of 1956.
It is not in dispute that the sale deeds dated 22.05.1973 and 21.04.1975 were executed in the name of defendant no.2. It is also on record that Shri Ram Kumar Dixit died at the age of more than 80 years on 13.12.2024 i.e. after about 50 years of execution of sale deeds.
In paragraph 1 & 2 of the plaint, it is pleaded by the plaintiffs that Shri Ram Kumar Dixit was in service as a teacher and, out of his own income, he purchased the suit property in the name of his wife i.e. defendant no.2. It is also averred that defendant no.2 is a housewife and had no independent source of income, and therefore, the property was purchased in her name. In this paragraph, it is averred that the suit property is undivided joint Hindu family property.
The plaintiffs have further averred in paragraph 5 of the plaint that one Babu Ram Dixit was the uncle of Shri Ram Kumar Dixit who nurtured him. The sale consideration for the properties purchased in the name of defendant no.2 was paid by Shri Babu Ram Dixit, and therefore, also the property is stated to be joint family property.
The applicants allege that the suit is barred under the provisions of Act of 1988. The benami transaction is defined under Section 2(9) of the Act of 1988, which reads 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 -
(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
(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; or
(D)a transaction or an arrangement in respect of a property where the person providing the consideration is not traceable or is fictitious.”
Thus, by virtue of the provisions of Section 2(9)(A)(iii), the property purchased in the name of the wife has been kept out of the definition of a benami transaction. Since, the property was purchased on 22.05.1973 and 21.04.1975 i.e. before coming into force of the Act of 1988, as also prior to the amendment of the Act on 01.11.2016, the unamended provisions of Section 3 would be applicable. Section 3(2) reads as under:
3.Prohibition of benami transactions.- (1) No person shall enter into any benami transaction.
(2)Nothing in sub-section (1) shall apply to -
(a)the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter; xxx xxx xxx”
It is thus seen that the property purchased in the name of the wife does not come under the definition of a benami transaction. Further, under Section 3(2)(a), there is a presumption that the property purchased in the name of the spouse or unmarried daughter has been purchased for the benefit of the wife or the unmarried daughter. This presumption is, however, rebuttable in law. Thus, once the presumption is rebuttable, it becomes an issue of fact, which can be decided by way of evidence.
The view of this Court finds support from the judgment of the Apex Court in the case of Valliammal Vs. Subramaniam, reported in (2004)7 SCC 233, wherein the Court held in paragraphs 12 & 13 as under:
12.There is a presumption in law that the person who purchases the property is the owner of the same. This presumption can be displaced by successfully pleading and proving that the document was taken benami in the name of another person for some reason, and the person whose name appears in the document is not the real owner, but only a benami. Heavy burden lies on the person who pleads that the recorded owner is a benami-holder.
13.This Court in a number of judgments has held that it is well established that burden of proving that a particular sale is benami lies on the person who alleges the transaction to be a benami. The essence of a benami transaction is the intention of the party or parties concerned and often, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. Refer to Jaydayal Poddar v. Bibi Hazra [(1974) 1 SCC 3] , Krishnanand Agnihotri v. State of M.P. [(1977) 1 SCC 816 : 1977 SCC (Cri) 190] , Thakur Bhim Singh v. Thakur Kan Singh [(1980) 3 SCC 72] , Pratap Singh v. Sarojini Devi [1994 Supp (1) SCC 734] and Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S. Shah [(1996) 4 SCC 490]. It has been held in the judgments referred to above that the question whether a particular sale is a benami or not, is largely one of fact, and for determining the question no absolute formulas or acid test, uniformly applicable in all situations can be laid. After saying so, this Court spelt out the following six circumstances which can be taken as a guide to determine the nature of the transaction:
“(1)the source from which the purchase money came;
(2)the nature and possession of the property, after the purchase;
(3)motive, if any, for giving the transaction a benami colour;
(4)the position of the parties and the relationship, if any, between the claimant and the alleged benamidar;
(5)the custody of the title deeds after the sale; and
(6)the conduct of the parties concerned in dealing with the property after the sale.”
In view of the aforesaid legal position, at this stage, it cannot be said that the plea taken by the plaintiffs is barred under the provisions of the Act of 1988. It is a matter of evidence as to whether the property was purchased for defendant no.2 or was for the benefit of family. The applicability of provisions of Act of 1988 is also a debatable issue inasmuch as the transactions in question pertains to period prior to coming into force of the said Act.
So far as the conflicting pleas taken in paragraphs 1 & 5 of the plaint are concerned, the consequence thereof would be considered by the learned Trial Court while deciding the suit. However, the suit itself cannot be rejected at the threshold on the ground of conflicting pleadings. Thus, the objection regarding the suit being barred by Act of 1988 is not acceptable and is accordingly rejected.
Another ground raised by the counsel for the applicants is based upon Section 14 of the Act of 1956, which reads as under:
14. Property of a female Hindu to be her absolute property.
(1)Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.— In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2)Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.
The term “any property possessed by a female Hindu” does not indicate actual physical possession of the property. It refers to the property which a female Hindu is entitled to possess in law.
The Apex Court has considered sub-section (1) & (2) of Section 14 of the Act of 1956 in the case of V. Tulasamma vs. Sesha Reddy reported in (1977)3 SCC 99, and held as under:
"68.....This Court has also in a series of decisions given a most expansive interpretation to the language of sub-section (1) of Section 14 with a view to advancing the social purpose of the legislation and as part of that process, construed the words “possessed of” also in a broad sense and in their widest connotation. It was pointed out by this Court in Gummalapura Taggina Matada Kotturuswami v. Satre Veerayya [AIR 1959 SC 577 : 1959 Supp 1 SCR 968 : 1959 SCJ 437] that the words “possessed of” mean “the state of owning or having in one's hand or power”. It need not be actual or physical possession or personal occupation of the property by the Hindu female, but may be possession in law. It may be actual or constructive or in any form recognised by law. Elaborating the concept, this Court pointed out in Mangal Singh v. Rattno [AIR 1967 SC 1786 : (1967) 3 SCR 454 : (1968) 1 SCJ 468] that the section covers all cases of property owned by a female Hindu although she may not be in actual, physical or constructive possession of the property, provided of course, that she has not parted with her rights and is capable of obtaining possession of the property. It will, therefore, be seen that sub-section (1) of Section 14 is large in its amplitude and covers every kind of acquisition of property by a female Hindu including acquisition in lieu of maintenance and where such property was possessed by her at the date of commencement of the Act or was subsequently acquired and possessed, she would become the full owner of the property."
Sub-section (2) then carves out an exception by providing that sub-section (1) shall not apply to any property acquired by female Hindu, for the first time and not by way of pre-existing right, by way of gift, will or any other instrument or under a decree or order of a civil court or under an award wherein a restricted right is given to her. The Apex Court in V. Tulasamma (supra), dealt with this provision as under:
"It will be seen from these observations that even though the property was acquired by Subhrai Bai under the instrument of partition, which gave only a limited interest to her in the property, this Court held that the case fell within sub-section (1) and not sub-section (2). The reason obviously was that the property was given to Subhrai Bai in virtue of a pre-existing right inheriting in her and when the instrument of partition provided that she would only have a limited interest in the property, it merely provided for something which even otherwise would have been the legal position under the law as it then stood. It is only when property is acquired by a Hindu female as a new grant for the first time and the instrument, decree, order or award giving the property prescribes the terms on which it is to be held bv the Hindu female, namely, as a restricted owner, that sub-section (2) comes into play and excludes the applicability of sub-section (1). The object of sub-section (2) as pointed out by this Court in Badri Pershad case while quoting with approval the observations made by the Madras High Court in Rangaswami Naicker v. Chinnammal [AIR 1964 Mad 387 : ILR (1964) 1 Mad 570 : 77 Mad LW 9] is “only to remove the disability of women imposed by law and not to interfere with contracts, grants or decrees etc. by virtue of which a woman's right was restricted” and, therefore, where property is acquired by a Hindu female under the instrument in virtue of a pre-existing right, such as a right to obtain property on partition or a right to maintenance and under the law as it stood prior to the enactment of the Act, she would have no more than limited interest in the property, a provision in the instrument giving her limited interest in the property would be merely by way of record or recognition of the true legal position and the restriction on her interest being a “disability imposed by law” would be wiped out and her limited interest would be enlarged under sub-section (1). But where property is acquired by a Hindu female under an instrument for the first time without any pre-existing right solely by virtue of the instrument, she must hold it on the terms on which it is given to her and if what is given to her is a restricted estate, it would not be enlarged by reason of sub-section (2). The controversy before us, therefore, boils down to the narrow question whether in the present case the properties were acquired by the appellant under the compromise in virtue of a pre-existing right or they were acquired for the first time as a grant owing its origin to the compromise alone and to nothing else."
In view of the aforesaid pronouncement of law, if the facts of this case are seen, it is gathered that the property in question was acquired by defendant no.2, not by way of her pre-existing right but by way of sale deeds. As discussed in relation to Act of 1988, if it is found that the property was purchased by Ram Kumar Dixit in the name of defendant no.2 for the benefit of the family, then defendant no.2 will have only a restricted share in the property. If that be so, she would become the absolute owner of her restricted share in the property by virtue of Section 14 of the Act. Therefore, at this stage, it cannot be said that the defendant no.2 is the owner of entire property only because sale deeds are executed in her favour. Consequently, on this ground also, the plaint cannot be rejected at this stage.
The learned counsel for defendants placed heavy reliance upon Delhi High Court judgment in the case of Leena Mehta & Hammat Satti (supra) and also upon the judgment of the Allahabad High Court in the case of Suneeta Gupta (supra). However, for the reasons assigned hereinbefore this Court respectfully do not agree with the view taken by Delhi High Court and the Allahabad High Court. Infact, the Delhi High Court in the case of Anita Anand vs. Gargi Kapur & ors. reported in 2018 SCC Online Del. 11372 has taken a different view holding as under:
"23.In Hemant Satti v. Mohan Satti, (2015) 2013 DLT 130, the Hon'ble Court was faced with a similar question and it has harmonized the provision of Section 14(1) of the Hindu Succession Act with Section 3(2) of the Prohibition of Benami Property Transactions Act, 1988 (as it existed before the 2016 amendment). In paragraph 16 of the said judgment, the Court has held that a challenge to the right of a woman under Section 14 of the HSA is entertainable if it is proved that the property purchased in the name of a woman was not for her benefit.
By amending the old Act by the Benami Transactions (Prohibition) Amendment Act, 2016, the legislators while recognizing and maintaining the said exception contained in Section 3(2) and 4(3) of the Old Act, for abundant clarity, by virtue of Section 2(9)(A)(b)(ii) and Section 2(9)(A)(b)(iii) of the amended Act, specifically excluded transactions of the nature pleaded by the plaintiff from the very definition of Benami Transactions. Given this position and there not being any disharmony between the provisions of the Old Act and the amended Act insofar as the aforesaid exception is concerned, the ration decendi of the Hemant Sati case (supra) will, apply proprio vigore, to cases covered by the amended Act as well. In view of the above, the argument of the defendants the wife of the father of the parties had become the absolute owner of the suit property when the same was purchased in her name by virtue of Section 14 of the Hindu Succession Act, 1956 would be subject to trial."
In humble opinion of this Court, the view taken in Anita Anand (supra) is the correct view.
The learned counsel for defendants also relied upon Apex Court judgments in the case of Jagannathan Pillai, Mangal Singh, Mallikarjunaiah (supra), and the judgment of this Court in Khateeja Bai (supra). However, none of these cases relates to consideration of issue at the stage of Order 7 Rule 11 CPC and have considered the issue after the trial. Therefore, the defendants do not get any assistance from these judgments.
The rejection of the application under Order 7 Rule 11 CPC by the learned Trial Court is thus found to be legal and valid, and the same does not warrant interference by this Court. Consequently, the civil revision fails and is dismissed.