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Judgment
ORDER
The present revision petition has been filed under Section 115 of the Code of Civil Procedure assailing the order dated 22.5.2024 passed by I Civil Judge, Junior Division, Jabalpur, in Civil Suit No.643A/2023 by which the application filed by the petitioners defendants under Order VII Rule 11 CPC has been dismissed.
It is contended by counsel for the petitioner that the subject matter of the suit was purchased in the name of minor son of plaintiff no.1 and husband of defendant no.1 and father of other defendants vide registered sale-deed dated 6.10.1977, when he was 12 years of age. It is submitted that he attained majority in 1983 and as per Article 60 of the Limitation Act, the suit ought to have been filed within 3 years from the date of attaining majority.
It is further submitted that under Section 4 of the Prohibition of Benami Transactions Act, 1988, (hereinafter referred to as 'the Act of 1988') there is a prohibition of the right to recover the property held Benami by the person. It is submitted 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 real owner of such property. As the suit has been filed by the father who has averred to have purchased the subject matter, i.e. property in question in the name of minor son is prohibited by Section 4 to institute a suit claiming himself to be a real owner of the said property. To bolster his submission, the learned counsel for the petitioner has placed reliance on the order passed by a coordinate Bench of this Court in the case of Mohd. Shakeel Vs. Husna Bano, 2017(2) MPLJ 167 .
Per contra, learned counsel for the respondents has submitted that in the plaint, it is categorically stated that the property in question was purchased in the name of the minor for the benefit of the entire family from the income of the plaintiff and paid by the plaintiff. The son of the plaintiff No.1 died in the year 2023. Thereafter, the legal representatives of the son became hostile with the family. There was a family arrangement between the family members in the year 1989 by which the subject matter of the suit was also distributed amongst the family members, showing the actual nature of the property not being a Benami, but it was purchased by the father, i.e. plaintiff No.1 in the name of minor son for the interest of the entire family. Therefore, it is not covered under Section 4 of the Act of 1988. It is further submitted that limitation for filing a suit for declaration is three years as per Article 58 of the Limitation Act. Article 60 of the Limitation Act is not applicable in the present case at hand as the respondent/plaintiff is not challenging the validity of the sale or seeking cancellation of the sale deed. In fact, it is a declaration that the property held in the name of the son of the plaintiff No.1 was for the interest of the entire family and, therefore, it cannot be said to be Benami and the suit is not barred by limitation. The learned court below has rightly rejected the application submitted by the defendants/petitioners under Order 7 Rule 11 of CPC as the disputed question of facts are involved which cannot be adjudicated at the stage of Order 7 Rule 11 CPC and, therefore, prayed that no interference is called for under Section 115 of CPC. To bolster his submission, the learned counsel for the respondents has placed reliance on the judgment of the Hon’ble Apex Court passed in the case of Pushpalata v. Vijay Kumar, 2022 SCC OnLine SC 1152.
Heard learned counsel for the parties and perused the record.
From perusal of the plaint, it is revealed that the suit for declaration, permanent injunction with the relief that the plaintiff be declared equal share holder of 1/3rd share in the disputed property on the basis of family arrangement dated 26.11.1989 and the respondents who are the legal representatives of the deceased son of the respondent No.1/plaintiff be restrained from alienating the suit property. It is averred in the plaint that the property in question (subject matter of the suit) was though purchased in the name of minor son of the plaintiff by the plaintiff vide registered sale deed dated 06.10.1977 of which consideration was paid by respondent/ plaintiff no.1. Thereafter, the said property was remained in the joint possession of the family for the interest of the family and vide family arrangement dated 26-11-89, the said property was distributed amongst the members of the family. As per the family arrangement, the plaintiff holds 1/3rd share in the suit property. After the death of son of the respondent No.1/plaintiff in March 2023, the legal representatives of the deceased son/defendants/ petitioners herein have denied the shares of the respondents/plaintiffs and as such cause of action arose in favour of respondents/plaintiffs and immediately thereafter the suit was filed on 06.07.2023.
It is contended by learned counsel for the petitioners that as the averment has been made in regard to purchase of the subject matter of the suit in the name of the deceased son of the respondent plaintiff, it is a benami transaction and a suit is prohibited under section 4 of the Act of 1988.
Section 2(9) of the Act of 1988 provides a definition of benami transaction which reads as under :-
2....
(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—
(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 individual and the consideration for such property has been provided or paid out of the known sources of the individual;
From perusal of the definition and the exception which has been carved out, it is discerned that 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 is not covered under the benami transaction.
Admittedly, the subject matter of the suit was purchased in the name of the minor son of the respondent No.1/plaintiff by the respondent No.1/plaintiff. It is also averred that the consideration was paid by the respondent No.1/plaintiff. It is also averred that possession of the property remained with the family of the respondent No.1/ plaintiff. The property was purchased for the interest of the family. There was a family arrangement in the year 1989 by which the said property was distributed amongst the members of the family. Therefore, from the perusal of the averments of the plaint, it is crystal clear that the suit has been filed for declaration of the rights of the respondents/plaintiffs in the suit property which was purchased in the name of the deceased son of the respondent No.1/ plaintiff by the respondent no.1/ plaintiff. Therefore, applying section 4 read with section 2(9)(iii) of the Act of 1988, this court is of the considered opinion that the transaction does not fall within the definition of benami transaction and, therefore, suit is not barred by section 4 of the Act of 1988.
The Hon’ble Apex Court in the case of Pushpalata (supra) has held as under :-
"22.The court's approach in cases, where the claim is that a property or set of properties, are benami, was outlined, after considering previous precedents, in Binapani Paul v. Pratima 10 Ghosh , where this court cited with approval extracts from Valliammal v. Subramaniam (supra):
“47.Burden of proof as regards the benami nature of transaction was also on the respondent. This aspect of the matter has been considered by this Court in Valliammal (D) By LRS. v. Subramaniam [(2004) 7 SCC 233 ] wherein a Division Bench of this Court held:
“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. Ref to 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. (Jaydayal Poddar v. Bibi Hazra [(1974) 1 SCC 3], SCC p. 7, para 6)
14.The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless, the source from where the purchase money came and the motive why the property was purchased benami are by far the most important tests for determining whether the sale standing in the name of one person, is in reality for the benefit of another. We would examine the present transaction on the touchstone of the above two indicia. *** *** ***
18.It is well settled that intention of the parties is the essence of the benami transaction and the money must have been provided by the party invoking the doctrine of benami. The evidence shows clearly that the original plaintiff did not have any justification for purchasing the property in the name of Ramayee Ammal. The reason given by him is not at all acceptable. The source of money is not at all traceable to the plaintiff. No person named in the plaint or anyone else was examined as a witness. The failure of the plaintiff to examine the relevant witnesses completely demolishes his case.””
From the above enunciation of law, it is also deciphered that if the suit property is purchased in the name of any other individual and when the guideline laid down by the Hon’ble Apex Court has been applied, it is found that the plaint averment discloses that the suit property was purchased in the name of the minor son, but for the welfare and interest of the family for which a family arrangement was also made.
Therefore, in the considered opinion of this court, the suit is not barred under section 4 of the Act of 1988. However, as the averments have been made in the plaint which have been denied by the defendants, therefore, the same is left to be decided by the court below after considering the evidence led by the parties.
The second question which has been raised by the counsel for the petitioners is that the suit is barred by limitation.
From the perusal of the pleadings of the parties, it is found that the suit has been filed for declaration of the share of the respondents/ plaintiffs in the subject matter of the suit, therefore, Article 60, in any case, would not be applicable in the case in hand. Article 58 of the Limitation Act provides 3 years of limitation for filing a suit for declaration from the date of cause of action arises in the matter.
From the perusal of the averment, it is found that after the death in the 2023, the cause of action arose in favour of respondents/ plaintiffs to file the present suit when the legal representatives of the deceased son became hostile and denied the share of the respondents/ plaintiffs.
Otherwise also, the Hon’ble Apex Court in the case of P. Kumarakurubaran v. P. Narayanan, 2025 SCC OnLine SC 975 held that the question of limitation is a mixed question of fact and law, as the parties have made averment indicating the period of limitation which is to be decided by leading evidence. The Honb'le Apex Court has held as under :-
13.In this backdrop, the approach of the High Court in reversing the well-reasoned order of the trial Court warrants interference. The trial Court had rightly held that the issue of limitation necessitated adjudication upon evidence, particularly in view of the appellant's assertion that the Power of Attorney executed by him did not confer any authority upon his father to alienate the suit property and that the impugned transaction came to his knowledge only at a much later point in time. In such circumstances, the determination of limitation involved disputed questions of fact that could not be summarily decided without the benefit of trial. The High Court, however, proceeded to reject the plaint solely on a prima facie assumption that the suit was barred by limitation, without undertaking any examination as to whether the plea regarding the date of knowledge was demonstrably false or inherently improbable in light of the record. In the opinion of this Court, such an approach amounts to an error of law and constitutes a misapplication of the well-established principles governing the exercise of power under Order VII Rule 11 CPC. For the same reasons, the decisions relied upon by the learned counsel for the respondents are inapplicable, being factually distinguishable.
Therefore, any opinion rendered by this court at this stage will prejudice the interest of either parties, therefore, the same is left for consideration by the learned court below. The parties are free to agitate these questions before the court below by adducing evidence in support thereof. Therefore, on the basis of above analysis of law and in view of the law laid down by the Hon’ble Apex Court in the case of Pushpalata (supra) and P. Kumarakurubaran (supra) , this court does not find any irregularity, illegality much less jurisdictional error in the impugned order.
Petition sans merit and is hereby dismissed.