High Court of Patna

Gauri Devi Vs. Bal Mukund Prasad Gupta

MANU/BH/1562/2018

01.08.2018

Civil

No person has right to enter into Benami transaction, except if, property is purchased in the name of wife or unmarried daughter

In instant case, Opposite Party filed title suit against the Petitioner in respect of disputed land for declaration that the Petitioner is Farzidar and Benamidar of disputed land and also for declaration of his right, title and possession over the suit land. The Petitioner appeared in Title suit and filed petition under Order VII rule 11 read with section 151 of the Code of Civil Procedure, 1908 (CPC) praying therein for rejection of plaint of the aforesaid Title suit on the ground that, the aforesaid title suit is hit by section 4 (2) of the Benami Transactions (Prohibition) Act, 1988.

The aforesaid petition filed under Order VII Rule 11 of CPC was rejected by the concerned Court vide order which was challenged by the Petitioner before present court by filing Civil Revision. However, the aforesaid Civil Revision was, too, dismissed vide order holding that, the question as raised by the Petitioner for rejection of the plaint could not be a ground for passing order under Order VII Rule 11 of CPC and the question could be decided only in course of trial after taking evidence of both parties.

Admittedly, opposite party brought title suit against the Petitioner for declaration that, the Petitioner is Farzidar and benamidar of the disputed property and also for declaration of his right, title and possession over the suit land. The opposite party, specifically, pleaded in the aforesaid Title suit that, the Petitioner is his wife and he had purchased the suit land in the name of the petitioner out of love and to save the suit property from ceiling proceeding.

As per Section 3(2)(a) of the Benami Transactions (Prohibition) Act, 1988, no person has right to enter into Benami transaction except if property is purchased in the name of wife or unmarried daughter. Furthermore, if a purchase is made in the name of wife or unmarried daughter then, in that event, it would be presumed that property has been purchased for the benefit of wife or unmarried daughter unless contrary is proved. Furthermore, no suit, claim or action to enforce any right in respect of Benami property can be made and similarly, no defence based on any right in respect of any property held Benami is permitted.

The Hon'ble Apex Court of the country has already set at rest that the provision of the Benami Transactions (Prohibition) Act, 1988 is perspective in nature and admittedly, in the present case, disputed land was purchased by opposite party in the name of the Petitioner much prior to coming into force of the above stated Benami Transactions (Prohibition) Act, 1988. However, it is specifically, pleaded by opposite party in the plaint that, he had purchased the aforesaid property in the name of his wife (petitioner) out of love and, therefore, unless contrary is proved, it shall be presumed that, opposite party had purchased the suit land in the name of the Petitioner for her benefit and, therefore, it has rightly been observed in the impugned order that, point raised by the Petitioner in her petition filed under Order VII Rule 11 of CPC can only be decided after taking evidence of both parties and, there is no apparent error on the face of the record which requires review of the impugned order. Review petition dismissed.

Tags : Declaration Benami Transactions Right

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