@JUDGMENTTAG-ORDER
B.S. Patil, J.@mdashRespondents 1 & 2 herein have filed O.S. No. 7967/2011 on the file of the XXII Additional City Civil & Sessions Judge, Bengaluru, seeking a decree of partition and separate possession of their 1/4th share in suit schedule A & B immovable properties and schedule C movables. They have also sought for a declaration that the registered Will dated 28.06.2007 executed by late Seeta Venkatesh, mother of plaintiffs and defendants 1 & 2 in favour of defendant Nos. 3 & 4 was illegal, bogus, etc. In the said suit, defendants 1 to 4 have filed an application under Order VII Rule 11(d) read with Section 9 CPC praying for rejection of the plaint. The said application has been dismissed by order dated 07.02.2014. Aggrieved by the same, the present revision petition is filed.
2. The main contention urged by the learned counsel for the petitioners Sri Amar Kumar is that as per the very plaint averments made in paragraphs 5 and 8 of the plaint late D. Venkatesh, father of plaintiffs and defendants 1 & 2 acquired A & B schedule properties in the names of defendants 5 & 6, benami. Therefore, in terms of Section 4 of the Benami Transactions (Prohibition) Act, 1988 (for short, the Act), no suit 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 the said property and therefore, as the suit was clearly barred under Section 4, the plaint was liable to be rejected.
3. This argument is refuted by the learned counsel appearing for the respondents Sri Ravishankar by contending that the transaction has been entered into prior to 1988. It is urged by him that there is no prohibition under the Act for benamidar to transfer the property in favour of the real owner as the prohibition is only against the benamidar and the person claiming through him. He further points out that indeed an issue is framed by the Court below covering this aspect of the matter also which would be subject matter of trial and question of rejection of the plaint as barred under Section 4 would not arise at this stage. He also points out that the suit itself is of the year 2011 and the matter is at the stage of cross-examination of P.W. 1 and therefore, there was no justification for the defendants to seek rejection of the plaint at such stage instead of leading evidence.
4. Having heard the learned counsel for both parties, I find that in the plaint averments, plaintiffs have stated that their father late D. Venkatesh acquired suit Schedule A & B properties in the names of defendants 5 & 6 benami and it was D. Venkatesh who paid all the amounts due and payable to Karnataka Housing Board. This is not a suit filed by D. Venkatesh or persons claiming under D. Venkatesh against defendants 5 & 6 or persons claiming under defendants 5 & 6 seeking to enforce any right in respect of the property held benami.
5. As per Section 4 of the Act what is barred is a suit or claim to enforce any right in respect of property held benami against the person in whose name the property is held or against any other person. The intention of the Legislature in enacting the Benami Transactions (Prohibition) Act, 1988 (Act 45/1988) was that as such benami transactions abused and defrauded public revenues and creditors, they had to prevented. Indeed the Parliament for the first time intervened in 1976 when it introduced Section 281A of the Income Tax Act, 1961 by barring institution of suits in relation to benami properties. The Law Commission in its 57th report made certain recommendations and for implementing the said recommendations, an Ordinance was promulgated. Subsequently, after the Law Commission further examined the subject and submitted its report, a Bill was introduced to replace the Ordinance and the same was passed vide Act 45/1988. Under the Act, as per Section 3, benami transaction is prohibited and whoever enters into any benami transaction is made punishable with imprisonment which may extend to 3 years or with fine or with both.
6. In this case, we are not concerned with any benami transaction by the plaintiffs, nor is there any involvement of the defendants in any such transaction. The plaintiffs are not seeking to enforce any right derived under the alleged benami transaction against the real owners or persons claiming through them. Indeed, both the plaintiffs and defendants 1 & 2 claim rights under their mother Seeta Venkatesh, in whose favour the property has been sold on 27.10.1991. Incidentally, the mother of the plaintiffs and defendants 1 & 2, Seeta Venkatesh was none other than the sister of defendant No. 5. Insofar as defendant No. 6 is concerned, he is said to have transferred the B schedule property in the name of the 1st defendant with the consent of other members of the family and the property continued to be joint family property wherein plaintiffs and defendants 1 & 2 had 1/4th share. It is thus clear that the suit is one for partition seeking division of the joint family properties. Neither the defendants, nor the plaintiffs are alleged to have entered into any benami transaction. The so called benamidars have themselves sold the property in favour of Seeta Venkatesh as regards suit schedule A property and defendant No. 1 as regards suit schedule B property. In such circumstances, the Court below was right and justified in holding that bar of Section 4 had no application to the facts and circumstances of the case and the plaint could not be rejected on that ground. In any event, the Court below has taken care to also observe that as an issue has been framed in that connection, the matter would be examined at some length after the trial.
7. Learned counsel for the petitioner has placed reliance on the judgment in the case of R. RAJAGOPAL REDDY (DEAD) BY L.Rs. & OTHERS v. PADMINI CHANDRASEKARAN (DEAD) BY L.Rs. - AIR 1986 SC 238. The said judgment pertains to the question whether provisions under Sub-sections (1) & (2) of Section 4 were retrospective. The fact situation that are presented in the instant case are totally different and therefore, the said judgment has no application.
8. For the reasons stated above, this revision petition is dismissed. It is made clear that the observations made in this order shall not influence the trial Court in considering the issues framed touching the merits of the case.
