S.N. Hussain, J.
1. Heard learned counsel for the parties.
2. Petitioners are defendants of Title Suit No. 134 of 2003 which was filed by Opposite party Nos. 1 to 4 for partition of their share in the suit land. In the said suit it was claimed that Ganouri Mahto died in the year 1979 leaving behind two sons, Basudeo Prasad and Brahmdeo Singh, out of whom Basudeo Prasad died in the year 1988 leaving behind the defendants as his heirs whereas the plaintiffs are the other brother Brahmdeo Pd. Singh and his sons and grand sons.
3. Defendant-petitioners are aggrieved by order dated 19.7.2004 passed in the aforesaid suit by which the learned Subordinate Judge-VI, Patna dismissed their petition under Order VII, Rule 11 of the Code of Civil Procedure (hereinafter referred to as the Code for the sake of brevity) for rejecting the plaint of the suit.
4. Learned counsel for the petitioners submitted that plot numbers 224 and 889 as also 990 were purchased by registered deeds dated 15.9.1956 and 22.7.1965 by Mostt. Manorama, who was not a member of the coparcenery of Ganouri Mahto, Basudeo Prasad and Brahamdeo Pd. Singh and the said property having been purchased from her Stridhan was never a joint property, although, she was the wife of Basudeo Prasad. He further stated that in fact suit for declaration of title over the property of Mostt. Manorama had been filed in the garb of a Partition suit for grabbing the same. He also averred that if the suit property is held to be a joint family property then it has to be held that the sale was a Benami transaction which the Court can not do in view of the provision of Benami Transaction (Prohibition) Act, 1988 (hereinafter referred to as the Act for the sake of brevity). He further claimed that the only other option in case the property of a stranger to co-parcenery was claimed to be joint family property, was to challenge the title of the stranger and claim recovery of possession in a Title Suit on payment of ad-valorem Court fee, but in this case neither any relief has been claimed nor any ad-valorem Court fee has been paid in the suit.
5. Learned counsel for the petitioners also submitted that it is the dexterity of the drafter of the plaint to get the title declared and possession recovered even without paying any Court fee in accordance with law by way of filing such a Partition Suit. In this regard, the learned counsel for the petitioners relied upon a decision of this Court in case of Mr. Rupia v. Bhattu Mahton and Ors. reported in AIR 1944 Patna 17, and another decision in case of Kaulasan Singh and Ors. v. Ramdut Singh and Ors. reported in AIR 1951 Patna, 633. With respect to the question of bar as provided under the Act is concerned, he relied upon another decision of this Court in case of Rameshwar Mistry and Anr. v. Babulal Mistry reported in : AIR1991Pat53 , in which it was held that acquisition of property by joint family in the name of wife of a co-parcener is Benami transaction prohibited under Section 4 of the Act.
6. It was further averred by the learned counsel for the petitioners that Hon'ble Apex Court in case of R. Rajagopal Reddy (dead) by L.Rs. and Ors. v. Padmini Chandrasekhran (dead) by L.Rs. reported in : (1995)124CTR(SC)311 , has held that the bar provided under the Act is with respect to the filing of the suit and not with respect to the transaction in question, hence no relief in a suit filed after the coming into force of the Act can be granted on the basis of any transaction of any date, even prior to the coming into force of the Act. He also claimed that, although the word Benami is not used in the plaint, but all other ingredients of Benami transaction are present therein. It is also stated by the learned counsel for the petitioners that the heirs of Manorama Devi sold some of the lands in suit in the year 1999 on the basis of her purchase by the deed in question but neither any objection was raised by the plaintiffs, nor they impleaded the purchasers as parties to the suit. Hence, he stated that the impugned order is illegal, arbitrary and perverse and is fit to be set aside.
7. On the other hand, learned counsel for the opposite parties submitted that in the plaint neither the word Benami nor its ingredients were mentioned anywhere; as the purchases were made by the Karta of the family of Ganouri Mahto, who was none-else than the father-in-law of Mostt. Manorama. He further stated that Ganouri Mahto was the Karta while Basudeo Prasad was the de- facto Karta of the family and both of them paid consideration amount out of the joint family fund due to which the said lands were through out been mutated in the name of joint family and they regularly paid rent and obtained rent receipts. Learned counsel for the opposite parties also averred that there was no dispute during the life time of Basudeo Prasad in the joint management and enjoyment of the said properties by the family but after his death the problems arose and hence there was necessity of filing a Partition Suit.
8. Learned counsel for the opposite parties further stated that since the deed in question was of a date much prior to the coming into force of the Act in 1988 and no claim for getting it declared as a benami transaction having been raised in the plaint, there was neither any occasion for payment of ad-valcrem Court fee nor there was any question of bar of the Act. He also averred that Court fee matter was not raised by the defendants in their objection, hence neither there was any occasion for the learned Court below to give any finding in that regard nor even the requirements of the provision of Order VII, Rule 11 of the Code, under which the defendants raised their objection, was fulfilled. It was also submitted by him that the learned Lower Court considered the entire matters in issue and rightly rejected defendant's objection as the issues raised could not have been considered at this stage under the said provision. Hence, he claimed that the impugned order of the learned Court below is legal and proper and requires no interference.
9. After hearing learned counsel for the parties and after perusing the materials on record and also after considering the various provisions of law and case laws, two provisions of the Benami Transactions (Prohibition) Act are necessary to be quoted here :
Section 3 Prohibition of Benami Transaction-
(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.
(b) the securities held by a-
(i) depository as a registered owner under Sub-section (1) of Section 10 of the Depositories Act, 1996
(ii) participant as an agent of a depository
(3) whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under this Section shall be non-cognizable and bailable. Section 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 property.
(2) No defence 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; of
(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 a capacity.
10. There had been various views with respect to the nature, effect and implication of said two provisions of the Act. The Hon'ble Apex Court in its decision in case of Mithilesh Kumari and Anr. v. Prem Behari Khare reported in : [1989]177ITR97(SC) , has held that the Act was retro-active if the matter was subjudice at the time of coming into force of the Act on 5.9.1988 at any stage and hence the suit, if filed even before, was not maintainable in view of retroactive operation of the Act. But the said decision was over-ruled by a Larger Bench of the Hon'ble Apex Court in case of R. Rajagopal Reddy (supra), in which it was finally held by the Hon'ble Apex Court that Section 3 of the Act was prospective in nature as the prohibition for entering into benami transaction came into force on 5.9.1988, when new liability or new offence was provided, and that even Section 4 of the Act does not apply retrospectively. It was also held that even for a transaction prior to coming into force of the Act, no suit or written statement can be filed after the said date i.e. 5.9.1988, raising the plea of benami transaction.
11. The preamble of the Act clearly states that the enactment was to prohibit benami transaction and right to recover properties benami or incidental thereto, hence, it was enacted to efface the then existing right of the real owner of the property to buy benami. Thus, a suit or claim to enforce such a right after coming into operation of Section 4(1) of the Act shall not lie as legislative intention is clear from the words used in that Section i.e. no such claim suit or action shall lie which lead to only one conclusion that no such suit, claim or action shall be permitted to be filed or entertained or attempted to the portals of any Court for seeking such a relief after coming into force of the said provision. In the instant case, the deeds in question are of the years 1956 and 1965 i.e. much prior to the coming into force of the Act. But the suit was filed much thereafter in the year 2003. Hence, neither the plaintiffs nor the defendants can be legally allowed to raise the question of benami transaction due to the bar provided under Section 4(1) of the Act and the suit has to be decided on its own merits.
12. By the impugned order petition dated 2.12.2003 (Annexure-4) filed by the defendant No. 4 (one of the petitioners), for rejecting the plaint barred under the law or for deciding the question of maintainability first, was rejected. The provision for rejection of plaint is provided only under Order VII Rule 11 of the Code which reads as follows :
Rule 11-Rejection of plaint.-The plaint shall be rejected in the following cases :
(a) where it does not disclose a cause action;
(b) where the relief claimed is undervalued, and the plaintiff on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon a paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provision of Rule 9.
13. On the other hand, the question of deciding the issue of maintainability as a preliminary issue is provided under Order XIV, Rule 2 of the Code which reads as follows :
Rule 2-Court to pronounce judgment on all issues.-
(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall subject to the provisions of Sub-rule (2), pronounce judgment in all issues.
(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof on an issue of law only, it may try that issue first if that issue relates to-
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit postpone the settlement of the other issues until after that issue has been determined, may deal with the suit in accordance with the decision on that issue.
14. So far the plea of rejection of plaint is concerned, it can be done only as per the aforesaid provision of Order VII Rule 11 of the Code. But here in the instant case, neither the question of cause of action, nor the question of valuation of the suit nor the Court fees, nor the question of duplicate plaint, nor the question of non-compliance of Rule 9 had been raised by the said defendant in her said petition and the only plea raised therein was with respect to bar of law provided under the Act.
15. So far the question of deciding the case of preliminary issue is concerned, it can be done only under the aforesaid provision of Order XIV Rule 2 of the Code. But in the instant case the said defendants had not challenged the jurisdiction of the Court nor did she show that the suit can be legally disposed of on an issue of law without requiring any evidence and have raised the only aforesaid issue of the bar to the suit under the Act.
16. In the aforesaid circumstances, the only question which remains for consideration is that whether the suit can proceed in view of the bar as provided under Section 4(1) of the Act. But the petition of the said defendant is not clear as to whether she wants to get the plaint rejected or she wants the said question to be decided as a preliminary issue. However, the defendants- petitioners have pleaded that if by dexterity of drafter the plaintiff avoids some words in the plaint which would make relief of declaration consequential upon other relief requiring ad-valorem Court fees, the plaintiff has to pay ad-valorem Court fee as it is dependent not on the form of pleadings but on real substance of reliefs claimed.
17. Learned counsel for the defendants-petitioners has further submitted that it is well settled that if acquisition of property is made by the joint family in the name of the wife of the coparcener, it would constitute benami transaction which is prohibited under Section 4(1) of the Act and can not be saved by Section 3(2) of the Act. But these questions are not relevant to the facts and circumstances of the case as the plea of valuation and Court fees had not been raised by the defendants in their petition and hence there was no occasion for the learned Court below nor there is any occasion for this Court to consider the said aspect of the matter specially when the form of pleading and the real substance of relief claimed has to be considered by the learned Court below at the time of final hearing of the suit.
18. So far the question of acquisition of property by the joint family in the name of wife of a coparcener is concerned, it would be relevant to note that the plaintiffs in their plaint had neither used the word benami nor any of the ingredients find place therein. Furthermore the plea of benami has not been raised by the plaintiffs in their plaint, rather it has been raised by the defendants in their written statement in the suit filed after 1988. Hence the question arises as to whether the bar provided under the Act would be applicable to the claim of the plaintiffs or to the objection raised by the defendants in the aforesaid circumstances.
19. All these issues can only be decided after considering the evidence adduced by the parties at the time of final hearing of the suit and these are not matters which can be decided at the initial stage either under Order VII Rule 11 or under Order XIV Rule 2 of the Code. In any view of the matter, it is yet to be proved in the instant case by valid evidence that whether the ingredients of benami transactions were present and the property in question was purchased benami and that at the time of the said purchase in 1956 and 1965 what was the intention of the buyers actual or name-lender. These issues can be decided only after considering the merits of the respective claims of the parties on the basis of their evidence and specific provisions of law. Hence, only on the basis of Section 4 of the Act the entire suit can not be allowed to fall at this preliminary stage.
20. In the aforesaid facts and circumstances of the case, I do not find any jurisdictional error in the impugned order and accordingly this Civil Revision is dismissed.