Chattisgarh High Court
Satyendra Dwivedi vs Smt. Hemlata Dwivedi on 29 April, 2008
Author: Dilip Raosaheb Deshmukh
Bench: Dilip Raosaheb Deshmukh
HIGH COURT OF CHATTISGARH AT BILASPUR
First Appeal No.9 of 2008
Satyendra Dwivedi
...Petitioners
versus
1 Smt. Hemlata Dwivedi
2 Shailendra Dwivedi
3 Smt. Umeshwari Dwivedi
4 Manoj Kumar
5 Smt. Shalini Pandey
...Respondents
! Shri Malay Kumar Bhaduri
^ Shri Sachin Singh Rajput with Shri Anant Bajpai
Hon'ble Shri Dilip Raosaheb Deshmukh,J
Dated:29/04/2008
: Judgment
JUDGMENT
(Delivered on this 29th day of April, 2008) The appellant/plaintiff is aggrieved by an order dated 29.12.2007 passed in Civil Suit No. 20-A of 2007 by the Additional District Judge, Bilaspur whereby on an application filed by the respondents/defendants under Order 7 Rule 11 of C.P.C. the suit was dismissed as barred under Section 4 (1) of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as the Act of 1988).
2) Admittedly, the appellant/plaintiff and the respondent/defendant No.2 are the sons of respondent/defendant No.1 - Smt. Hemlata Dwivedi, who is the widow of Babulal Dwivedi. A registered sale deed was executed on 11.10.1974 wherein Smt. Hemlata Dwivedi was shown as the purchaser of the suit property. On 11.04.2005, Hemlata Dwivedi executed a sale deed of the suit property in the name of respondent No.2 and his wife/respondent No.3. It is also not in dispute that in Civil Suit No. 43-A/2005 instituted by respondents No.2 & 3 against respondent No.1/Smt. Hemlata Dwivedi for declaration of title and possession over the suit property, a compromise was effected in Lok Adalat on 25.09.2005 between the parties whereupon the suit was decreed while declaring that respondents No.2 & 3 were the owners and in possession of the suit property and were entitled to have their name mutated over the same.
3) The appellant/plaintiff instituted the suit praying for the following reliefs:;
"(13) ;g fd oknh izkFkZuk djrk gS fd ,v ;g fd oknh ds i{k esa ?kks"k.kk dh vkKfIr + ikfjr dh tkos fd Lo- ckcwyky f}osnh `'kkldh;
lsok ds Hk;o'k okn lEifRr dk iath;u izfrokfnuh Oekad &1 ds uke ij djkus ls izfroknh Oekad &1 dk okn lEifRr ij dksbZ vf/kdkj u gksus ls okn lEifRr mHk; i{k dh la;qDr lEifRr gksus ls izfroknhx.k dks fnukad 11&04&2005 dks okn lEifRr iath;u djkus dk vf/kdkj u gksus rFkk okn lEifRr fcuk O; ewY; ds iath;u gksus ls foO; i= fnukad 11&04&2005 'kwU;or gksus ls mlds vk/kkj ij fcuk oknh dks i{kdkj cuk;s U;k;ky; ls okLrfod rF;ksa dks Nqikdj fnukad 25&09&2005 dks izkIr dh xbZ vkKfIr 'kwU;or gksus ls izfroknh Oekad &1 rFkk 2 dks mlesa dksbZ vf/kdkj izkIr ugha gksrk gSA ,c ;g fd oknh ds i{k esa ?kks"k.kk dh tkos fd + ekuuh; yksd vnkyr [k.MihB Oekad&1 }kjk ikfjr vkKfIr fnukad 25&09&2005 oknh dks i{kdkj cuk;s fcuk ekuuh; U;k;ky; ls okLrfod rF; dks fNikdj tks fMOh izfroknhx.k us izkIr dh gS og oknh ij cU/kudkjh ugha gS vkSj 'kwU;or gSA ,l ;g fd oknh dks izfroknhx.k ls U;k;ky;hu [kpZ + ,oa vU; vuqrks"k tks izdj.k dh ifjfLFkfr;ksa esa U;k;ky; fnykuk pkgs fnykbZ tkosA"
4) It was averred by the appellant/plaintiff in the plaint that late Babulal Dwivedi had purchased the suit property ostensibly in the name of Hemlata Dwivedi since official permission for the same was rejected by the Government. It was further pleaded that the sale deed of the suit property executed by Hemlata Dwivedi in favour of respondents No.2 & 3 was without consideration and got executed by the respondents No.2 & 3 from Hemlata Dwivedi taking undue advantage of fiduciary relationship. It was also averred that the mutation proceedings initiated by the respondents No.2 & 3 was dismissed upon an objection preferred by the appellant/plaintiff. To overcome this, the respondents No.2 & 3 in collusion with respondent No.1 instituted a Civil Suit No. 43-A/2005 and fraudulently obtained a decree for declaration of title and possession from the Lok Adalat, Bilaspur.
5) The respondents/defendants No.1 & 2 made an application under Order 7 Rule 11 of the C.P.C. for rejection of the plaint on the ground that the suit was barred under the Act of 1988. By the impugned order, the trial Court allowed the application and held that the suit was barred under Section 4 (1) of the Act of 1988.
6) Learned counsel for the parties were heard at length. Record was perused.
7) It is well settled that for considering an application under Order 7 Rule 11 C.P.C. the plaint averments are to be read as a whole. As held by the Apex Court in Popat and Kotecha Property v. State Bank of India Staff Association, (2005) 7 SCC 510 paragraph 19 while considering an application under Order 7 Rule 11 C.P.C. compartmentalization, dissection, segregation and inversions of the various paragraphs in the plaint is not permissible because if such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is thus trite law that the entire plaint and not merely a plea would be considered. In Roop Lal Sathi v. Nachhattar Singh Gill, (1982) 3 SCC 487, it was held that rejection only of a part of the plaint is not permissible under Order 7 Rule 11 C.P.C.
Therefore, where in a suit the plaintiff has claimed several reliefs, one of which is alleged to be barred under any law, the entire plaint shall not be liable for rejection under Order 7 Rule 11 of the C.P.C. In the present suit, the relief for declaration that the decree obtained by the respondents No.1, 2 and 3 from the Lok Adalat was void and not binding on the plaintiff was not barred by any law, and therefore, the plaint, as a whole, could not be rejected under clause
(d) of Order 7 Rule 11 of the C.P.C.
8) Section 3 of the Act of 1988 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 of the unmarried daughter; (b the securities held by a---
) (i) depository as registered
owner under sub-section (1) of
section 10 of the Depositories
Act, 1996
(ii) participant as an agent of
depository.
Explanation.--- The expressions "depository" and "Participants shall have the meanings respectively assigned to them in clauses (e) and (g) of sub-section (1) of section 2 of Depositories Act, 1996.
(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.
9) The suit property was purchased on 11.10.1974 showing the name of Hemlata Dwivedi as the purchaser. This purchase was prior to the coming into force the Act of 1988. Therefore, Section 3 (1) of the Act of 1988 containing prohibition on entering in to a benami transaction would not apply to the present suit since the provisions of the Act of 1988 were not retrospective in operation. Even under Section 3 of the Act of 1988, it is permissible for a person to purchase property in the name of his wife or unmarried daughter and such purchase is not hit by the provisions of the Act. However, there is presumption that the purchase made in the name of the wife or unmarried daughters is for their benefit. The presumption under sub-section (2) of Section 3 of the Act of 1988 is a rebuttable presumption requiring pleading and proof. The transaction dated 11.10.1974 being prior to the Act of 1988, the burden would lie heavily on the appellant/plaintiff to prove that Hemlata Dwivedi was ostensibly shown as the purchaser of the suit property which was purchased benami by Babulal Dwivedi in her name.
10) Section 4 of the Act of 1988 reads as under:
"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; or (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 capacity.
Sub-section (1) of Section 4 of the Act of 1988 lays down 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 the real owner of such property (emphasis supplied by me). The words "by or on behalf of a person claiming to be the real owner of such property" signify that a suit, claim or action shall not lie either by a person who has purchased the property ostensibly in the name of another or on behalf of such person. In the present case, the appellant/plaintiff is neither the real owner nor acting on behalf of the real owner. The words "on behalf of a person" signify a person who has been authorized by the real owner to institute the suit. It does not include an action by a legal representative on the basis of an averment of the suit property being coparcenary property of a Hindu Undivided family held for the benefit of coparceners in the family. Sub- clause (a) of sub-section (2) of Section 4 clearly renders the prohibition contained in sub-section (1) of Section 4 of the Act of 1988 inapplicable to suits where it is averred that 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. In the present case, the plaintiff/coparcener has instituted the suit on the averment that the suit property belonging to the Hindu Undivided family was held by Hemlata Dwivedi, a coparcener. Therefore, such a suit was not barred under Section 4 (1) of the Act of 1988.
11) In view of the above discussion, it is clear that the impugned order being contrary to law is liable to be set aside. Accordingly, the appeal is allowed. The impugned order dated 29.12.2007 passed by the Additional District Judge, Bilaspur is set aside. The application under Order 7 Rule 11 of the C.P.C. filed by the respondents/defendants is dismissed. The trial Court is directed to expeditiously decide the suit in accordance with law.
JUDGE 29.04.2008