Karnataka High Court
Smt Lakshmi vs Sri M Venkataramanaiah on 21 January, 2013
Author: Subhash B.Adi
Bench: Subhash B Adi
R.F.A.NO.1273/2009
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21ST DAY OF JANUARY 2013
BEFORE
THE HON'BLE MR. JUSTICE SUBHASH B ADI
REGULAR FIRST APPEAL No.1273/2009
BETWEEN:
SMT LAKSHMI
WIFE OF VENKATARAMANAIAH
AGED 76 YEARS
RESIDING AT NO.178, 9TH CROSS
WILLIAMS TOWN BENSON TOWN
BANGALORE-560 005
...APPELLANT
( BY SRI. JANARDHANA.G., ADV.,)
AND:
1 SRI M VENKATARAMANAIAH
SON OF H SIDDAIAH
AGED 76 YEARS
NO.674, 1ST CROSS, GRAPE GARDEN
KAMMANAHALLI
BANGALORE-84
2 K TAJ
SON OF LATE ABDUL KHUDUS SAHEB
NO.87, 4TH CROSS
WILLIAMS TOWN
BANGALORE-560 005
...RESPONDENTS
( BY SRI. RAMESH CHANDRA, ADV., FOR R1;
SRI. M.R.HUMAYUN, ADV., FOR R2)
R.F.A.NO.1273/2009
2
RFA FILED U/S 96 OF CPC, AGAINST THE ORDER DATED:
13.11.2009 PASSED ON I.A IN OS.NO.111/2004 ON THE FILE
OF THE 1ST ADDL. PRL. JUDGE, FAMILY COURT, BANGALORE,
ALLOWING THE APPLICATION FILED BY THE RESPONDENT
NO.1 HEREIN FILED U/O 7 R-11(d) OF CPC, SEEKING
REJECTION OF PLAINT.
THIS RFA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the plaintiff against the judgment/order in O.S.No.111/2004, dated 13.11.2009 on the file of the 1st Additional Principal Judge, Family Court, Bangalore.
2. Plaintiff is the wife of defendant No.1. Defendant No.2 is the purchaser of the suit schedule property. Plaintiff sought for declaration declaring that, she is the owner of the suit schedule property and defendant No.1 husband, is only a name lender to the said property.
3. When the matter was at the stage of recording the evidence of the plaintiff, an application came to be filed under Order 7 Rule11(d) of CPC by defendant No.1 for rejecting the plaint, on the ground that, the suit is barred by R.F.A.NO.1273/2009 3 the provision of Benami Transactions (Prohibition) Act, 1988 (for short 'the Act').
4. Defendant No.1 contend that, Section 4 of the Act bars suit to seek declaration of title on the basis of the Benami Transaction. The trial Court relying on the said provision held that, defendant No.1 is the purchaser of the property and registered sale deed stands in his name, as such plaintiff's case for declaration of Benami Transaction is barred under Section 4 of the Act. Accordingly, it rejected the plaint. As against the said judgment, the plaintiff has filed this appeal.
5. Learned counsel for the appellant submitted that Section 4 of the Act is not applicable to the fiduciary relationship between the husband and wife. The plaintiff was also Government teacher and she has contributed money for the purchase of the suit schedule property, as such Section 4 of the Act should not have been invoked for rejection of the plaint.
R.F.A.NO.1273/20094
6. On the other hand, learned counsel for defendant No.1 submitted that, in the plaint, there is no averment that the relationship between the plaintiff and defendant No.1 was hostile since marriage and as such, when there is hostile relationship, there can not be fiduciary relationship. He further contended that, the suit schedule property was a Corporation property. Defendant No.1 was Corporation employee, it was allotted to him and consequently, it was sold to him, as such there cannot be any benami transaction at all.
7. In the light of the submission made by both the counsel, the point that arises for my consideration is that:
"Whether the plaint could have been rejected under Order 7 Rule 11(d) of CPC by relying on Section 4 of the Benami Transactions (Prohibition) Act?"
8. Section 4 of the Benami Transaction (Prohibition) Act reads as under:
"(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name R.F.A.NO.1273/2009 5 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."
9. Proviso is exception to main Section 4 wherein clause(b) which excludes other persons standing in a R.F.A.NO.1273/2009 6 fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee. Relationship between the plaintiff and defendant No.1 is not in dispute. However, whether it was fiduciary relationship, whether there was hostility in their relationship or there was contribution, no contribution or whether the Corporation has allotted the land to defendant No.1 only because of he is employee etc., are the matter which have to be considered on the basis of the evidence. Without considering the same, the suit can not be decided. There was no ground to reject the plaint.
10. Since the plaint has been rejected without even considering the scope and ambit of Section 4 of the Act, I find that the matter requires consideration.
11. Accordingly, the appeal is allowed. Order in O.S.No.111/2004 dated 13.11.2009 on the file of the 1st Additional Principal Judge, Family Court, Bangalore is set aside. The matter is remitted to the trial Court with a direction to proceed with trial on merits from the stage where it was stopped. The suit be decided as early as possible but R.F.A.NO.1273/2009 7 not later than three months from the date of receipt of copy of this order.
Office is directed to return the original records forthwith.
Both the counsel request for fixing the date of appearance.
Parties are directed to appear before the trial Court on 11.02.2013 and keep witnesses present. All the contentions including the contentions raised in this case are kept open. The trial Court shall not prejudice by any of the observations made in the course of this order.
Sd/-
JUDGE PMR*