Madras High Court
S. Deivarani vs A.S.Hariharakumar on 9 August, 2024
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
CRP.No.2452 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.08.2024
CORAM
THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Civil Revision Petition No. 2452 of 2021
and
CMP.No.18541 of 2021
---
1. S. Deivarani
2. S. Ganesh Vinayak @ A.S.Vinayagamurthi .. Petitioners
Versus
A.S.Hariharakumar .. Respondent
Civil Revision Petition filed under Article 227 of Constitution of India,
to set aside the Fair and Decreetal Order dated 20.09.2021 passed in I.A. No. 3
of 2020 in O.S. No.1 of 2020 on the file of the Principal District Munsif,
Salem.
For Petitioners : Mr. V. Raghavachari, Senior Counsel
for Ms. B.S. Mitraneshaa
Mr. J. Joseph Stalin
For Respondent : Mr. P. Valliappan, Senior Counsel
for M/s. P.V. Law Associates
ORDER
This Civil Revision Petition has been filed to set aside the Fair and Decreetal Order dated 20.09.2021 passed by the learned Principal District Munsif, Salem, in I.A. No.( Uploaded https://www.mhc.tn.gov.in/judis 3 of 2020 in O.S. No. 1 of 2020.
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2. The Defendants in O.S. No. 1 of 2020 on the file of the learned Principal District Munsif, Salem are the Civil Revision Petitioners. The Respondent is the Plaintiff who had instituted the suit in O.S. No. 1 of 2020 for a declaration to declare that the gift settlement deed executed by the first Defendant in favour of the second Defendant on 09.11.2017 as null and void and for a consequential permanent injunction restraining the second Defendant from putting up any construction or altering the physical features of the suit scheduled property.
3. According to the Plaintiff, he and the second Defendant are sons of Late. Shanmugamoorthy. The first Defendant is the mother of the Plaintiff and the second Defendant. According to the Plaintiff, his father Shanmugamoorthy was a reputed Senior Advocate in Salem City and he died on 26.01.2014. It is stated that the suit scheduled property was purchased by his father through a registered sale deed dated 22.07.1978 in the name of the first Defendant, but and the first Defendant was only a name lender. The suit scheduled property, at the time of purchase was only a tiled house and later it was demolished and a building consists of ground and first floor was constructed by his father. Even during his life time, the father of the Plaintiff only intended to divide the suit property equally to his two sons viz., Plaintiff https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) 2/28 CRP.No.2452 of 2021 and second Defendant. According to the Plaintiff, he pursued law and has become an Advocate in Salem. Subsequently, he joined the Judicial Service and due to his nature of job, particularly, when he was transferred from one place to another frequently, he could not frequently visit the property. Even during the holidays or festival leave when the Plaintiff visits Salem, he demanded the second Defendant for an amicable partition. Even though the second Defendant was not ready for equal share, the Plaintiff handed over the original documents of title to his mother/first Defendant for preparing a draft partition deed. However, the Defendants did not take any steps for effecting a partition of the suit scheduled property. While so, on suspicion, the Plaintiff applied for encumbrance certificate and was shocked to note that a gift settlement deed dated 09.11.2017 was executed by the first Defendant in favour of the second Defendant. It is his contention that the first Defendant has no conveyable right over the suit scheduled property nor the gift settlement deed was executed out of love and affection but the gift settlement deed came to be executed in favour of the second Defendant by misrepresentation, undue influence and coercion. Therefore, the Plaintiff sent a notice dated 29.10.2019 through his Advocate calling upon the Defendants to cancel the gift settlement deed. On receipt of the notice dated 29.10.2019, a reply dated 25.11.2019 was sent by the Defendants with false allegations, hence, the suit was filed. https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) 3/28 CRP.No.2452 of 2021
4. On notice in the suit, the Defendants have filed I.A. No. 3 of 2020 in O.S. No. 1 of 2020 under Order VII, Rule 11 (a) and (d) of the Code of Civil Procedure to reject the plaint on the ground that the suit is barred by Section 4 of Benami Transactions (Prohibition) Act, 1988 and there is no cause of action to institute the suit.
5. In the affidavit filed in support of I.A. No. 3 of 2020 in O.S. No. 1 of 2020, it was stated that the suit property was purchased by the mother/first Defendant by sale of jewels given to her as sridhana. Further, the first Defendant earned income through tailoring and small money lending business out of which the tiled house in the suit property was converted into a terraced building. Further, the gift settlement deed was executed by the first Defendant in favour of second Defendant out of love and affection and the question of misrepresentation, undue influence or coercion does not arise. Therefore, the Plaintiff is not entitled to maintain the present suit in view of Section 4 of Benami Transactions (Prohibition) Act, 1988. The plaint does not disclose a cause of action and the Plaintiff has no legal right to institute the suit. The suit is frivolous and the same has to be nipped in the bud. Accordingly, the second Defendant prayed for rejecting the plaint.
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6. The application to reject the plaint was contested by the Plaintiff by filing a counter affidavit contending inter alia that the second Defendant is having complete control over the first Defendant which led to the execution of the gift settlement deed by her in favour of the second Defendant. The second Defendant had deposited more than Rs.83 lakhs in favour of the first Defendant after execution of the gift settlement deed and it only shows that the gift settlement deed was not out of love and affection. The plaint discloses a proper cause of action and the grounds stipulated under Order VII Rule 11 of the Code of Civil procedure are not attracted in this case. Accordingly, he prayed for dismissal of the application in I.A. No. 3 of 2020 in O.S. No. 1 of 2020.
7. The trial Court, upon analysing the oral and documentary evidence observed that the Plaintiff contends that the building in the suit scheduled property was put up by his father, but it is stated by the second Defendant that the first Defendant, out of her own income constructed it. The trial Court therefore observed that such dispute requires evidence to be let in during trial. Further, the trial Court concluded that it is too early to decide as to whether the plaint is maintainable or it is hit by the provisions of Section 4 of Benami Transactions (Prohibition) Act, 1988 and only after evidence is let https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) 5/28 CRP.No.2452 of 2021 in during the course of trial, such dispute could be adjudicated. Above all, the trial Court observed that if it is concluded that the building in the suit scheduled property was constructed by the father of the Plaintiff, then, the Plaintiff and the Defendants are entitled to an equal share in the suit scheduled property. For arriving at such a conclusion, evidence is required to be let in by the parties and at this stage, it cannot be pre-supposed that the suit is frivolous. Accordingly, the trial Court dismissed the application to reject the plaint by the order dated 20.09.2021 in I.A. No. 3 of 2020 in O.S. No. 1 of 2020.
8. Assailing the aforesaid order dated 20.09.2021, the Defendants have come up with this Civil Revision Petition.
9. The learned Senior Counsel appearing for the Defendants/Revision Petitioners would contend that the Plaintiff is serving as District Judge in the State of Tamil Nadu. He had filed the suit for declaration and for consequential injunction. As per the plaint averments, the relief sought for in the plaint ought to have been rejected, instead the learned Principal District Munsif, Salem dismissed the petition filed by the Defendant in I.A.No.3 of 2020 in O.S.No.1 of 2020. It is the vehement contention of the learned Senior Counsel for the Revision Petitioners-Defendants that the suit, https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) 6/28 CRP.No.2452 of 2021 as filed by the Plaintiff, is not maintainable and it is required to be dismissed summarily and the parties need not undergo the ordeal of a lengthy trial in the suit. In support of his contentions, the learned Senior Counsel for the Revision Petitioners relied upon the following Judgments and seeks to set aside the order of dismissal passed by the learned Principal District Munsif, Salem, to reject the plaint.
(i) (2017) 11 SCC 852 in the case of J.Vasanthi and others Vs.N.Ramani Kanthammal (Dead) Represented by Legal Representatives and others wherein the Hon'ble Supreme Court has held as follows:
“Court Fees- T.N.Court Fees and Suit Valuation Act, 1955 (14 of 1955) – S.40 or S. 25 (d) – Suit for declaration that sale deeds were fabricated and hence void – Held, in suit for declaration for treating documents null and void, which basically amounts to seeking relief of cancellation of documents, and where original Plaintiff was party to such transaction, as in instant case, Court fee is to be computed on value of subject-matter of suit i.e., under S.40 – Impugned judgment affirming order of trial Court rejecting Defendant – applicant's application praying for directing plaintiffs to pay Court fee under S.40, unsustainable – Trial Court directed to grant three months' time to Plaintiff to pay requisite Court fees – specific relief Act,1963.”
(ii) (1996) 2 MLJ 4 in the case of K.A.Alagiah Vs. A.A.Chinnazhagu and others this Court had held as follows:-
“Tamil Nadu Court Fees and Suits Valuation Act (XIV of 1955), Secs. 25 (a) to © and 27 (a), (b), © - Applicability – Relief sought with reference to immovable properties – Norm Rs.8 lakhs – Plaintiff averring that Defendants have alienated his half share in the properties thereby denying her title – Declaration sought that https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) 7/28 CRP.No.2452 of 2021 alienation null and void – But suit laid for injunction restraining Defendant from selling away the properties -Secs. 25 (d) and 27 ©, held would apply only if Secs. 25 (a) to 25 (c) on the one hand and Sec. 27 (a) and (2) on the other are not applicable – District Munsif held, had no pecuniary jurisdiction to try suit.”
(iii) (2017) SCC Online Mad 17528 in the case of Elangovan Vs. Sulochana and others this Court had held as follows:-
“26. While writing judgment in the above cited case, this Court has placed reliance upon the decision made in K.A.Alagiah Vs. .A.Chinnazhagu and Ors. reported in (1996) 2 MLJ 4. 92. In the said case, the the Plaintiff therein had filed the suit in O.S.No.244 of 1995 on the file of the District Munsif, Madurai Taluk seeking a decree and judgment that any encumbrance done by the first Respondent with the second Defendant or his men to sell away the properties in any manner, including half share of the property of the Plaintiff is null and void and consequently restraining the Defendants by way of permanent injunction from in any way alienating or selling away the properties to third parties.
27. M.Srinivasan.J., a learned Judge of this Court as he then was, in paragraph No.2 of the said judgment has observed that a perusal of the plaint clearly shows that the Plaintiff has adopted a camouflage and instead of directly praying for a declaration of her half share in the properties or directly asserting that she has got one half share in the suit property and preventing the Defendants from alienating the properties, has prayed for a declaration that the alienation affected by the Defendants is null and void, which is only on the basis that the Plaintiff is entitled to one half share in the properties.
The Plaintiff therein had filed an interlocutory application in I.A.No.508 of 1995 for interim injunction during the pendency of the suit. The Defendant had contested the application stating that the Court had no jurisdiction to entertain the suit.
28. The Defendant therein had also contended that the value of the suit properties was such that the Court of the District Munsif would have no jurisdiction to deal with the claim as the sale proceeds amounted approximately to Rs.8 lakhs. The learned Judge in Paragraph 5 has observed that the plaint has been valued under Sections 25(d) and 27 (c) of the Tamil Nadu Court-Fees and Suits Valuation Act. Under Section 25(d) if the matter does not fall under Clauses (a), (b) and (c), https://www.mhc.tn.gov.in/judis whether the subject matter of suit is capable of ( Uploaded on: 11/03/2025 05:55:43 pm ) 8/28 CRP.No.2452 of 2021 valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees four hundred, whichever is higher. Under Section 27(c), in a suit for injunction, whether the subject matter of the suit has a market value or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees four hundred, whichever is higher. ........µ. ..........According to the Plaintiff, she is entitled to one half share in the said properties and the Defendants have unlawfully alienated her half share also denying thereby her title. That is why the Plaintiff has sought for a declaration that the alienation effected by the Defendants is null and void and not binding on her.
33. While penning down the judgment, Srinivasan,J., as he then was after referring to catena of cases at the first instance has held that the learned Subordinate Judge had exceeded his jurisdiction in rendering findings on the merits of the main case while dealing with the issue relating to the valuation of the plaint and Court fee payable preliminarily. Placing reliance upon the decision rendered in Sathappa Chettiar Vs.Ramanathan Chettiar, Selvahimar Rice and Oil Mills, Salem Vs. Tamil Nadu Electricity Board, 99 L.W.740, Ramu Udayar Vs. Tamil Nadu Electricity Board, 1990 T.L.N.J. 107 and Santhana Kesari Vs.Kathija Bai(1994) 2 MLJ 413., the learned Judge has observed that the question of Court fees must be considered in the light of the allegations made in the plaint and the decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on the merits. He has also held that, however, Courts have always taken care to point out repeatedly that mere astuteness in drafting the plaint will not be allowed to stand in the way of the Court looking at the substances of the relief asked for and the Court should look into the allegations in the plaint to see what is the substance of the relief asked for and the Court should look into the allegations in the plaint to see what is the substantive relief that is asked for.
58. This Court has also perused the grounds of revisions along with the impugned order passed by the Court below dated 07.07.2012. On careful consideration of the grounds of revision and examination of the impugned order this Court is of view that the first Respondent/Plaintiff does not have cause of action to maintain the suit as against the petitioners. Secondly, the District Munsif, Madhuranthagam is not having pecuniary jurisdiction to entertain the suit. Thirdly, the suit itself cannot be allowed to sustain as the same is squarely barred by law.
59. Keeping in view of the above facts, this Court is of view https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) 9/28 CRP.No.2452 of 2021 that the Civil Revision Petitions are deserved to be allowed Accordingly, the civil revision petitions are allowed and the impugned orders dated 07.07.2012 are set aside. The petition in I.A. No.123 of 2012 in O.S.No.161 of 2011 is allowed. Ultimately, the plaint in O.S.No.161 of 2011, on the file of the learned District Munsif, Madurantakam, is rejected.”
(iv) (2003) 1 SCC 557 in the case of Saleem Bhai and others Vs. State of Maharashtra and others the Hon'ble Supreme Court had observed as under:
“7. The short common question that arises for consideration in these appeals is, whether an application under Order VII Rule 11 C.P.C. ought to be decided on the allegations in the plaint and filing of the written statement by the constesting Defendant is irrelevant and unnecessary.
8. Order VII Rule 11 C.P.C. reads as under:
"11. Rejection of plaint.-The plaint shall be rejected in the following cases:-
(a) Where it does not disclose a cause of action;
(b) Where the relief claimed is undervalued, and the Plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) Where the relief claimed is properly valued by the plaint is written upon 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, failed 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 provisions of rule 9;
https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) 10/28 CRP.No.2452 of 2021 Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the Plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause great injustice to the Plaintiff."
9. A perusal of Order VII Rule 11 C.P.C. makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial Court can exercise the power under Order VII Rule 11 C.P.C. at any stage of the suit-before registering the plaint or after issuing summons to the Defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order VII C.P.C. the averments in the plaint are germane; the pleas taken by the Defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order VII Rule 11 C.P.C. cannot but be procedural irregularity touching the exercise of jurisdiction by the trial Court. The order, therefore, suffers from non- exercising of the jurisdiction vested in the Court as well as procedural irregularity. The High Court, however, did not advert to these aspects. We are, therefore, of the view that for the afore-mentioned reasons, the common order under challenge is liable to be set aside and we, accordingly, do so. We remit the cases to the trial Court for deciding the application under Order VII Rule 11 C.P.C. on the basis of the averments in the plaint, after affording an opportunity of being heard to the parties in accordance with law.”
(v) Civil Appeal No.4665 of 2021 Arising out of SLP (C). No.3899 of 2021 in the case of Srihari Hanumandas Totala Vs. Hemant Vithal Kamat & Ors.
(vi) CRP.PD.No.3686 of 2016 dated 21.08.2017 in the case of S.N.Balapattabi Vs. Mrs.Balanagalakshmi.
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(vii) (2020) 14 SCC 110 in the case of Vurimi Pullarao Vs. Vemari Vyankata Radharani the Hon'ble Supreme Court had held as under:
“Civil Procedure Code, 1908- Or.2 Rr.2 (3) and 2 (2) – Omission to sue for all the reliefs, without leave of the Court – Bar on suing for such relief afterwards – Applicability – Requirements of, summarised B. Civil Procedure Code, 1908, - Or.2 R.2 – Bar under – Applicability of- Strict proof of earlier Suit in evidence in later suit, held, not mandatory to attract the bar under Or.2 R.2, so long as parties are aware of pleadings, nature of objection to the maintainability of subsequent suit on the ground of the bar under Or.2 R.2 – Plea that in order to attract bar under Or.2 R.2, it is necessary that plaint in earlier suit must be proved in evidence and same was not done in instant case – Held, liable to be rejected in present case.
C. Civil Procedure Code, 1908 – Or.2 R.2 – Bar under – When attracted – Distinction between requirements of Or.2 R.2(2) and Or.2 R.2(3) – Principles summarised.”
(viii) (1985) 98 L.W. 450 in the case of M.Mohan and others Vs. P.G.Sankaramoorthy and others this Court had observed as under:
“10. Mr. Ramanathan, learned counsel appearing on behalf of the appellants-plaintiffs would make the following submissions.- (1) The order on the check slip and the order made in C.R.P. 2590 of 1978, are contrary to law, without jurisdiction and without conforming to the provisions of the Court Fees Act and against recognised principles laid down by the various decisions and therefore it should have been held, on the relevant materials on record, that the plaint had been properly valued and proper Court fee had been paid thereon. (2) The question relating to the correctness of the valuation as well as the sufficiency of the Court-fees, affixed on the plaint can even now be reagitated in this regular appeal not withstanding the order passed in C.R P. 2590 of 1978 which was passed without jurisdiction. (3) Even if the valuation of the suit is incorrect and the Court-fee paid is insufficient the dismissal of the suit https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) 12/28 CRP.No.2452 of 2021 on the ground of non-payment of the deficit Court fee is illegal, but the proper course would be to reject the plaint under Order 7, Rule 11(c), C.P.C. and under S. 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 (Act XIV of 1955) (hereinafter referred to as the Court-Fees Act). (4) In any event, this Court may be pleased to grant extension of time for payment of the deficit Court-fee as per S. 12(4) (b)of the Court Fees Act.
26. After carefully going through all the above decisions, I am of the view that a plaint can be rejected at any stage of the suit under O. 7, R. 11(c), C.P.C., if the Plaintiff has failed to make good the deficiency in the Court-fee due within the time granted by the Court and that the proper course for the Court would be only to reject the plaint and not to dismiss the suit.
28. Now, coming to the case on hand it may be pointed out that the plaint in, this case has been admitted, as I have already pointed out only subject to the question of Court-fee and the checkslip was issued subsequently pointing out the deficiency in the Court-fee and hence the entire proceedings in the present suit should be taken to have been proceeded with subject to the question of Court-fee and since the suit has been disposed of only on the Plaintiff failing to pay Court-fee within the time granted, a fortiorari it should be held that the failure of the plaintiffs to pay the Court-fee should date back to the date of the institution of the plaint. For all the reasons stated above, I hold that the Court below was not justified in dismissing the suit, but it ought to have rejected the plaint under O. VII, R. 11(c) C.P.C.”
10. Per contra, the learned Senior Counsel for the Respondent/ Plaintiff submitted that the Order passed by the learned Principal District Munsif dismissing the Petition in I.A. No. 3 of 2020 in O.S. No. 1 of 2020 under Order VII, Rule 11 (a) and (d) to reject the Plaint is a well reasoned Order which does not warrant any interference. The learned Senior Counsel for the Respondent/Plaintiff further submitted that the Suit filed by the Plaintiff before the learned District Munsif in O.S. No. 1 of 2020 is very much https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) 13/28 CRP.No.2452 of 2021 maintainable. The contention of the Defendants in O.S. No.1 of 2020 is that on the date of filing of the Suit, the Suit itself is not maintainable. As per the Plaint averments, the father of the Plaintiff/husband of the first Defendant purchased the property in the year 1978 as a tiled house. The father of the Plaintiff was a successful lawyer in Salem Bar. During his lifetime, after purchasing the property, he demolished the old tiled house and put up construction of house consists of ground and first floors. During his lifetime, he wanted to partition the property between his two sons viz., the second Defendant and the Plaintiff. Before he could effect partition, he died. The father of the Plaintiff and the second Defendant had purchased the property in the year 1978 in the name of his wife/first Defendant. The first Defendant was only a housewife. She did not have an independent income or profession.
Therefore, the property was self-acquired property of the father in the name of the mother of the Plaintiff. While so, the second Defendant in the Suit influenced the first Defendant and obtained a gift settlement deed thereby denying the share of the Plaintiff in the property. Therefore, the Plaintiff seeks to declare the settlement deed executed by the first Defendant/mother in the name of the second Defendant/Son, denying the half share of the Plaintiff to be null and void. The Plaintiff also reserved his right to seek partition of the property by seeking exemption under Order II, Rule 2 of CPC on a subsequent https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) 14/28 CRP.No.2452 of 2021 date. For the present, he is filing the Suit for declaring the gift settlement deed executed by the first Defendant/ mother in favour of the second Defendant to be null and void ab initio. The first Defendant/mother had filed the Petition under Order VII, Rule 11 (a) and (d) of CPC to reject the Plaint on the ground that she had her own income through tailoring business and based on such income, she acquired the property, sold her jewels from Sreedhana articles and constructed the building. After due enquiry, the learned Principal District Munsif had dismissed the Petition stating that the Benami Transactions (Prohibition) Act, 1988 did not have retrospective effect and it is prospective in nature. Before going into the trial and adducing evidence, at this stage, the Court cannot decide that the Suit is frivolous and accordingly, the trial Court rightly dismissed the Petition to reject the plaint. In support of his submission, the learned Senior Counsel for the Respondent relied on the following rulings:
(1) 2011 (6) CTC 1 in the case of R.Rathnappa and another Vs. V.Lakshmma this Court has held as follows:
“Benami Transactions (Prohibition) Act, 1988 (45 of 1988), Sections 3 & 4 - Indian Trusts Act, 1882 (2 of 1882), Section 82 - Prohibition of Benami Transaction - Prohibition of right to recover property held by Benami - Whether prohibition under Benami Transaction Act is prospective or retrospective - Suit property was purchased in year 1978 prior to commencement of Benami Transactions Act - Contention of Defendant that prohibition under Act will not apply to property purchased prior to commencement of Act - https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) 15/28 CRP.No.2452 of 2021 Held, no claim can be made to enforce any right in respect of any property held by Benami against person in whose name property is held - Any claim or action alone has been prohibited from being taken on basis of Benami in respect of any property held as Benami - After commencement of Act, either by way of Suit or by way of any claim by means of Written Statement, plea of Benami cannot be taken - Defendant cannot make claim for suit property on basis of Benami transaction, if he has not already filed Written Statement claiming title under Benami transaction before coming into force of Section of Act - Defendant filed Written Statement only after coming into force of Act, hence his claim is barred under Section 4 of Act.” (2) 2015 (3) CTC 316 in the case of Shanthi @ Shanthi Sathya and others Vs. M.Masanam this Court has held as under: :
“Benami Transactions (Prohibition) Act, 1988 (45 of 1988), Sections 3(2) &4 - Prohibition of Benami Transactions - Prohibition of right to recover property held by Benami - Immovable property purchased in name of wife from and out of sale consideration provided by Husband - Husband filed Suit for declaration to declare title and recovery of possession- Husband pleaded that property was purchased in name of his wife out of love and affection - Presumption thereto - Person to succeed in claim or defence in Suit on basis of Benami transaction in name of his wife, should plead and prove that purchase was not made for benefit of wife - Admission made by husband establishes that property was purchased for benefit of his wife - Husband is not entitled to recover property held by his wife - Law laid down in Nand Kishore Mehra v. Sushila Mehra, 1995 (2) CTC 356 followed and applied - Second Appeal allowed.” (3) 2016 (1) MWN (Civil) 464 in the case of Mangathai Ammal (Died) Vs. Rajeswari this Court has held as follows:
“BENAMI TRANSACTIONS (PROHIBITION) ACT, 1988 (45 of 1988). Sections 3(2)(a) & 4 - Right to seek Partition of property purchased in name of Wife by Husband - Section 4 will not apply but only Section 3(2)(a) would apply - Funds shown to be that of Husband https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) 16/28 CRP.No.2452 of 2021 and Stamp papers on which Deed was typed also in name of Husband
- Properties held to be Joint Family properties only and Suit for Partition, held, maintainable - Preliminary Decree passed confirmed in Appeal. (Paras 17 & 18)” (4) 2017 (1) CTC 374 in the case of Maria Francis (Died) Vs. M.Varghese @ Maria Varghese this Court has held as follows::
“Code of Civil Procedure, 1908 (5 of 1908). Order 9. Rule 9 - Suit dismissed for default - Bar to maintain subsequent Suit - Suit for Partition dismissed for default - Maintainability of Second Suit for Partition - Applicability - Bar under Order 9. Rule 9 is not applicable in Suit for Partition - Suit for Partition brings about severance of status and cause of action continuous until actual Partition - Subsequent Suit for Partition by same party is maintainable.
Benami Transaction (Prohibition) Act, 1988 (45 of 1988) - Suit for Partition - Transaction takes place prior to commencement of Act - Applicability - Contention of Defendant that Suit properties were purchased out of his earnings and Plaintiff is only Benami - Courts below held that transactions were hit by Benami Transaction (Prohibition) Act - Provisions of Act are not applicable to transactions prior to commencement of Act - Law laid down in C. Gangacharan case followed and applied.” (5) 2017 (3) MWN (Civil) 60 in the case of Lalitha Vs. Sundar and others this Court has held as follows:
“BENAMI TRANSACTIONS (PROHIBITION) ACT, 1988 (45 of 1988). Sections 3(2) & 4 - CONSTITUTION OF INDIA, Article 227
- Maintainability of Plaint in Suit for Declaration of Property - Property purchased by Husband in name of Wife - Sale Deed executed by Wife after Legal Notice by Husband to buyer - Validity of Sale Deed - Held, purchase not for exclusive benefit of Wife, but for benefit of children as well as construction of Residential home - Under Section 3(2)(a), Husband can let in evidence to rebut presumption in favour of Wife - Applicability of Sections 3(2) & 4 can be decided only after detailed Trial, by appreciating oral and documentary evidence - https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) 17/28 CRP.No.2452 of 2021 Interference with Trial Court Order not warranted - Civil Revision Petition dismissed.” (6) AIR 2018 SC 3470 in the case of Vinod Kumar Dhall Vs. Dharampal Dhall (Deceased) Through his Lrs and Ors the Hon'ble Supreme Court has held as follows::
“(A) Hindu Law - Joint Family Property - Suit for partition and separate possession - Property house in question acquired in name of eldest child and after her marriage transferred in name of Plaintiff - Entire family residing in house right from beginning- Plaintiff never resided in house and was not in possession and enjoyment of house at any point of time - Not a case of Plaintiff that eldest child in whose name property was acquired, has spent money for construction of house and given it to Plaintiff - House in question is family property and not exclusive property of Plaintiff - Fact that house tax receipt electricity and water bills of house in question are in name of Plaintiff has no effect - Provisions of S. 4 of Benami Transactions (Prohibition) Act, not applicable - Order decreeing suit in favour of Plaintiff, set aside.
Civil P.C. (5 of 1908), 0.20 R.18 -
Benami Transactions (Prohibition) Act (45 of 1988),- 2017 (245) DLT 571, Reversed.
(B) Benami Transactions (Prohibition) Act (45 of 1988), S.4- Right to recover property held benami - Prohibition against - When applicable.” (7) AIR 2019 SC (supp) 116 in the case of Pawan Kumar Vs. Babulal since Deceased Through Lrs. and Ors. the Hon'ble Supreme Court has held as follows:
“Civil P.C. (5 of 1908), 0.7 R.11(d) - Benami Transactions (Prohibition) Act (45 of 1988), S.4- Rejection of plaint - On ground of suit barred by S.4 of Benami Transaction Act - Suit for declaration of https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) 18/28 CRP.No.2452 of 2021 title - Property held by person in fiduciary capacity - Matter whether comes within purview of S.4 must be decided on strength of evidence on record - It requires fuller and final consideration after evidence led by parties - Plaint not liable to be rejected.” Point for consideration:
Whether the Order passed by the learned Principal District Munsif dismissing the Petition in I.A. No. 3 of 2020 in O.S. No. 1 of 2020 under Order VII Rule 11 (a) and (d) and Section 151 of CPC is to be set aside as perverse?
11. Heard the learned Senior Counsel for the Revision Petitioners/ Defendants, the learned Senior Counsel for the Respondent-Plaintiff and perused the materials placed on record.
12. On notice in the suit filed by the Plaintiff for declaration to declare the Gift Settlement Deed executed by the first Defendant/mother in favour of her son/second Defendant and for a consequential injunction, the Defendants have filed the I.A. No. 3 of 2020 in O.S. No. 1 of 2020 under Order VII, Rule 11 (a) and (d) of CPC and sought for rejection of the Plaint on two grounds i.e., (i) there is no cause of action arose for instituting the suit and (ii) the claim of the Plaintiff is barred under the Section 4 of Benami Transactions (Prohibition) Act, 1988. Both the contentions were rejected by https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) 19/28 CRP.No.2452 of 2021 the learned Principal District Munsif on the ground that the Benami Transactions (Prohibition) Act, 1988 came into effect in the year 1988 whereas, the Suit property was alleged to have been purchased by the father of the Plaintiff and second Defendant in the year 1978. As per the contention of the first Petitioner/first Defendant in I.A. No. 3 of 2020, the property was purchased by her, out of her own income as Tailor besides her father had contributed to the purchase of the property. It was also her contention that she sold the gold jewels given to her as sreedhana for purchase of the property in the year 1978. She had stoutly denied the contention of the Plaintiff in the Plaint that the father of the Plaintiff, who was a practicing lawyer and successful Member of Salem Bar Association had purchased the property out of his own income and it was his self-acquired property. On the other hand, it was the vehement plea of the Plaintiff that the father of the Plaintiff purchased the property in the name of the first Defendant and first Defendant was only a name lender. Having regard to such rival contentions, the learned Trial Judge observed that such dispute requires to be adjudicated only after evidence is let in by the parties. Such reasoning assigned by the learned Trial Judge, in the opinion of this Court, is proper and it cannot be called as perverse. It is no doubt true that for considering an application to reject the plaint, the Court has to consider the Plaint averments alone. If the Plaint averments indicate that https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) 20/28 CRP.No.2452 of 2021 the Suit is barred under the statute, the Plaint is to be rejected. In this case, the Plaintiff has come out with a plea that the suit scheduled property was purchased by his father in the name of his mother and that his mother is only a name lender. For considering this plea, evidence has to be let in. This is more so that in the application seeking rejection of plaint, the Defendants have averred to the contrary. One another reason that weighed the learned Trial Judge is the Benami Transactions (Prohibition) Act, 1988 came into effect only in the year 1988 and much before it's enactment, the suit scheduled property is said to have been purchased by the father of the Plaintiff, in the name of his wife. In such circumstances, even to conclude as to whether the provisions of Section 4 of Benami Transactions (Prohibition) Act, 1988 will apply to the instant case or not, evidence has to be let in by the wrangling parties to decide the aforesaid issue.
13. The second contention was that the Plaintiff had filed the Suit seeking a declaration to declare the gift settlement deed executed by the mother/first Defendant in favour of the second Defendant/Son, the brother of the Plaintiff as null and void ab initio. According to the first Defendant such relief sought for by the Plaintiff in the Suit was not properly valued as per the Tamil Nadu Court Fees and Suit Valuation Act. Therefore, on the ground also https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) 21/28 CRP.No.2452 of 2021 it has to be rejected.
14. In this case, the Plaintiff is not a party to the settlement deed executed by the first Defendant in favour of the second Defendant. While so, the suit valued by the Plaintiff under 25 (d) and 27 (c) of The Tamil Nadu Court Fee and Suit Valuation Act is proper. In such a situation, the provisions of Section 40 of the Tamil Nadu Court Fee and Suit Valuation Act is not at all attracted. Therefore, the order of the learned District Munsif is found proper and reasonable. If at all, in the course of the trial, the learned Principal District Munsif arrive at a conclusion that the subject matter involves the collection of proper Court Fees as per the Tamil Nadu Court Fees and Suit Valuation Act, sufficient time can be granted to the Plaintiff to pay appropriate Court Fees as may be determined.
15. Regarding bar of the claim of the Plaintiff under Section 4 of The Benami Transactions (Prohibition) Act, 1988 the learned Senior Counsel for the Respondent/Plaintiff invited the attention of this Court to Section 9 A (a)
(iii) of Benami Transaction Act is extracted hereunder:
“(9) “benami transaction” means -
(A) a transaction or an arrangement -
(iii) any person being an individual in the name of his https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) 22/28 CRP.No.2452 of 2021 spouse or in the name of any child of such individual and the consideration for such property has been provided or paid out of the known sources of the individual;”
16. In the ruling cited by the learned Senior Counsel for the Revision Petitioners in CRP.No.3686/2016 in the case of S.N.Balapattabi Vs. Mrs.Balanagalakshmi it was observed that the Order passed by the learned III Additional District and Sessions Judge, Gobichettipalayam dismissing the I.A. No. 250 of 2015 in O.S. No. 2 of 2007, in the Petition under Order VII Rule 11 of CPC on the ground of non-valuation of the Suit relief was set aside. That was a Suit for partition and for mense profits. In that case, it was contended on behalf of the Defendants that the Plaintiff ought to have filed Suit for declaration and therefore, the Court Fee ought to have been paid under Section 37 of the Tamil Nadu Court Fees and Suit Valuation Act. Even in that application, the Defendant, as Petitioner, let in evidence and marked documents under Exs. P-1 to Ex.P-8. Thus, only after enquiry, the learned III Additional Judge had dismissed the I.A. No. 250 of 2015 holding that the same can be considered during trial. As against that order, when a Civil Revision Petition was filed in CRP. No. 3686/2016, the learned Single Judge held that trial had commenced and the Court can pass order after appointment of Advocate Commissioner and consider the market value of the property. This https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) 23/28 CRP.No.2452 of 2021 decision relied on by the learned Senior Counsel for the Revision Petitioners cannot be made applicable to this case.
17. In this case, the Plaintiff sought declaration of settlement deed as null and void and he has not sought for partition of the suit scheduled property. He had sought exemption to seek the relief of partition at a later date and sought leave of the Court to file such a suit at a later date. For the present, he had only challenged the execution of the settlement deed, executed by the mother of the Plaintiff in favour of the brother of the Plaintiff. The Plaintiff is not a party to the settlement deed to attract Section 37 of the Tamil Nadu Court Fees and Suit Valuation Act. Therefore, the facts of the reported ruling is not applicable to the facts of this case.
18. Even in the reported ruling in (1985) 98 L.W 450 in the case of M.Mohan and others Vs. P.G.Sankaramoorthy and others, it was held that the Suit was filed for partition and separate possession of the Plaintiff's share in the Suit property by metes and bounds, to grant an injunction restraining the Defendants from executing the order of eviction passed by the learned Rent Controller and for future mense profits. On notice, the Defendant filed written statement and before the Suit was taken up for trial, a check slip was issued https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) 24/28 CRP.No.2452 of 2021 directing the Plaintiff to pay Court Fees under Section 37 (1) of Tamil Nadu Court Fees and Suit Valuation Act. Against the issuance of the check slip, the Plaintiff preferred the Revision which was dismissed by this Court and time was granted to the Plaintiff to pay the deficit Court Fees. When the Suit was taken up for trial it was dismissed for non-payment of deficit Court Fees as per the direction of this Court in the CRP preferred by the Plaintiff. Against the CRP, the Plaintiff preferred SLP before the Hon'ble Supreme Court which was also dismissed. After agitating the case up to the Hon'ble Supreme Court, it was held that the Plaintiff cannot be permitted to re-agitate the issue with respect to Court Fees once again. In this case, the Suit is pending and the application filed to reject the plaint was dismissed by the trial Court. Therefore, Section 40 of the Tamil Nadu Court Fees and Suit Valuation Act is not attracted. The learned Principal District Munsif had properly rejected the contention of the first Defendant. The findings given by the learned District Munsif are found proper.
19. In the light of the above discussion, the point for consideration is answered in favour of the Respondent and against the Revision Petitioners. The order dated 20.09.2021 passed in I.A. No. 3 of 2020 in O.S. No. 1 of 2020 by the learned Principal District Munsif, Salem is found proper. https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) 25/28 CRP.No.2452 of 2021 In the result, this Civil Revision Petition is dismissed. The order dated 20.09.2021 passed in I.A. No. 3 of 2020 in O.S. No. 1 of 2020 by the learned Principal District Munsif, Salem is confirmed.
The learned Principal District Munsif, Salem, is directed to proceed with the trial in the suit in O.S.No.1 of 2020 based on the year-war priority and dispose off the same at the earliest.
09.08.2024 Index: Yes/No Internet: Yes/No Speaking Order/Non-speaking Order dh https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) 26/28 CRP.No.2452 of 2021 To
1.The Principal District Munsif, Salem.
2.The Section Officer, Vernacular Records Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) 27/28 CRP.No.2452 of 2021 SATHI KUMAR SUKUMARA KURUP, J dh Order made in CRP.No.2452 of 2021 09.08.2024 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) 28/28