Full Judgment Text
REPORTABLE
2025 INSC 739
IN THE SUPREME COURT OF INDIA
EXTRAORDINARY APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO. 4673 OF 2023
SMT. SHAIFALI GUPTA …PETITIONER(S)
VERSUS
SMT. VIDYA DEVI GUPTA & ORS. …RESPONDENT(S)
WITH
SPECIAL LEAVE PETITION (CIVIL) NO.4674 OF 2023
DEEPAK LALCHANDANI …PETITIONER(S)
VERSUS
SMT. VIDYA DEVI GUPTA & ORS. …RESPONDENT(S)
J U D G M E N T
PANKAJ MITHAL, J.
1. These two special leave petitions have been preferred, one
Signature Not Verified
Digitally signed by
geeta ahuja
Date: 2025.05.20
17:47:56 IST
Reason:
by the contesting defendant No.2 to the suit and the other
by one of the subsequent purchasers (defendant No.5) of
1
some of the suit properties against the rejection of an
application under Order VII Rule 11 of Code of Civil
1
Procedure by the court of first instance as well as the High
Court in revision.
2
2. Special Leave Petition (C) No.4673/2023 preferred by the
main contesting defendant to the suit is taken up as the
lead case, therefore, the facts as stated therein and the
parties as described therein shall be narrated and taken
as a base.
3. The two plaintiffs i.e. the mother and the son being Smt.
Vidya Devi Gupta (plaintiff No.1) and Shri Sudeep Gupta
(plaintiff No.2) instituted a Regular Suit No.630A/2018
against the other son of plaintiff No.1 i.e. Sandeep Gupta
(defendant No.1) and his wife Smt. Shaifali Gupta
(defendant No.2). In the said suit, the two sons of the
defendant No.1 namely Siddharth Gupta and Shantanu
Gupta were arrayed as defendant Nos.3 and 4. The wife of
the plaintiff No.2, Smt. Shalini Gupta and his son Sankalp
Gupta were added as defendant Nos.8 and 9. In addition
to the above family members, Deepak Lalchandani and
1
In short ‘CPC’
2
Smt. Shaifali Gupta vs. Smt. Vidya Devi Gupta & Ors.
2
Surya Prakash Mishra were also arrayed as defendant
Nos.5 and 6 being the subsequent purchasers of some of
the properties mentioned in the plaint.
4.
The aforesaid suit is for partition, possession, declaration,
mandatory & permanent injunction and for accounting
with regard to the properties alleged to be the family
properties purchased out of the funds of the joint family or
derived from the income from the joint family business. In
other words, the suit is basically between the family
members. The mother and one son on one side and the
other son and his family on the other side. The children of
both the sons are non-active or passive parties.
5. According to the plaint allegations, the father of the two
sons referred to above i.e. Shanti Prakash Gupta was into
a tailoring business. Gradually his tailoring business came
to an end. He died in the year 1977. He had no immovable
or movable property at the time of his death.
6. In the year 1982, the two sons jointly started a tailoring
business from a rented shop in New Market, TT Nagar,
Bhopal, in the name of ‘Himalaya Tailors’. This business
was started by them by selling some jewellery of their
3
mother i.e. plaintiff No.1. The said business was carried on
by both of them together but the younger brother (plaintiff
No.2) was appointed and declared to be the sole proprietor.
7.
The family, sometime in 1990, purchased a house in
Harshwardhan Nagar and they started residing in it. They
lived there jointly at least up to the year 2011. It appears
that the elder son (defendant No.1) along with his family
started residing in a house in Shalimar Park which was
jointly purchased by the family from the income of the joint
family business in the year 2014.
8. Side by side the tailoring business, the elder son
(defendant No.1) had started a fabric business in the name
of Hemi Textiles in the year 1986.
9. A shop was purchased by the family in the New Market, TT
Nagar, Bhopal, from the combined income of the family
business of Himalaya Tailors and the Hemi Textiles.
10. It is averred in the plaint that from the original joint family
business of ‘Himalaya Tailors’, both the parties purchased
several properties in the name of different persons of the
family. All the properties were purchased out of the joint
family funds or the income derived from the joint family
4
business. It was categorically asserted that the properties
have been purchased in the name of the plaintiffs and the
defendants or the members of the family and were the joint
properties of the Joint Hindu Family. The said properties
were described in paragraph 6 of the plaint. Some of the
properties mentioned in paragraph 6 of the plaint at Serial
Nos.19, 20 and 21 were sold by Shaifali Gupta (defendant
No.2), wife of the elder son, in favour of defendant Nos.5
and 6 and as such it has been alleged that the said sales
are void.
11. It is on the basis of the above averments that the suit for
declaration, partition, injunction in respect of the suit
properties was instituted by the mother (plaintiff No.1) and
the younger son (plaintiff No.2). In the said suit, the
subsequent purchasers defendant Nos.5 and 6 moved an
application purported to be under Order VII Rule 11 CPC
contending that the suit is not maintainable in view of the
3
provisions of Benami Transaction (Prohibition) Act, 1988 .
It is made clear that no such application was filed by the
main contesting defendants to the suit i.e. by the elder
3
Hereinafter referred to as ‘the Benami Act’
5
brother or his family members. They never alleged that the
suit is not maintainable or is barred by any provision of
the statute.
12.
The above application was contested by the plaintiffs and
a reply was filed stating that the Benami Act (as amended
in 2016) came into force w.e.f. 11.01.2016 and all the
family properties were purchased prior to the above date
and as such the suit would not be hit by the said Act. The
suit is not for adjudication of any matter in relation to
benami transaction as envisaged in the Benami Act rather
it is a suit essentially under the Hindu Succession Act,
4
1956 . The suit properties are Hindu Joint Family
properties and the relief claimed in the suit is purely in
respect of the said properties and as such it does not stand
prohibited by the Benami Act. The said Act nowhere bars
the institution of a suit for a partition, declaration or
injunction in connection with the properties belonging to
the Hindu Joint Family. Moreover, the objections raised
by defendant Nos.5 and 6 to the maintainability of the suit
are mixed questions of fact and law and are to be
4
Hereinafter referred to as ‘the Act’
6
considered only on the basis of the pleadings and the
evidence of the parties and not at the threshold on the
basis of the plaint allegations alone.
13.
The court of first instance by the order impugned dated
25.02.2019 after elaborately discussing the plaint
averments, came to the conclusion that the issue whether
suit properties are the Joint Hindu Family properties or
are the properties of the individual family members and
whether they are liable for partition, is a question
dependent upon facts to be adjudicated upon after the
parties have adduced evidence. On the averments made in
the plaint, the suit is not barred by any law and in view of
the judgment in the case of Popat and Kotecha Property
5
vs. State Bank of India Staff Association , the
provisions of Order VII Rule 11 CPC are not attracted.
Accordingly, application under Order VII Rule 11 CPC was
rejected.
14. Aggrieved by the aforesaid decision, the subsequent
purchasers i.e. defendant Nos.5 and 6 filed Civil Revision
No.324/2019. The said revision has been dismissed by the
5
(2005) 7 SCC 510
7
impugned judgment and order dated 26.09.2022 holding
that the trial court has rightly held that the issue as to
whether the properties belong to the Joint Hindu Family
properties or they have been purchased from the joint
hindu family funds is to be proved by the parties on the
basis of evidence. The plaint of the suit is not liable to be
rejected as from the averments made therein it cannot be
said that it is barred by any statutory provision of law.
15. The decision of the court of first instance rejecting the
application under Order VII Rule 11 CPC was not
challenged by the main contesting parties i.e. the elder
brother and his wife (defendant Nos.1 and 2) or their
children.
16. After having failed in the two courts below in getting the
plaint rejected in exercise of powers under Order VII Rule
11 CPC, Deepaklal Chandani (defendant No.5) alone has
preferred Special Leave Petition (C) No.4674/2023
whereas Special Leave Petition (C) No.4673/2023 has been
preferred by the Shaifali Gupta (defendant No.2).
17. At the very outset, it is pertinent to mention that Shaifali
Gupta (defendant No.2) had neither moved application
8
under Order VII Rule 11 CPC for the rejection of the plaint
nor she has filed any revision challenging the order of the
court of first instance rejecting such an application moved
by the defendant Nos.5 and 6. Therefore, she is not a
person aggrieved by the rejection of the application under
Order VII Rule 11 and cannot be permitted to assail the
impugned orders. She has acquiesced to the jurisdiction of
the trial court and has by her conduct accepted the order
of the court of first instance and chosen to contest the
suits on merits.
18. The defendant Nos.5 and 6 are only subsequent
purchasers of some of the properties. They cannot claim
any knowledge of the nature of the property in the hands
of the original owners. They cannot have any personal
knowledge as to if the said properties in the hands of the
original owners are Joint Hindu Family property or are
their individual properties or they have been acquired
benami by the family members or are the properties
possessed by the female hindu in absolute sense. In such
a situation, they are not the right person to move
application under Order VII Rule 11 CPC for the rejection
9
of the plaint as allegedly barred by Section 4 of the Benami
Act.
19. We have heard Shri Navin Pahwa, learned senior counsel
for the petitioner(s) and Shri Kavin Gulati, learned senior
counsel for the respondents.
20. The submission of learned counsel for the defendants is
twofold. First, the suit is barred by Section 4 read with
Section 14 of the Act, as some of the suit properties are in
the exclusive name of the defendant No.2 and as such
would be treated in entirety as her personal properties and
would not be amenable to partition. Secondly, the suit is
hit by Section 4 of the Act. Lastly, since the properties
stand exclusively in the name of different persons, no party
can claim joint ownership or right of partition in respect
thereof.
21. In response to the above argument, Shri Kavin Gulati,
learned senior counsel for the plaintiffs, submitted that the
bar of Section 4 read with 14 of the Act, was never raised
by the defendants in their application under Order VII Rule
11 CPC and the said point was not argued on their behalf
either before the court of first instance or before the High
10
Court. Therefore, they are not entitled to raise the said plea
for the first time before this Court. Moreover, the above
provisions do not bar a suit of such a nature in respect of
joint family property in any manner. Secondly, the suit is
also not barred by Section 4 of the Act, as according to the
plaint averments, all the properties were purchased from
the nucleus of the joint family, may be in the exclusive
name of some of the family members. They fall in the
exempted category as per Section 2(9)(A) Exception (ii) of
the Benami Act.
22. He further submitted that upon the simple reading of the
plaint allegations, the suit is not barred by any provision
of law and, therefore, Order VII Rule 11 (d) does not stand
attracted so as to reject the plaint. The defence or the
issues raised by the defendants are factual in nature which
are dependent upon the facts to be proved inter se the
parties on the basis of the evidence to be adduced.
23. Section 4 of the Benami Act bars the suit, claim or action
in respect of a property held benami by person at the
behest of the person claiming to be its true owner. It reads
as under:
11
“4(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. ”
24. The above provision bars an action in respect of ‘property
held benami ’. However, whether the property in respect of
which the suit, claim or action has been brought about is
a benami property or not, is the issue of prime
consideration.
25. The plaint allegations all through describe the suit
properties as the Joint Hindu Family properties and that
they have been purchased either from the nucleus of the
Joint Hindu Family property or the income derived from
the joint family business. The properties are not described
as benami in the name of any member of the family.
Therefore, from the plaint reading, the suit properties
cannot ex-facie be held to be benami properties in respect
whereof the suit may not be maintainable in view of
Section 4 of the Benami Act.
26. The Benami Act further defines ‘ benami property’ and
‘ benami transaction’ under Sections 2 (8) and 2 (9) of the
said Act. Benami property is the property which is the
12
subject matter of benami transaction whereas benami
transaction is a property held by a person in respect
whereof consideration has been provided by some other
person but would not include certain categories of
properties such as where a person is holding a property in
a fiduciary capacity for the benefit of another person.
27. In such circumstances, whether a property is a benami,
has to be considered not in the light of Section 4 of the
Benami Act alone but also in connection with Sections 2
(8) and 2 (9) of the said Act i.e. whether the property if
benami falls in the exception. It is only where the property
is benami and does not fall within the exception contained
in Sub-Section (9) of Section 2 that a suit may be said to
be barred. However, the issue whether the property is
benami and is not covered by the exception, is again an
issue to be decided on the basis of evidence and not simply
on mere averments contained in the plaint. The defendants
have to adduce evidence to prove the property to be
benami .
13
6
28. In Pawan Kumar vs. Babu Lal , a similar issue arose
before this Court in a matter concerning rejection of plaint
under Order VII Rule 11 (d) CPC. This Court held that for
rejecting a plaint, the test is whether from the statement
made in the plaint it appears without doubt or dispute that
the suit is barred by any statutory provision. Where a plea
is taken that the suit is saved by the exception to the
benami transaction, it becomes the disputed question of
fact which has to be adjudicated on the basis of the
evidence. Therefore, the plaint cannot be rejected at the
stage of consideration of application under Order VII Rule
11 CPC.
29. The ratio of the above case squarely applies to the facts of
the case at hand. Accordingly, in our opinion, the courts
below have not committed any error of law in rejecting the
application under Order VII Rule 11 CPC on the above
score.
30. As regard the contention that the plaint is also hit by
Section 14 of the Act, it is important to point out that no
such specific plea was taken by the defendants in the
6
(2019) 4 SCC 367
14
application under Order VII Rule 11 CPC. Such a plea was
never raised and argued before either of the courts below.
There is no finding by any court on the above aspect.
Therefore, it has rightly been submitted by the counsel for
the plaintiff that the defendants cannot be permitted to
raise such a plea for the first time in the Special Leave
Petition without there being any foundation to that effect.
31. More importantly, Section 14 of the Act simply provides
that the property possessed by a female Hindu shall be
held by her as a full owner. It does not bar or prohibit a
suit in respect of such a property. Therefore, in the
absence of any bar contained in the above provision, the
suit plaint is not liable to be rejected as barred by law.
32. The courts below have rejected the application filed by
defendant Nos.5 and 6 under Order VII Rule 11 CPC and
have refused to reject the plaint as barred by any statute.
It means that the parties are at liberty to contest the suit
on merits. They have right to get the necessary relevant
issues framed in the suit including that of suit being
barred by any provision of law and if any such issue is
framed, it will be open for the court to consider the same
15
on merits after the parties have led evidence. In such a
situation, the defendants have not suffered any prejudice
and there is no miscarriage of justice so as to permit them
to avail the discretionary jurisdiction of this Court under
Article 136 of the Constitution of India.
33. Accordingly, we do not deem it necessary to entertain these
Special Leave Petitions and the same are dismissed.
.............……………………………….. J.
(PANKAJ MITHAL)
.............……………………………….. J.
(AHSANUDDIN AMANULLAH)
NEW DELHI;
MAY 20, 2025.
16
2025 INSC 739
IN THE SUPREME COURT OF INDIA
EXTRAORDINARY APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO. 4673 OF 2023
SMT. SHAIFALI GUPTA …PETITIONER(S)
VERSUS
SMT. VIDYA DEVI GUPTA & ORS. …RESPONDENT(S)
WITH
SPECIAL LEAVE PETITION (CIVIL) NO.4674 OF 2023
DEEPAK LALCHANDANI …PETITIONER(S)
VERSUS
SMT. VIDYA DEVI GUPTA & ORS. …RESPONDENT(S)
J U D G M E N T
PANKAJ MITHAL, J.
1. These two special leave petitions have been preferred, one
Signature Not Verified
Digitally signed by
geeta ahuja
Date: 2025.05.20
17:47:56 IST
Reason:
by the contesting defendant No.2 to the suit and the other
by one of the subsequent purchasers (defendant No.5) of
1
some of the suit properties against the rejection of an
application under Order VII Rule 11 of Code of Civil
1
Procedure by the court of first instance as well as the High
Court in revision.
2
2. Special Leave Petition (C) No.4673/2023 preferred by the
main contesting defendant to the suit is taken up as the
lead case, therefore, the facts as stated therein and the
parties as described therein shall be narrated and taken
as a base.
3. The two plaintiffs i.e. the mother and the son being Smt.
Vidya Devi Gupta (plaintiff No.1) and Shri Sudeep Gupta
(plaintiff No.2) instituted a Regular Suit No.630A/2018
against the other son of plaintiff No.1 i.e. Sandeep Gupta
(defendant No.1) and his wife Smt. Shaifali Gupta
(defendant No.2). In the said suit, the two sons of the
defendant No.1 namely Siddharth Gupta and Shantanu
Gupta were arrayed as defendant Nos.3 and 4. The wife of
the plaintiff No.2, Smt. Shalini Gupta and his son Sankalp
Gupta were added as defendant Nos.8 and 9. In addition
to the above family members, Deepak Lalchandani and
1
In short ‘CPC’
2
Smt. Shaifali Gupta vs. Smt. Vidya Devi Gupta & Ors.
2
Surya Prakash Mishra were also arrayed as defendant
Nos.5 and 6 being the subsequent purchasers of some of
the properties mentioned in the plaint.
4.
The aforesaid suit is for partition, possession, declaration,
mandatory & permanent injunction and for accounting
with regard to the properties alleged to be the family
properties purchased out of the funds of the joint family or
derived from the income from the joint family business. In
other words, the suit is basically between the family
members. The mother and one son on one side and the
other son and his family on the other side. The children of
both the sons are non-active or passive parties.
5. According to the plaint allegations, the father of the two
sons referred to above i.e. Shanti Prakash Gupta was into
a tailoring business. Gradually his tailoring business came
to an end. He died in the year 1977. He had no immovable
or movable property at the time of his death.
6. In the year 1982, the two sons jointly started a tailoring
business from a rented shop in New Market, TT Nagar,
Bhopal, in the name of ‘Himalaya Tailors’. This business
was started by them by selling some jewellery of their
3
mother i.e. plaintiff No.1. The said business was carried on
by both of them together but the younger brother (plaintiff
No.2) was appointed and declared to be the sole proprietor.
7.
The family, sometime in 1990, purchased a house in
Harshwardhan Nagar and they started residing in it. They
lived there jointly at least up to the year 2011. It appears
that the elder son (defendant No.1) along with his family
started residing in a house in Shalimar Park which was
jointly purchased by the family from the income of the joint
family business in the year 2014.
8. Side by side the tailoring business, the elder son
(defendant No.1) had started a fabric business in the name
of Hemi Textiles in the year 1986.
9. A shop was purchased by the family in the New Market, TT
Nagar, Bhopal, from the combined income of the family
business of Himalaya Tailors and the Hemi Textiles.
10. It is averred in the plaint that from the original joint family
business of ‘Himalaya Tailors’, both the parties purchased
several properties in the name of different persons of the
family. All the properties were purchased out of the joint
family funds or the income derived from the joint family
4
business. It was categorically asserted that the properties
have been purchased in the name of the plaintiffs and the
defendants or the members of the family and were the joint
properties of the Joint Hindu Family. The said properties
were described in paragraph 6 of the plaint. Some of the
properties mentioned in paragraph 6 of the plaint at Serial
Nos.19, 20 and 21 were sold by Shaifali Gupta (defendant
No.2), wife of the elder son, in favour of defendant Nos.5
and 6 and as such it has been alleged that the said sales
are void.
11. It is on the basis of the above averments that the suit for
declaration, partition, injunction in respect of the suit
properties was instituted by the mother (plaintiff No.1) and
the younger son (plaintiff No.2). In the said suit, the
subsequent purchasers defendant Nos.5 and 6 moved an
application purported to be under Order VII Rule 11 CPC
contending that the suit is not maintainable in view of the
3
provisions of Benami Transaction (Prohibition) Act, 1988 .
It is made clear that no such application was filed by the
main contesting defendants to the suit i.e. by the elder
3
Hereinafter referred to as ‘the Benami Act’
5
brother or his family members. They never alleged that the
suit is not maintainable or is barred by any provision of
the statute.
12.
The above application was contested by the plaintiffs and
a reply was filed stating that the Benami Act (as amended
in 2016) came into force w.e.f. 11.01.2016 and all the
family properties were purchased prior to the above date
and as such the suit would not be hit by the said Act. The
suit is not for adjudication of any matter in relation to
benami transaction as envisaged in the Benami Act rather
it is a suit essentially under the Hindu Succession Act,
4
1956 . The suit properties are Hindu Joint Family
properties and the relief claimed in the suit is purely in
respect of the said properties and as such it does not stand
prohibited by the Benami Act. The said Act nowhere bars
the institution of a suit for a partition, declaration or
injunction in connection with the properties belonging to
the Hindu Joint Family. Moreover, the objections raised
by defendant Nos.5 and 6 to the maintainability of the suit
are mixed questions of fact and law and are to be
4
Hereinafter referred to as ‘the Act’
6
considered only on the basis of the pleadings and the
evidence of the parties and not at the threshold on the
basis of the plaint allegations alone.
13.
The court of first instance by the order impugned dated
25.02.2019 after elaborately discussing the plaint
averments, came to the conclusion that the issue whether
suit properties are the Joint Hindu Family properties or
are the properties of the individual family members and
whether they are liable for partition, is a question
dependent upon facts to be adjudicated upon after the
parties have adduced evidence. On the averments made in
the plaint, the suit is not barred by any law and in view of
the judgment in the case of Popat and Kotecha Property
5
vs. State Bank of India Staff Association , the
provisions of Order VII Rule 11 CPC are not attracted.
Accordingly, application under Order VII Rule 11 CPC was
rejected.
14. Aggrieved by the aforesaid decision, the subsequent
purchasers i.e. defendant Nos.5 and 6 filed Civil Revision
No.324/2019. The said revision has been dismissed by the
5
(2005) 7 SCC 510
7
impugned judgment and order dated 26.09.2022 holding
that the trial court has rightly held that the issue as to
whether the properties belong to the Joint Hindu Family
properties or they have been purchased from the joint
hindu family funds is to be proved by the parties on the
basis of evidence. The plaint of the suit is not liable to be
rejected as from the averments made therein it cannot be
said that it is barred by any statutory provision of law.
15. The decision of the court of first instance rejecting the
application under Order VII Rule 11 CPC was not
challenged by the main contesting parties i.e. the elder
brother and his wife (defendant Nos.1 and 2) or their
children.
16. After having failed in the two courts below in getting the
plaint rejected in exercise of powers under Order VII Rule
11 CPC, Deepaklal Chandani (defendant No.5) alone has
preferred Special Leave Petition (C) No.4674/2023
whereas Special Leave Petition (C) No.4673/2023 has been
preferred by the Shaifali Gupta (defendant No.2).
17. At the very outset, it is pertinent to mention that Shaifali
Gupta (defendant No.2) had neither moved application
8
under Order VII Rule 11 CPC for the rejection of the plaint
nor she has filed any revision challenging the order of the
court of first instance rejecting such an application moved
by the defendant Nos.5 and 6. Therefore, she is not a
person aggrieved by the rejection of the application under
Order VII Rule 11 and cannot be permitted to assail the
impugned orders. She has acquiesced to the jurisdiction of
the trial court and has by her conduct accepted the order
of the court of first instance and chosen to contest the
suits on merits.
18. The defendant Nos.5 and 6 are only subsequent
purchasers of some of the properties. They cannot claim
any knowledge of the nature of the property in the hands
of the original owners. They cannot have any personal
knowledge as to if the said properties in the hands of the
original owners are Joint Hindu Family property or are
their individual properties or they have been acquired
benami by the family members or are the properties
possessed by the female hindu in absolute sense. In such
a situation, they are not the right person to move
application under Order VII Rule 11 CPC for the rejection
9
of the plaint as allegedly barred by Section 4 of the Benami
Act.
19. We have heard Shri Navin Pahwa, learned senior counsel
for the petitioner(s) and Shri Kavin Gulati, learned senior
counsel for the respondents.
20. The submission of learned counsel for the defendants is
twofold. First, the suit is barred by Section 4 read with
Section 14 of the Act, as some of the suit properties are in
the exclusive name of the defendant No.2 and as such
would be treated in entirety as her personal properties and
would not be amenable to partition. Secondly, the suit is
hit by Section 4 of the Act. Lastly, since the properties
stand exclusively in the name of different persons, no party
can claim joint ownership or right of partition in respect
thereof.
21. In response to the above argument, Shri Kavin Gulati,
learned senior counsel for the plaintiffs, submitted that the
bar of Section 4 read with 14 of the Act, was never raised
by the defendants in their application under Order VII Rule
11 CPC and the said point was not argued on their behalf
either before the court of first instance or before the High
10
Court. Therefore, they are not entitled to raise the said plea
for the first time before this Court. Moreover, the above
provisions do not bar a suit of such a nature in respect of
joint family property in any manner. Secondly, the suit is
also not barred by Section 4 of the Act, as according to the
plaint averments, all the properties were purchased from
the nucleus of the joint family, may be in the exclusive
name of some of the family members. They fall in the
exempted category as per Section 2(9)(A) Exception (ii) of
the Benami Act.
22. He further submitted that upon the simple reading of the
plaint allegations, the suit is not barred by any provision
of law and, therefore, Order VII Rule 11 (d) does not stand
attracted so as to reject the plaint. The defence or the
issues raised by the defendants are factual in nature which
are dependent upon the facts to be proved inter se the
parties on the basis of the evidence to be adduced.
23. Section 4 of the Benami Act bars the suit, claim or action
in respect of a property held benami by person at the
behest of the person claiming to be its true owner. It reads
as under:
11
“4(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. ”
24. The above provision bars an action in respect of ‘property
held benami ’. However, whether the property in respect of
which the suit, claim or action has been brought about is
a benami property or not, is the issue of prime
consideration.
25. The plaint allegations all through describe the suit
properties as the Joint Hindu Family properties and that
they have been purchased either from the nucleus of the
Joint Hindu Family property or the income derived from
the joint family business. The properties are not described
as benami in the name of any member of the family.
Therefore, from the plaint reading, the suit properties
cannot ex-facie be held to be benami properties in respect
whereof the suit may not be maintainable in view of
Section 4 of the Benami Act.
26. The Benami Act further defines ‘ benami property’ and
‘ benami transaction’ under Sections 2 (8) and 2 (9) of the
said Act. Benami property is the property which is the
12
subject matter of benami transaction whereas benami
transaction is a property held by a person in respect
whereof consideration has been provided by some other
person but would not include certain categories of
properties such as where a person is holding a property in
a fiduciary capacity for the benefit of another person.
27. In such circumstances, whether a property is a benami,
has to be considered not in the light of Section 4 of the
Benami Act alone but also in connection with Sections 2
(8) and 2 (9) of the said Act i.e. whether the property if
benami falls in the exception. It is only where the property
is benami and does not fall within the exception contained
in Sub-Section (9) of Section 2 that a suit may be said to
be barred. However, the issue whether the property is
benami and is not covered by the exception, is again an
issue to be decided on the basis of evidence and not simply
on mere averments contained in the plaint. The defendants
have to adduce evidence to prove the property to be
benami .
13
6
28. In Pawan Kumar vs. Babu Lal , a similar issue arose
before this Court in a matter concerning rejection of plaint
under Order VII Rule 11 (d) CPC. This Court held that for
rejecting a plaint, the test is whether from the statement
made in the plaint it appears without doubt or dispute that
the suit is barred by any statutory provision. Where a plea
is taken that the suit is saved by the exception to the
benami transaction, it becomes the disputed question of
fact which has to be adjudicated on the basis of the
evidence. Therefore, the plaint cannot be rejected at the
stage of consideration of application under Order VII Rule
11 CPC.
29. The ratio of the above case squarely applies to the facts of
the case at hand. Accordingly, in our opinion, the courts
below have not committed any error of law in rejecting the
application under Order VII Rule 11 CPC on the above
score.
30. As regard the contention that the plaint is also hit by
Section 14 of the Act, it is important to point out that no
such specific plea was taken by the defendants in the
6
(2019) 4 SCC 367
14
application under Order VII Rule 11 CPC. Such a plea was
never raised and argued before either of the courts below.
There is no finding by any court on the above aspect.
Therefore, it has rightly been submitted by the counsel for
the plaintiff that the defendants cannot be permitted to
raise such a plea for the first time in the Special Leave
Petition without there being any foundation to that effect.
31. More importantly, Section 14 of the Act simply provides
that the property possessed by a female Hindu shall be
held by her as a full owner. It does not bar or prohibit a
suit in respect of such a property. Therefore, in the
absence of any bar contained in the above provision, the
suit plaint is not liable to be rejected as barred by law.
32. The courts below have rejected the application filed by
defendant Nos.5 and 6 under Order VII Rule 11 CPC and
have refused to reject the plaint as barred by any statute.
It means that the parties are at liberty to contest the suit
on merits. They have right to get the necessary relevant
issues framed in the suit including that of suit being
barred by any provision of law and if any such issue is
framed, it will be open for the court to consider the same
15
on merits after the parties have led evidence. In such a
situation, the defendants have not suffered any prejudice
and there is no miscarriage of justice so as to permit them
to avail the discretionary jurisdiction of this Court under
Article 136 of the Constitution of India.
33. Accordingly, we do not deem it necessary to entertain these
Special Leave Petitions and the same are dismissed.
.............……………………………….. J.
(PANKAJ MITHAL)
.............……………………………….. J.
(AHSANUDDIN AMANULLAH)
NEW DELHI;
MAY 20, 2025.
16