Court sets aside dismissal order, finds suit barred by Benami Act due to lack of evidence

The court set aside the order dismissing the application under Order 7 Rule 11 CPC, rejected the plaint, and found the suit barred by the Benami Transactions (Prohibition) Act, 1988, due to lack of evidence of a Hindu Undivided Family (HUF) or properties purchased from HUF funds. The revision petition was allowed, and the court issued the order dasti under the Court Master's signature.

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Issues Involved:
1. Dismissal of the application under Order 7 Rule 11 CPC.
2. Partition of properties.
3. Applicability of the Benami Transactions (Prohibition) Act, 1988.
4. Existence of Hindu Undivided Family (HUF).
5. Application under Order 6 Rule 17 CPC.

Detailed Analysis:

1. Dismissal of the application under Order 7 Rule 11 CPC:
The petitioner challenged the order dated 22.09.2017, which dismissed their application under Order 7 Rule 11 CPC. The application contended that the suit for partition was filed concerning properties exclusively owned and possessed by Shri Surender Singh Kalsi and his wife, the petitioner No. 2. The court found that the trial court erred in dismissing the application solely on the ground that an issue had been framed and it would be a matter of trial to determine the nature of the property. The court emphasized that since there were no averments of a Hindu Undivided Family (HUF) or properties purchased out of HUF funds, no evidence could be led on this aspect. Consequently, the suit was barred by Section 4(1) of the Benami Transactions (Prohibition) Act, 1988.

2. Partition of properties:
The respondent had filed a suit for partition of property No. U-2, Hans Apartment, East Arjun Nagar, Delhi, and the family business premises at 2/122, Nakul Gali, Vishwas Nagar, Shahdara, Delhi. The petitioners argued that these properties were exclusively owned by Shri Surender Singh Kalsi and his wife. The court noted that the plaintiff's case was that the properties were purchased in the name of Shri Surender Singh Kalsi and his wife due to familial love and financial assistance provided by the plaintiff and his other son, Shri Mahender Singh. However, the court found no basis for a partition suit as the properties were not part of a joint family estate.

3. Applicability of the Benami Transactions (Prohibition) Act, 1988:
The court examined the applicability of the Benami Transactions (Prohibition) Act, 1988, as it stood before its 2016 amendment. Section 4(1) of the Act prohibits any suit to enforce a right in respect of any property held benami. The court found that the suit was barred under this provision as the properties were held in the names of Shri Surender Singh Kalsi and his wife, and there was no claim of them being held in a fiduciary capacity or as part of a HUF.

4. Existence of Hindu Undivided Family (HUF):
The petitioners contended that the suit was barred as there was no Hindu Undivided Family (HUF) or HUF funds involved. The court noted that the plaintiff had not made any averments about the existence or creation of a HUF or that the properties were purchased out of HUF funds. The court cited a coordinate bench's decision in 'Surender Kumar Khurana Vs. Tilak Raj Khurana & Ors.,' which held that joint funds or properties are not equivalent to HUF properties. Therefore, the plaintiff's claim did not fall under the exceptions provided in Section 4(3) of the Benami Transactions (Prohibition) Act, 1988.

5. Application under Order 6 Rule 17 CPC:
The respondents had filed an application under Order 6 Rule 17 CPC to amend the plaint to include a plea of the existence of a HUF. This application was dismissed by the trial court, and no appeal was filed against this dismissal. The court highlighted that without pleadings about the existence of a HUF, no evidence could be led on this aspect. The dismissal of the amendment application further weakened the plaintiff's case.

Conclusion:
The court set aside the impugned order dated 22.09.2017, allowed the application under Order 7 Rule 11 CPC, and rejected the plaint under Order 7 Rule 11(d) CPC. The revision petition was allowed, and the suit was found to be barred by the Benami Transactions (Prohibition) Act, 1988. The order was issued dasti under the signatures of the Court Master.

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