2012 (4) TMI 773

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....pondent No. 1 filed the suit against the petitioners and respondent No. 2 seeking declaration of title and permanent injunction alleging that way back the respondent No. 1 has purchased the land in suit benami in the name of his mother. It is contended that the said sale deed was executed on 18-7-1979. It is further contended that the said land was never purchased from the property of joint Hindu family. Though in the plaint description of the genealogy of family was given but the claim was made that on payment of amount of consideration by the respondent No. 1 sale deed was got executed. It is contended that since the respondent No. 1.plaintiff was honestly believing the defendants-petitioners herein and the respondent No. 2 but fraudulent....

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....nsel for the petitioners that a bare perusal of provisions of section 4 of the Act makes it clear that the suit as filed by respondent No. 1, for the relief aforesaid, was prohibited under the law made by the Parliament. It is contended that if it was mentioned in the plaint that the benami transaction had taken place even prior to coming into force of the Act, the same would be hit by provisions of section 4 of the Act. It is thus, contended that the suit as filed by the respondent No. 1 was hit by sub-section (1) of section 4 of the Act and the same was not maintainable. The plaint was liable to be rejected. However, this particular aspect has not been considered by the Court below and the application filed by the petitioners has wrongly ....

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....r is to file a suit or to make a claim and not that a particular transaction is benami or not. If a suit is filed after coming into force of the Act, claiming any right, title or interest on the basis of any benami transaction, whether it was done prior to coming into force of the Act or after coming into force of the Act, would be barred under sub-section (1) of section 4 of the Act. For proper appreciation, the provision of sub-section (1) of section 4 of the Act is reproduced:- "(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 propert....

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....he family of the respondents. In para 6, the respondent No. 1 has categorically contended that he being less literate was not in a position to obtain an employment and, therefore, he started taking the lands on Shikmi for the purposes of making livelihood. It is contended by him that he raised the money by such agricultural work. In paras 7, 8 and 9 he categorically contended that out of funds raised by him he purchased the land benami in the name of his mother on 18-7-1979. Thus, it was the claim set forth by the respondent No. 1 that the land was benami purchased by him in the name of his mother and, therefore, his mother was having no title over the land in dispute and was not competent to execute the Will in favour of anybody. The praye....