2005 (9) TMI 684

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....ers submitted that plot numbers 224 and 889 as also 990 were purchased by registered deeds dated 15.9.1956 and 22.7.1965 by Mostt. Manorama, who was not a member of the coparcenery of Ganouri Mahto, Basudeo Prasad and Brahamdeo Pd. Singh and the said property having been purchased from her Stridhan was never a joint property, although, she was the wife of Basudeo Prasad. He further stated that in fact suit for declaration of title over the property of Mostt. Manorama had been filed in the garb of a Partition suit for grabbing the same. He also averred that if the suit property is held to be a joint family property then it has to be held that the sale was a Benami transaction which the Court can not do in view of the provision of Benami Transaction (Prohibition) Act, 1988 (hereinafter referred to as the Act for the sake of brevity). He further claimed that the only other option in case the property of a stranger to co-parcenery was claimed to be joint family property, was to challenge the title of the stranger and claim recovery of possession in a Title Suit on payment of ad-valorem Court fee, but in this case neither any relief has been claimed nor any ad-valorem Court fee has been....

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....em paid consideration amount out of the joint family fund due to which the said lands were through out been mutated in the name of joint family and they regularly paid rent and obtained rent receipts. Learned counsel for the opposite parties also averred that there was no dispute during the life time of Basudeo Prasad in the joint management and enjoyment of the said properties by the family but after his death the problems arose and hence there was necessity of filing a Partition Suit. 8. Learned counsel for the opposite parties further stated that since the deed in question was of a date much prior to the coming into force of the Act in 1988 and no claim for getting it declared as a benami transaction having been raised in the plaint, there was neither any occasion for payment of ad-valcrem Court fee nor there was any question of bar of the Act. He also averred that Court fee matter was not raised by the defendants in their objection, hence neither there was any occasion for the learned Court below to give any finding in that regard nor even the requirements of the provision of Order VII, Rule 11 of the Code, under which the defendants raised their objection, was fulfilled. It....

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....ceners in the family; of (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 a capacity. 10. There had been various views with respect to the nature, effect and implication of said two provisions of the Act. The Hon'ble Apex Court in its decision in case of Mithilesh Kumari and Anr. v. Prem Behari Khare , has held that the Act was retro-active if the matter was subjudice at the time of coming into force of the Act on 5.9.1988 at any stage and hence the suit, if filed even before, was not maintainable in view of retroactive operation of the Act. But the said decision was over-ruled by a Larger Bench of the Hon'ble Apex Court in case of R. Rajagopal Reddy (supra), in which it was finally held by the Hon'ble Apex Court that Section 3 of the Act was prospective in nature as the prohibition for entering into benami transaction came into force on 5.9.1988, when new liability or new offence was provided, and that even Section 4 of the Act does not apply retrospectively. It was also ....

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.... duplicate; (f) where the plaintiff fails to comply with the provision of Rule 9. 13. On the other hand, the question of deciding the issue of maintainability as a preliminary issue is provided under Order XIV, Rule 2 of the Code which reads as follows : Rule 2-Court to pronounce judgment on all issues.- (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall subject to the provisions of Sub-rule (2), pronounce judgment in all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof on an issue of law only, it may try that issue first if that issue relates to- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit postpone the settlement of the other issues until after that issue has been determined, may deal with the suit in accordance with the decision on that issue. 14. So far the plea of rejection of plaint is concerned, it can be done only as per the aforesaid provision of Order VII Rule 11 of the Code. But here ....