TaxTMI 
TaxTMI 
TaxTMI 
2023 (2) TMI 384
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....facts of the case are that petitioner-Niranjan Kaur (now deceased) had purchased suit property from the funds given to her by her son, who is the husband of plaintiff/respondent No.1 herein. It is the pleaded case of the plaintiff/respondent No.1 that prior to buying the said property in the name of petitioner-Niranjan Kaur, there was mutual agreement between the parties that the house in question/suit property will be transferred in the name of respondent No.1 and her children. However, as relationship between the parties became strained, petitioner refused to transfer suit property in the name of respondent No.1. Accordingly, respondent No.1 filed a Civil Suit dated 12.06.2015 (Annexure P1) for declaration, permanent injunction and mandat....
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....enami Act. It is further submitted that in any event, this aspect of the matter will be taken into consideration by the learned trial Court at the time of adjudicating upon the Suit. It is submitted that the question whether the present transaction was benami or not, is a matter of evidence and therefore, application under Order 7 Rule 11 CPC will not lie. Learned counsel also places reliance upon judgments in Civil Appeal No.3367 of 2019 titled as "Pawan Kumar Vs. Babulal Since Deceased through LRs & Others"; RFA No.855 of 2018 titled as "Anis Ur Rehman Vs. Mohd. Tahir & Others" and RFA No.522 of 2017 titled as "Manoj Arora Vs. Mamta Arora". No other argument is raised on behalf of the parties. I have heard learned counsel for the partie....
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....en provided or paid out of the known sources of the individual; (iv) any person in the name of his brother or sister or lineal ascendant or descendant, where the names of brother or sister or lineal ascendant or descendant and the individual appear as joint-owners in any document, and the consideration for such property has been provided or paid out of the known sources of the individual; or (B) a transaction or an arrangement in respect of a property carried out or made in a fictitious name; or (C) a transaction or an arrangement in respect of a property where the owner of the property is not aware of, or, denies knowledge of, such ownership; (D) a transaction or an arrangement in respect of a property where the person providing th....
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....er Section 2(9) of the Benami Act, evidence is required to be led. It is an established position in law that under Order 7 Rule 11 CPC, only averments made in the plaint have to be seen and nothing else can be considered while adjudicating upon such an application. In order to establish that the suit property is benami, and it was purchased out of funds sent by son of the petitioner, and it falls under the prohibition of Section 4, or falls in the exception under Section 2(9), evidence will have to be led. As such, in the present case, plaint could not have been rejected under Order 7 Rule 11 CPC. Moreover, as per judgment rendered by the Hon'ble Supreme Court in Civil Appeal No.3367 of 2019 (supra) it has been held as follows:- "13. In ....
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.... aside the view taken by the courts below and dismiss the application preferred by the second defendant under Order 7, Rule 11 CPC. Since the Suit has been pending, since 2006, we direct the Trial Court to expedite the matter and dispose of the pending Suit as early as possible and preferably within six months from today. Needless to say that the merits of the matter will be gone into independently by the Trial Court." In para 9 of the judgment in RFA No.855 of 2018 (supra) it has been held as under:- "9. Accordingly, it is held that there did not exist any vested right that a particular transaction was specified as an exempted transaction as not being a barred benami transaction under the expressions 'fiduciary capacity' and 'trustee' u....