^%^" "N^v/^ -^ ./» n^i COURT OF CHHATT1SGARH AT BiLASPUi Sinejie Bench : Hon'ble Sjyl lA io.9 of 2< Satyendra Dwivedi, aged about 46 years, Son of Late Babula! D.vsveds, Resident of Tiwari Chali, Jarhabhatha, iilaspur. Tahsil and District Biispur (C.c.5 i\s\<T 1. Smt. Hemiata Dwivedi, aged about 70 years, Widow of Late Babuial Dwivedi; 2. Shaiiendra Dwivedi. aged about 35 years, Son of Babuia! D'A'ivedi; 3. Smt. Umeshwari Dwivedi, aged about 33 vears, Wife of Shri Shaiiendra Dwivedi; 4. Manoj Kumar, aged about 33 years Son of Late Babuia! D'A'iveds; Aii residents of Rajendra Nagar, Bllaspur, Tahsi! and District Bilaspur (C.G.) 5. Smt. Shalini Pandey, aged about 35 years, v/idov,' of late Ashwani Pandey, through Shiv Kumar Pandey, Retired Headmaster, viltage Puran, Post Puran, Tahsii Mungeii, District Biiaspur (C.G.) C/o Hemlata Dwivedi, Rajsndra Nagar, Bilaspur, Tahsii snd District Bilaspur (C.G.) It. •AppI;casf'e»ynder,Sectlon':^W«A'-bfthe Civii Procedure Code, 190S Present: Shri Maiay Kumar Bhaduri, counsel for ihe appellant. Shri Sachin Singh Rajput v/ith Shri Anant Bajpai, counses the Caveaiors/respondents. De'iversd on thls 2-ift- dayof Apri!, 2008) The appeitant/ptaintiff is aggrieved by an order dated 29.12.2 passed in Civii Suit No. 20-A of 2007 bv the Additionai District Bilaspur whereby on an appiicatlon filed by the responderits/defendE under Order 7 Rule 11 of C.P.C. the sult was dlsmlssed as barred ?s"a%. ea& "^ Section 4 (1) of the Benami Transactions (Prohlbition) Act, 198S (hereinafter referred to as the Act of 1988). 2) Admittediy, the appellant/plaintiff and the respondent/defendant No.2 are the sons of respondent/defendant No.1 - Smt. Hemiata Dwivedi, who is the widow of Babuiai Dwivedi. A registered sa!e deed was executed on 11.10.1974 wherein Smt. Hemiata Dwivedi was shown as fhe ourchaser of fhs suit orooertv. On 11.04.2005, Hemiata Owivedi executed a sale deed of the suit property in the name of respondent No.2 and his wife/respondent No.3. it is also not in dispute that in Civil Suit No. 43- A/2005 instituted by respondents No.2 & 3 agalnst respondent No.1/Smt. Hemiata Dwivedi for declaration of tit!e and possesslon over the suit properiy, a compromise was eftscted in Lok Adaiat on 25.09.2005 between the parties whereupon the suit was decre&twhiie declaring that respondents No.2 & 3 were the owners and in possession of the suit property and were entitled to have their name mutated over the same. 3) The appeilant/plaintiff instituted the suit praying for the foiiowing reliets:: "(13)ZR f^ 'sn^ ?rNTfT ^J?TT t f^ (a?) vs f?& 'CTT^T A TTST TT yiyuii cjft gff^iftT 'cm^n aft ^Tira' fS; '^a'. 's-:' "S^t • SII'Hd'i'U %Sf ^> 'T2T35T 'cTR' <iu4KTl '^ tfyf] TT^arf^t pb^'cB ~i ^ ~<^ IT? ^?T^ '^f yR:ict!41 <bj-i1c^ —I ~s^. 'iTR •"utRY( ^R cR^ 3Tf^3'R 7T BM '?' ?R' 'ti^uRrl W TTS ^Pl' 1 W:trR?T sT'^ ^ yK1':!!';?!'""! "T Hi'l!* 11—04—2005 'pl' ^ra' TtrfeT u'^.'Kjr) 35^' q;? .^ifSraiT^ ?; 'gM rlBTI ''TR' 'H'-IJ'TC* f^ir ?p?? B^CT c^ '4"Tl^ii KW ^ f^fis. TR ii?>'1!''ti 11—04—2005 <^!din ^Ft ^T ~^ff3> girar? TR frir ^fffi '^s I?gwT? 'a^ff? ^i'iiiipi-') '^' di'wPlA riSTf cBf toUlcb'; f5.r|i'cb 25—09—2005<^ 'SWT ^ "IT^ W?! rOn 'RTA ^ yf?)d|({^ cptijqi —inayr 2 sif gwff tBt^ gn6ra)K ?. Ts€v '€Kf. t' ^cs'^. ^.r^. "'• SM& 1 '%. fe) 'sr? Rp 'cTT^t A TIST Tf tJltjUi c|?t ^iTTg' fS; ^IT)^^ 'nDa; gRTiHn 'Si "-gUlci ?P?IcB-1 gRT inf?n g(I$(fe fS.'li'cb 25—09—2005 'af^t 3')' T?? T? cRT^ fiRT "I'l'Tl'if ">!l<lld->t ^ tfl'wR't' ?I®tcCT fe4|c( '"ft fel^ yRtdlcf!11"! ^ W<T cpl t ?? ^T^t tR ?;ETa?Bffl' ''I^T k\ (y] 'S? fS) wA 3't yfnqi<{i<iui ^ ">.ii'y!cj^nri w^. T^S 3RT ST^iN "T i.»cb>;ui •ssf TTf^fN.rf^if n "yiyi^o |(i.nfMi 'gr^ fS.ndri uir?!" ^ 4) it was averred by the appetlant/plaintiff in the piaint that iate Babulal Dwivedi had purohased the suit property ostensibly in the name of Hemlata Dwivedi since officiai permission for the same was rejected by the Govemment. it was further pieaded that the sale deed of the sult property executed by Hemlata Dwivedi in favour of respondents No.2 & 3 v/as without consideration and got executed by the respondenis No.2 & 3 from Hemiata Dwivedi taking undue advantage of fiduciary reiattonship. It was aiso averred that the mutation proceedinas initiated bv the respondents No.2 & 3 was dismissed upon an objection preferred by the appeiiant/plaintiff. To overeome this, the respondents No.2 & 3 in collusion with respondent No.1 instituted a Civii Suit No. 43-A/2005 and fraudulentty obtained a decree for declaration oftifle and possession from the Lok Adatat, Bilaspur. 5) The respondents/defendants No.1 & 2 made an application under Order 7 Rute 11 of the C.P.C. for rejection of the plaint on the ground that the suit was barred under the Act of 1988. By the impugned order, the trial Court ailowed the appiication and held that the suit was barred under Section 4 (1) of the Act of 1988. Learned counsei for the oarties were heard at length. Record was 4 ^ 7) It is weil settled that for considering an appiicatlon under Order 7 Ruie 11 C.P.C. the otaint averments are to be read as a whote. As held by the Apex Court in Popat and Koteoha Property v. State Bank of India Staff Association, (2005) 7 SCC 510 paragraph 19 whiie considering an appiication under Order 7 Rule 11 C.P.C. compariiTientaiization, dissection, segregation and inversions of the yarious Daraaraohs in the Dlalnt is not Dermissibte because If such a course is adopted It would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. !t is thus trite law that the entlre olaint and not mereiy a piea wouid be considered. in Roop Lal Sathl v. Nachhattar Singh Gili, (1982) 3 SCC 487, it was held that rejection oniy of a part of the piaint is not permissibSe under Order 7 Rule 1 1 C.P.C. Therefore, where in a suit the piaintiff has ciaimed severa! reiiefe. one of which is aiieged to be barred under any law, the entlre plaint shali not be Siable for rejection under Order 7 Ruis 11 of She C.P.C. in the present suit, the reiief for deciaration that the decree obtained by the respondents No.1 , 2 and 3 from the Lok Adaiat was void and not bindlna on the Dlaintiff was not barred by anv iaw. and therefore. the oiaint. as a whoie. coujd nct be rejscted under ciause (d) of Order 7 Ru!e 11 of the C.P.C. 8) Section 3 of the Act of 1988 reads as under:- 3. Prohibitlon of Sensm? transactions.—(1) No person shali enter Into anv&enamf'transaction. (2) Nothing in sub-section (1) shaii applyto- (a) the purehase of property by any person in the name of his wife or unmarried daughter and it shail be presumed, uniess the contrarv is oroved, that the said property had been purehased for the benefit of the wife of the unmamed daughter; (b) the securmes heid by a— fi) depositorv as reaistered owner under sub-section (1) of section 10 of the Depositories Act, 1996 (ii) participant as an agent of depository. Expianaaon.— The expressions "depository" and "Parocipants shall have the meanings respecfiveiy assigned to them in clauses (e) and (g) of sub-section (1) of section 2 of Depositories Act, 1996. (3) Whoever enters into any benami transaction shail be punishable with imprisonment for a term which may extend to three years or with fine or with both. ^ nsrsstanaing Criminal Procedure, 1973 (2 of 1974), an offence under this section shatl be non-coenizabie and bailable. 9) The suit property was purchased on 11.10.1974 showing the name of Hemiata Dwivedl as the purchaser. This purehase was prior to the coming into force the Act of 1988. Therefore. Section 3 (11 of the Act of 1938 coniaining prohibition on entsring in to a benami transaction wouid not appiy to the present sult since the prov'ssions oftheAct of 1988 were not retrospective in opsration. Even undar Section 3 of the Act of1988, it is perrriissibie for a person to purchase property in the name of his wlfe or unmarried daughter and such purchase is not hit by the provisions of the Act. However, there is presumption that the ourchase made in the name of the wlfe or unmarried daughters is for their benefit. The presumption under sub-section (2) of Section 3 of the Act of 1988 is a rebuttabie presumption requiring pleading and proof. The transaction dated 11.10.1974 being prior to the Act of 1988, the burden wouid iie heaviiy on the appeiianfc'plaintiff to prove that Hemiata Dwivedl was ostsnsibly shown as the purchaser of the suit property which was purchased bensmi by Babuia! Dwivedi in her name. 6 'i 0) Section 4 of the Act of 1988 reads as under: "4. Prohlb'.tion of the right to rscover property heid benaml.-— (1) No suit, ciaim or action to enforoe any right in respect of any property heid benami against the person in whose name the property is held or against any other person shail iie by or on behaif of a person claiming to be the real owner of such property. (2s No defence based on any right in respect of any propeny he!d benami, whether against the person in whose name the property is held or against any other person, shal be aiiowed in any suit, ciaim or action by or on behaif of a person ciaiming to be the real owner of such property. (3) Nothing 'm this section shaii appiy,— (a) where the psrson in whose name the property is held is a coparcener in a Hindu undlvided family and the property is held for the benefit ofthe coparceners in the family; or (b) where the person in whose name the property is heid 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 frustee or towards whom he stands in such caDacit/. Sub-section (1) of Section 4 of the Act of 1SS8 lays down that no sult, claim or action to enforce any riaht in resoect of anv DroDsrtv held benami against the person in whose name the proparty is held or against any other person shait iie byor_on behalf of a person clalmina to be the real pwner of such property (emphasf's suop/fed by me). The words "by or on behaif of a person ciaiming to be the real owner of such property" signify that a sult. cialm or action shail not lie either by a oerson who has purchased the property ostensibly in the name or another or on behaif of such person. In the present case, the appeliant/plaintifr is neiiher the reai ,.y ,^< Ks ^•i.^s!ea:c^<; \. ^y ^^A- y-<ii^l; ^^' owner nor actlng on behalf of ihe rea! owner. The words "on behaif of a person" s'ignify a person who has been authorized by the real owner to institute the suit. !t does not include an action by a legal representative on the basis of an averment of the suit property being coparcenary property of a Hindu Undivlded family held for the benefit of coDareeners in the famiiv. Sub-clause (a) of sub-sectlon (2) of Section 4 cleariy renders the orohibition contained in sub-section (1'i of Section 4 of the Act of 1988 inappiicab'e to sults where it is averred that ihe person in whose name the property Is heid is a coparcsner in a Hindu Undivided famiiy and the property Is held for the benefrt of the coparceners in the family. In the present case, ihe piaintiff/copsreener has institufed the suit on the averment that the suit property betonging to the Hindu Undivlded famiiy was heid by Hemlata Dwivedi, a coDarcener. Therefore, such a suit is not barred under Section 4 (1) ofthe Act of 1S88. 11) In view of the above discussion, it is clear that the impuaned order being contrary to !aw ts liable to be set aside. Accordingly, the appeai is atlowed. The impugned order dated 29.12.2007 passed bv the Addltlona! District Judge, Bilaspur is set aslde. The application under Order 7 Ru!e 11 ofthe C.P.C. filed by the respondents/defendants is dismissed. The triai Court Is directed to expeditiousiy decide the suit in accordance with iaw. Sd/- Dilip Raosaheb Deshmukh Judge Anjani