1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 449 OF 2010 Deorao Amrut Murkute & Ors. Vs. Chandrakalabai Shamrao Tayade Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's Orders Shri D. A. Sonwane Adv for appellant. CORAM: .R. M. SAVANT J. Dated: 8 th FEBRUARY, 2011. This appeal challenges the judgment and decree dated 28.10.2009 passed in Regular Civil Appeal No. 157 of 2007 by allowing the judgment and decree passed by the Trial Court in Regular Civil Suit No. 54 of 1994 which came to be set aside. The appellant herein is the original plaintiff who has filed a suit for possession and permanent injunction in respect of the suit property bearing Sur. No. 556/34 admeasuring 81 Ares, situated at mouza Yeoda. It was the case of the plaintiff that plaintiff Nos. 1 and 2 had purchased the suit property in the name of plaintiff no.3 i. e. Rangrao and the real owner of the suit property whereas plaintiffs 1 and 2 2 and the plaintiff no.3 was only the Benamidar. Occasion to file the suit was that plaintiff no.3 after attaining majority, in order to raise money had entered into a transaction by executing the alleged nominal sale deed dated 24.01.1994 in respect of the suit property in the name of the defendant for the sum of Rs. 4000/-. It was their case that the plaintiffs were in possession of the suit field and the sale deed executed by the plaintiff no.3 dated 24.01.1994 was void ab initio and therefore defendants be restricted from entering the possession of the property by virtue of the said sale deed. The defendant filed his Written Statement and denied the claim and contentions of the plaintiffs. It was the case of the defendant that it was the plaintiff no.3 who has purchased the suit property on 27.09.1984 by a registered sale deed for a consideration of Rs. 4000/- and therefore the plaintiff no.3 was absolute owner and was in possession of the suit field. It was her case that on 24.01.1994 by a registered sale deed she has purchased the suit property from the plaintiff no.3 for consideration of Rs. 14,000/- and that pursuant to the said sale deed she was put in possession of the suit field. She denied that the transaction between her and defendant was a loan transaction. Trial Court on the basis of the pleadings of the parties framed the relevant issues. Trial Court also framed a issue in regard to the maintainability of the suit in the light of the Benami Transaction (Prohibition) Act 1988. Trial Court relying 3 upon Section 4(3)(b) of Benami Transactions (Prohibition) Act held that the suit was maintainable as the plaintiff no.3 was in fiduciary relationship with the plaintiffs 1 and 2 and therefore the exception clause to Section 4 would apply. Trial Court issued a declaration that the plaintiff no.3 was Benamidar for plaintiffs 1 and 2 and therefore could not have entered into the transaction of the nature he had entered into with the defendant. Trial Court therefore decreed the suit. Being aggrieved by the decreeing of the suit by the trial Court the defendant filed Regular Civil Appeal No. 147 of 2007. The Appellate Court on an appreciation of the provisions of the said Act held that the suit was not maintainable as the conditions contemplated in Section 4(3) (b) of the said Act were not applicable in the instant matter. First Appellate Court taking into consideration the judgment of the Division Bench of the Kolkata High Court which is referred to in para 19 held that since the facts in the said case and the instant case were identical the plaintiff no.3 who was a minor when the property was purchased by the plaintiffs 1 and 2 could not be said to be standing in fiduciary capacity vis-a-vis his father and mother i. e. the plaintiffs 1 and 2 and therefore plaintiffs 1 and 2 could not take benefit of Section 4(3)(b) of the said Act to file the suit. First Appellate Court therefore held that the Trial Court had wrongly interpreted the provisions of Section 4(3)(b) of the said Act and had committed an error in holding that the suit of the plaintiffs was 4 maintainable. In my view the finding recorded by the First Appellate Court on consideration of Section 4(3)(b) of the said Act cannot be faulted with. The suit filed by the plaintiffs therefore for possession and permanent injunction was not maintainable. In my view no substantial question of law arises for consideration in the above Second Appeal which is accordingly dismissed. JUDGE svk 5 6 7