: 1 : sa.699.2008 vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.699 OF 2008 Sushila Shrikant Jadhav – Darwan & Ors. .. Appellants V/s. Pandurang Ramchandra Jadhav since deceased through Rukminibai P. Jadhav & Ors. .. Respondents Mr.Umesh Mankapure for the Appellant Mr.G.N. Salunke for the Respondent Nos.3 to 7 CORAM: SMT.NISHITA MHATRE, J. DATED: DECEMBER 13, 2011 P.C.: 1. The Second Appeal has been preferred against the judgment and order of the Additional District Judge Kolhapur in Regular Civil Appeal No.194 of 2000. The trial court in RCS No.1222 of 1984 had dismissed the suit filed by the plaintiff for a declaration of his ownership and for a perpetual injunction against defendant Nos.1 to 5. Defendant Nos.1 to 5 are the widow and children of Shrikant, who was the son of the plaintiff. The plaintiff claimed that he had purchased the suit property in the name of Shrikant when Shrikant was 12 years old for the benefit of the joint family. According to him, he purchased the property in Shrikant's name as he was not permitted to purchase properties in : 2 : sa.699.2008 his own name, being in government service. The trial Court has dismissed the suit on the ground that this was a benami transaction and would be hit by section 4 of the Benami Transactions (Prohibition) Act, 1988. 2. The appeal Court has considered the contentions of the parties and has declared that the plaintiff was entitled to a 1/8th share in the suit property. Defendants 1 to 4 would also be entitled to a 1/8th share altogether while defendant Nos.5 to 10 would be entitled to 1/8th share each. 3. Mr.Mankapure, appearing for the appellant, has argued that in view of the provisions of the Benami Transactions Act, the transaction to purchase property in the name of the minor, Shrikant could not have been accepted by the Court. He points out that the suit was initially filed by the plaintiff pleading that the suit property was his self acquired property which was owned by him exclusively. He further submits that although the plaint was amended later by the plaintiff in order to plead that the suit property was acquired for the joint family in the name of Shrikant, the plaintiff had not elected either of the two inconsistent pleas taken in the plaint. The evidence on record indicates that the : 3 : sa.699.2008 plaintiff had deposed that the suit property was acquired for and on behalf of the joint family and not for himself alone and, therefore, in my opinion, this submission of Mr.Mankapure that the plaintiff had not elected one or the other inconsistent pleas is untenable. 4. The second submission of Mr.Mankapure that the provisions of the Benami Transactions Act were applicable is also not sustainable as the Act itself permits transactions in the name of any person who is a part of a Hindu Undivided Family under section 4(3)(a). In my view, the appellate Court has not committed any error by granting a 1/8th share of the suit property to the plaintiff. 5. Appeal dismissed. 6. In view of the dismissal of the appeal, Civil Application No.1832 of 2008 does not survive and the same is dismissed accordingly. (SMT.NISHITA MHATRE, J.)