The Tax Publishers 2022 TaxPub(CL) 2861 (Del-HC)

BENAMI TRANSACTION (PROHIBITION) ACT, 1988

Section 4

Daughter of Karta filed an application under Order VII, Rule 11 of CPC for maintainability of partition suit, but Karta's son proved that property was purchased from funds of HUF, all averments in plaint fell within exception provided under section 4(3)(a), the plaint could not be rejected under provisions of Order VII, Rule 11 of CPC, the application was dismissed.

Prohibition of the right to recover property held benami - Application for maintainability of partition suit - Property purchased from funds of HUF - Whether plaint can be rejected under provisions of Order VII, Rule 11 of CPC

Karta received amount from redemption of HUF investments, which was utilized in purchasing a property. Karta's Will was executed and entire property as stated before was bequeathed to his daughters. Son of Karta filed a suit seeking partition and permanent injunction in respect of the property on the ground that the Will had been made under a misconception as the property was always an HUF property and the Karta could not bequeath the property in favour of his daughters.Subsequently, daughter of Karta filed an application under Order VII, Rule 11 of CPC for the maintainability of the suit. Held: The sale deed for the suit property was in the name of father of the parties, albeit in his capacity as the Karta of the HUF and for the benefit of all coparceners. The son had made the necessary averments in the plaint and filed documents along with the plaint in support of his case that the suit property was purchased from the funds of the HUF.He made the necessary averments in the plaint so as to fall within the exception provided under section 4(3)(a). Therefore, the plaint cannot be rejected under the provisions of Order VII, Rule 11 of the CPC. At the stage of Order VII, Rule 11 of the CPC, the Court could not go into the veracity of the pleas taken in the plaint or its truthfulness. The same could only be tested in a trial. No grounds had been made out for rejection of the plaint under the provisions of Order VII, Rule 11 of the CPC. Thus, the application was dismissed.

REFERRED :

FAVOUR : Application dismissed

A.Y. :



IN THE DELHI HIGH CCOURT

AMIT BANSAL, J.

Amiteshwar Singh v. Kamal Nain & Anr.

CS(OS) 1439/2015

13 October, 2022

Plaintiff by: Akshay Makhija, Senior Advocate with Saurabh Seth, Advocate

Defendants by: Deepika V. Marwaha, Senior Advocate with Worthing Kasar, Alok Pandey and Raunika Johar, Advocates for defendant No. 1. Anuj Malhotra, Advocate for defendant No. 2.

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