(Prayer: This CRP is filed under Section 115 of CPC, praying to set aside the impugned order dated 26.09.2024 passed by the Additional Senior Civil Judge and Judicial Magistrate First Class, Mudhol in Os No.348/2022 rejecting I.A.No.II filed by the petitioners under Order 7 Rule 11(A),(B), (C) and (D) of CPC seeking to reject the plaint as per Annexure-A and allow the IA No.II filed under Order 7 Rule 11(A)(B)(C) and (D) CPC in Os No.348/2022, in the ends of justice and equity.)

Oral Order

1. Challenging order dated 26.09.2024 passed by Additional Senior Civil Judge and JMFC, Mudhol For short, 'Trial Court', on IA no.II in OS no.348/2022, this petition is filed.

2. Sri Arun L. Neelopant, learned counsel for petitioners submitted that petitioners were defendants no.1 and 2 in OS no.348/2022 filed by respondent herein (plaintiff) for declaration that gift deed dated 06.07.2022 executed by defendant no.1 in favour of defendant no.2 as null and void; for mandatory injunction directing defendant no.1 to execute registered reconveyance sale deed and permanent injunction restraining defendants from interfering with plaintiff's peaceful possession over suit property etc.

3. It was submitted, in plaint, plaintiff stated that defendants no.1 and 2 were his mother and sister. And that entire sale consideration for purchase of suit property under registered sale deed dated 25.03.2022 was paid by plaintiff. In view of same, defendant no.1 had subsequently, reverted land bearing Sy.no.266 measuring 7 Acres 15 guntas to plaintiff under registered gift deed. However, defendant no.1 illegally transferred other land bearing Sy.no.265 measuring 5 Acres 12 guntas, in favour of defendant no.2, as if she was absolute owner thereof.

4. On appearance, defendant filed IA no.II under Order VII Rule 11 (a) to (d) of Code of Civil Procedure, 1908 ('CPC', for short) for rejection of plaint contending that plaint did not disclose cause of action and that sale deed dated 25.03.2022 showed consideration amount of Rs.32,50,000/-. It was submitted, even on a complete and meaningful reading of entire plaint, it would emerge that plaintiff's claim in respect of suit property was about their purchase by plaintiff in name of defendant no.1, which would be hit by Sections 4 and 9 of Benami Transactions (Prohibition) Act, 1988 ('BT Act', for short). It was contended, plaint did not disclose basis for plaintiff's claim and as defendant no.1 had received land acquisition compensation amount for submergence of her Stridhana properties, she had money for purchase of suit property. Further, plaintiff claimed relationship between plaintiff and defendant no.1 was fiduciary in nature even when as on date of sale deeds, i.e. 25.03.2022, when he would have been 30 years of age. Therefore, claim of defendant being in fiduciary capacity to plaintiff was without basis. Apart from above, even plaintiff's claim that he had paid Rs.1,67,82,500/- towards purchase of suit property, without particulars about source of such huge amount.

5. Though above contentions were duly urged, under impugned order, trial Court rejected IA no.II by overlooking above contentions. In support of his submission he relied on decision of Hon'ble Supreme Court in case of Sri Nimbanna v. Shivananda Kinnal and Anr. SLP (C) No.27426 of 2018, Disposed of on 01.02.2021, for proposition that when it was asserted in plaint that a property was purchased by a person from his funds in name of another, bar under Section 4 of BT Act, would apply and contention that such other person was holding it in fiduciary capacity would not be available. Under above circumstances, rejection of application on cursory reasoning that whether transaction had taken place in fiduciary capacity and exempt from applicability of provisions of BT Act would require trial, amounted to material irregularity calling for interference by this Court.

6. On other hand, Sri SB Hebballi, learned counsel for respondent (plaintiff) opposed petition. At outset, it was submitted, suit claim was based on plaintiff's assertion that defendant no.1 was plaintiff's mother and defendant no.2 his sister and that he was very affectionate towards them. He had also stated that on 23.06.2021, Smt.Sujata w/o Shivanagouda Patil, Shivanagouda Krushnagouda Patil, Sachchidanand Shivanagouda Patil, Smt.Rajeshwari Shivanagouda Patil had executed a registered agreement of sale in favour of plaintiff and defendant no.1 in respect of suit property. He had also stated that defendant no.1 did not have any source of income and her name was added out of love, affection and respect. Plaintiff had also provided particulars about manner and mode of payment of consideration for transaction including borrowing loan from ICICI Bank. Plaintiff had also stated that defendant no.1 had agreed that her name was added for dummy sake and entire sale consideration was paid by plaintiff. Therefore, he allowed vendees to execute sale deeds exclusively in name of defendant no.1. He had also stated that as per agreement on 10.05.2022, defendant no.1 reverted back land bearing RS no.266 by executing registered gift deed but, had illegally gifted land bearing RS no.265 in favour of defendant no.2.

7. It was submitted, plaintiff had clearly stated cause of action arose on 25.03.2022 when sale deeds were executed in favour of defendant no.1 only and subsequently when she illegally transferred one of properties in favour of defendant no.2 and thereafter, when defendant no.2 began asserting her title over said property.

8. Thus, pleading in plaint would indicate that plaintiff's claim would fall within exceptions to bar under BT Act. It was submitted, even while dismissing IA no.II, trial Court had observed that matter required trial and contentions of defendants were not foreclosed. In view of above, impugned order did not suffer from any legal infirmity calling for interference and sought dismissal of petition.

9. In support of his submission he relied upon decisions of Hon'ble Supreme Court in case of Pawan Kumar v. Babulal since deceased through LRs and Ors. (2019) 4 SCC 367, for proposition that whether suit was barred by provisions of BT Act or whether saved by exception under Section 4 (3) of BT Act would require trial and could not be decided while considering application under Order VII Rule 11 of CPC.

10. Reliance was also placed on Smt.Shaifali Gupta v. Smt.Vidya Devi Gupta and Ors. 2025 SCC OnLine SC 1181, for proposition that objections raised by defendants about maintainability of suit in view of bar under BT Act would be mixed question of fact and law and are to be considered only on basis pleadings and evidence of parties and not at threshold on basis of plaint allegations alone. On above grounds, sought for dismissal of revision petition.

11. Heard learned counsel for parties and perused impugned order.

12. This revision petition is by defendants no.1 and 2 challenging rejection of their application filed under Order VII Rule 11(a) to (d) of CPC.

13. From above, it is seen that challenge against impugned order is based mainly on suit being barred under Section 4 of BT Act.

14. There can be no quarrel about law that while considering an application under Order VII Rule 11 of CPC, averments in plaint alone would be material and defence set-up would be irrelevant. Though from decisions in Pawan Kumar and Smt.Shaifali Gupta's cases (supra), it would appear that normally plea of suit being barred by provisions of BT Act would be mixed question of law and fact and would not be appropriate to be decided on a plaint averments alone, in Nimbanna's case (supra), it is held, where assertions in plaint are unequivocal and attract bar under Section 4 of BT Act, trial Court would be justified in considering application under Order VII Rule 11 of CPC and nipping in bud frivolous suits.

15. There is no dispute that as per definition of 'benami transaction' under Section 2 (a) of BTA means and includes transactions wherein a property is transferred to or is held by a person and consideration for such property is paid by another person.

16. On a complete and meaningful reading of entire plaint averments reveals, it is specific and unequivocal case of plaintiff that suit property along with another was purchased under registered sale deed dated 25.03.2022 exclusively in name of defendant no.1 even though entire consideration was paid by plaintiff along, as defendant no.1 was mother of plaintiff and he was very affectionate towards her and also out of respect, with agreement that she would revert back properties to him. It is also stated that prior to sale deed, vendors had executed an agreement of sale wherein said properties were agreed to be sold in joint names of plaintiff and defendant no.1.

17. Thus, there is clear assertion about purchase of suit property in name of defendant no.1 on consideration paid by plaintiff. It is also seen prayers (A) and (B) sought in suit are for declaration about gift deed executed by defendant no.1 in favour of defendant no.2 in respect of suit property as null and void and for mandatory injunction directing defendant no.1 to execute registered sale deed by way of re-conveyance in favour of plaintiff.

18. Though a claim is made about sale transaction being in fiduciary capacity, as noted in Nimbanna's case (supra), there is no assertion by plaintiff that consideration for transactions were made out of joint family funds. On other hand, it is specifically asserted that entire consideration was paid by plaintiff alone. There is also no assertion that property was held by defendant no.1 for benefit of Hindu Undivided Family. It is rather asserted that defendant no.1 held it for benefit of plaintiff alone.

19. In view of above, unequivocal facts, there would be no need to allow suit clearly attracting bar under provisions of BT Act to proceed to trial. Trial Court was not justified in rejecting application on ground, whether transaction was in fiduciary capacity required evidence. Therefore, it is held rejection of application by trial Court suffers from material irregularity.

20. Consequently, following:

ORDER

          i) Revision Petition is allowed. Impugned order dated 26.09.2024 passed by Additional Senior Civil Judge and JMFC, Mudhol, on IA no.II in OS no.348/2022 is set-aside.

          ii) IA no.II is allowed, consequently, plaint in OS no.348/2022 stands rejected.

             iii) Pending applications, if any, stands disposed of as unnecessary.