In a second appeal concerning a suit for permanent injunction regarding shops purchased in the name of a deceased minor son, the court held the suit not maintainable under the Benami Act as ownership did not vest in the plaintiff.
The second appeal was dismissed as it was found to be devoid of merit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 53
Case :- SECOND APPEAL No. - 1253 of 2017
Appellant :- Mohd. Nafees And 4 Others Respondent :- Shri Taj Alam And 2 Others Counsel for Appellant :- Shiv Bahadur Yadav
Hon'ble Vivek Agarwal,J.
Heard Sri S.B. Yadav, counsel for the appellants.
This second appeal has been filed by the plaintiff-appellant being aggrieved by judgment and order dated 04.11.2011 passed by the learned Additional Civil Judge (Sr. Division), Court no.8, Jhansi in original suit no.426 of 2008 whereby, the suit filed by the plaintiff seeking permanent injunction and prohibitory injunction has been dismissed. First appeal filed by the plaintiff-appellant against the said judgment has been dismissed vide judgment and order dated 05.09.2017 passed by the learned Additional District Judge/Special Judge (D.A.C.), Jhansi in Civil Appeal No.134 of 2011.
Learned counsel for the appellant submits that plaintiff had filed a suit in regard to shop nos.14 and 15 situated at Banke Nadipar, Station Road, Mauranipur, District-Jhansi claiming that he had purchased such shops for running his business of spare parts. These shops were purchased on 17.02.1979 by the plaintiff in the name of his minor son Mohd. Naseem by paying a consideration of Rs.2,500/- to its previous owner namely; Chintaman Devki, Bihari and Sibu Pisran lete and had obtained possession of the shop on that date. It is submitted that since, the shop was purchased in the name of Mohd. Naseem but as he was minor and was not in a position to run any business, therefore, from the beginning, his minor son had no direct relationship with the shop and it is the plaintiff, who is running the business of spare parts.
Thereafter, it is claimed that since, Mohd. Naseem son of the plaintiff died on 10.03.2008 and property was purchased in the 'Benami', name of his son, therefore, he had approached Nagar Palika, Mauranipur, District-Jhansi to get his name mutated in place of his son, when objection was raised by defendant nos.1 and 2. namely, son and wife of Late Mohd. Naseem and on such objection, his name has not been mutated and, therefore, suit was filed claiming relief of mandatory and prohibitory injunction from interfering in possession and ownership of the shops in the hands of the plaintiff which has been dismissed.
Both the courts below on the basis of the evidence which has come on record has held that since, the property in question was purchased in the name of Mohd. Naseem son of the plaintiff, therefore, plaintiff is not entitled to get his name mutated in place of his son on his death.
In view of such findings, the plea of property being 'Benami' and the deceased having no source of income, when such property was purchased and on the basis of such pleadings, plaintiff claiming that the ownership will actually vest in the plaintiff is not found to be proved and even otherwise, as per the provisions of Benami Property Transaction Act, 1988, specifically as per the provisions contained in Section 4 of the Act of 1988, suit was not maintainable and, therefore, the courts below have not committed any irregularity or illegality in dismissing the suit.
In view of such facts, this second appeal is devoid of merit and is dismissed.
Order Date :- 3.3.2020 Ashutosh
3 issues framed by the court
Whether a plaintiff purchasing property in the name of a deceased minor son is entitled to have their name mutated after the son's death.
Whether the plea of Benami property is maintainable under the Benami Property (Prohibition) Act, 1988.
Whether the courts below committed any irregularity in dismissing the suit for injunction.
1 provisions across 1 enactments
Mohd. Nafees And 4 Others
Shri Taj Alam And 2 Others
Vivek Agarwal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
