Dismissed

Pinna Ramulu v. Godugu Mallesham , Pinna Mallesham and another

Telangana HC27 Feb 2023CRP/2503/2019

Case brief

AI extract

What is this about?

High Court dismissed civil revision petition challenging order upholding dismissal of plaint for declaration of title not barred under Benami Act. Court held suit maintainable as property purchased by plaintiff and mutated in server name with release deed executed.

What did the court decide?

Civil Revision Petition No. 2503 of 2019 dismissed; order dated 19.07.2019 in I.A. No. 305 of 2019 affirmed.

Pinna Ramulu Vs Godugu Mallesham , Pinna Mallesham and… — Property and Title | Telangana HC (2023)

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[³²⁶⁰ ]

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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TVIONDA ,THE TWENTY SEVENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY

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CIVIL REVISION NO: 2503 OF 2019

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Petition under Article 227 of the Constitution of lndia, the order dated 1907-2019 passed in l.A.No. 305 of 2019 in O.S.No. 535 of 2019 on the file of the V Senior Civil Judge, City Civil Court, at Hyderabad

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Between:

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Pinna Ramulu, S/o. Late. P. Ramalingam, Aged. 54 years, Occupation. Advocate, R/o. H.No.9-4-4, Paripally Street, Siddipet Town, Opp. Court Complex, Siddipet District (Old Medak Dist)-502 103

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...PETITIONERYDEFENDANT NO. 1

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AND

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Godugu Mallesham @^{Pill, MalleshamS/o. Late.Ramalingam, Aged.60} years, ace. Retired, Rlo.H.No.1 -3-S4, Paripally Street, Siddipet. Medak District.

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2.^pin na ven kam ma @ yelkatqm ma, wo Late. R;:::::T;J:il::l' 9.rpgp"liqn.^{Housewife, R/o. H. N o.9-4-4, paripa[y Stre6t,S idd-'ipetTown,} Siddipet District.

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...RESPONDE NT/DEFENDANT 2

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lA NO: 1 OF 2019

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings, in OS. No. 53512019 on the file V Senior Civil Judge, at City Civil Court at Hyderabad pending disposal of CRP

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Counsel for the Petitioner:SRl. T. SHARATH

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Counselfor the Respondents: SRl. Y. V. S. S. SIVA SARMA

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The Gourt made the following: ORDER

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: I I It I I I

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HONOURABLE SRI JUSTICE A.SANTHOSH REDDY CIVIL RE PE ONNo.2503 of 2019

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ORDER

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This revision is directed to set aside the order dated 19.07.2019 in I.A.No.305 of 2019 in o.S.No.535 of 2or9 on the file of the V Senior civilJudge, city civil court, Hyderabad. 2. Heard learned counsel for the petitioner and the leamed counsel fbr respondent No.l. perused the record. 3. Respondent No.l-plaitiff filed o.S.No.535 of z0l9 for. declaration of the title, canceilation of gift deed vide doc.No.91 ll20l9, dated 22.02.2019 executed by respondent No.2 in favour of respondent No.l in respect of the suit schedule property and also for perpetual Injunction restraining respondents from interfering with the suit schedule property i.e. residential unit No.303, III Floor in Anantha Nilayam in the premises bearing Municipal H.No.l-B-z2 to 26, carona Lane, chikkadapally,' Hyderabad. while so, the petitioner filed I.A.No.305 of 2019 under order vII Rule 1l (d) read with Section l5l of the code of

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.civil Procedure (for short " c.P.c.")^{to reject the plaint on the} ground that the^{sameis barred by law'}

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In the affidavit^{filed in support of the application, the} petitioner stated^{that he purchasedthe suit schedulepropertyin the} name of his^{mother,who is respondent No.2herein. Ever since the} date of^{purchase,he has been in possessionand enjoymentof the} same and^{respondentNo.2 executed a releasedeed on 24'07 '2013} relinquishing her^{rightover the suit schedule property in his favour'} But petitioner^{has fraudulentlyobtaineda registered gift settlement} deed vide doc.No.9l^{ll2}lg, dated 22.02.2019from respondent} No.2. It is also^{statedthat the plaint has to be rejectedas barred} under the "The^{BenamiTransactions(Prohibition)Act, 1988} (for short "the Act") as^{no suit claim or actionto enforceany right} .in^{respectof any property held Benamiagainstthe person in whose} . name the properly^{is held or against any other person shall lie by or} on behalf of the^{personclaiming to be the real owner of such} properly.

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Respondent No.l-plaitiff^{resisted the claim by way of filing} counter-affidavit. It^{is stated that thoughhe has purchasedthe suit}

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scheduie propefiy in the name of respondent No.2, he has been in possession and enjoyment of the same ever since the date of purchase. Therefore, the bar contained under Section 4 of the Act does not apply to the facts of the present case. It is stated that the petitioner has liaudulently obtained a registered gift settlement deed dated 22.02.2019 from respondent No.2, who in fact, has no right or title or interest over the suit schedule property.

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On a consideration of the material on record, the trial Court dismissed the said application vide order dated 19.07.2019. Challenging the same, the present revision is filed.

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Learned counsel for the petitioner submits that the trial Court committed error in dismissing the application. He further submits that the averments of the plaint clearly alaact the provisions of Section 4 of the Act. As such, the suit filed by the respondent No.1 is not maintainable and barred under Section 4 of the Act. He has

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placed reliance on the decision of M.Krishna Rao v

M.L.Narasikha Raot.

'zoos 1t1ALD^85s(DB)

Per contra, learned counsel for respondent No.l, while supporling the impugned order, submits that there is no infirmity in .the order passed by the trial Court. As such, the revision is liable to be dismissed.

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Thus, on hearing the submissions of both the counsel and on perusing the material on record, the question that arises for consideration is, whether the impugned order is sustainable in law?

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This court has meticulously perused the entire averments in .the^{plaint. In the plaint, it is stated that respondentNo.l is a retired} Government employee and respondent No.2 is his natural mother. The petitioner is brother of respondent No.l.

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Respondent No.r purchased the suit schedule property by paying entire sale consideration and got. executed registered sare deed in favour of his mother, who is respondent No.2 herein and her name is mutated in revenue records. subsequently, his mother executed release deed dated 24.07.201.3 in favour of respondent aNo.l.^{However, petitioner No.l visited the} house of respondent No.l in order to grab the property got executed registered gift deed dated 22.02-2019. Hence, respondent No.l filed the present suit.

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At this juncture, it would be appropriate to look into

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Section 4 of the Act, which reads as under:

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Prohibition of the right to recover property held benami-

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(f ), N9,,suit, claim or action to enforce any right in. respect gf any. property held benhmi against the perSon-in whose name ttre property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.

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. :: :J"'

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(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.

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(3) Nothing in this section shall apply,--

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(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or

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(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.

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Keeping in view, the above said provision, it is to be seen

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whether the suit claim of respondent No.l falls within the purview

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of Section 4 of the Act. As per the entire dverments of the plaint, it is manifest that respondent No.l has purchased the suit schedule property in the name of his mother and subsequently, she executed, registered rerease deed in favour of the respondent No.r_praintiff ?-''-'

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on 24.07.2013 severing her^{rights over the suit schedule propemy} and declared him as the beneficiary^{and the rightfulowner,as all} the charges, taxes were bome by^{him and paid entiresale} consideration in respect of the same.^{In view of the said pleadings,} 'it can be said that the contention of leamed counsel for the petitioner that the suit claim is barred under Section 4 of the Act^is not tenable.

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In view of the foregoing narration of both factual and^legal premise, I arn of the view that the suit claim is not barred under Section 4 of the Act. Therefore, the plaint cannot be rejected^under Order VII Rule 1l (d) read with Section 151 of C.P.C.^The impugned order does not suffer from any infirmity warranting interference by this Court.

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