# Om Prakash Gupta v. Radhey Shyam Gupta

- **Citation:** (2026) 1 ILRA 891
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-01-13
- **Case number:** First Appeal No. 455 of 2023
- **Bench:** Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-gupta-v-radhey-shyam-gupta-54029
- **Pages:** 15

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1 All. Om Prakash Gupta Vs. Radhey Shyam Gupta
891
made by the appellant were the closest family members of the respondent i.e. his parents. Once that
cruel act was committed, in the context of the educational and social background of the parties, it could
never be resisted that the respondent was meted out most cruel behaviour in which he may have
reasonably felt unsafe to cohabit with the appellant. It would be completely another case where
allegation of demand of dowry is found true. However, divorce sought being a civil proceeding, everything
apart, its institution may never have offered the respondent spouse (in that proceeding) motivation to get
even with her spouse-by lodging a false criminal case. That act committed by the appellant led to loss of
reputation and standing of the respondent and his family, in his society. Having suffered that, the
respondent cannot be expected to cope with that and revive his matrimonial relations. As noted above,
both parties being well educated, the respondent holding Master in Business Administration (M.B.A.) and
the appellant holding Doctorate of Philosophy (Ph.D.), loss of reputation suffered by the respondent on
the false prosecution pressed by the appellant is seen to have caused cruelty to the extent that it may
create a reasonable apprehension in the mind of the respondent that it may not be safe for him and his
family to live in a matrimonial discord relationship with the present appellant as that occurrence would
always remain exposed to the risk of similar false prosecution etc." (emphasis supplied)

10. We see that appellant before us works as a cook in the Army, posted at Bengaluru.
Respondent possesses educational qualification of being double MA in English. In this context we
are in respectful agreement with the view taken in Smt. Tripti Singh (supra), where the coordinate Bench found that appellant therein holding Doctorate of Philosophy (Ph.D.), had made
false allegation and caused her husband and his family members (her in-laws) to be taken into
custody. Such conduct would and gives rise to apprehension that it may not be safe for the other
party to live and have matrimonial relationship with the wife.

11. For reasons aforesaid, impugned judgment is reversed. On the petition presented before the
Family Court, the marriage solemnized on 2nd July, 2015, is dissolved by decree of divorce on the
ground of cruelty. Considering there is earlier finding of fact that parties spent precious little time
together and also further finding of fact, not found to the contrary in impugned judgment that
husband-appellant was asked to live in respondent's parental house, we are not moved to exercise
discretion to direct permanent alimony.

12. The appeal is allowed and disposed of.
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(2026) 1 ILRA 891
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.01.2026

BEFORE

THE HON'BLE SANDEEP JAIN, J.

First Appeal No. 455 of 2023

Om Prakash Gupta ...Appellant
Versus
Radhey Shyam Gupta ...Respondent
892 INDIAN LAW REPORTS ALLAHABAD SERIES
Issue for Consideration
Matter pertains to whether the trial court was justified in rejecting the plaint under O. VII R. 11(d) CPC on the
ground that the suit for partition was barred u/s 4 r/w s. 2(9) of Prohibition of Benami Property Transactions
Act, 1988, when the plaint specifically averred that the disputed properties were joint Hindu family properties
acquired from the nucleus and income of the joint family business.

Headnotes
Code of Civil Procedure, 1908 - O. 7 R. 11, s. 96 - Prohibition of Benami Property Transactions
Act,1988 - s. 4 r/w ss. 2(9), 2(8), 3 Rejection of plaint - Scope of - The instant first appeal u/s 96
CPC arose from the judgment and decree dated 03.03.2023 passed by Additional Civil Judge
(Senior Division), Gorakhpur, whereby the plaintiff's suit for declaration and partition was
rejected under O. VII R. 11 CPC as being barred by s. 4 r/w s. 2(9) of Prohibition of Benami
Property Transactions Act, 1988 - The plaintiff/ appellant instituted O.S. No. 1034 of 2022
against his elder brother/respondent, asserting that both were members of a joint Hindu family
and had jointly carried on business since the late 1980s, out of whose income various immovable
and movable properties were acquired in the names of different family members, including the
defendant, their mother, and their respective spouses and children - It was specifically pleaded
that such properties were purchased from the nucleus and income of Joint Hindu Family and
were liable to be partitioned, the plaintiff claiming a half share therein along with consequential
relief of permanent injunction - The defendant, however, moved an application under O. VII R.
11 CPC contending that the suit was barred by Benami Act on the ground that the properties
stood in individual names and the plaintiff was, in effect, asserting a benami claim - Accepting
the said objection, the trial court rejected the plaint at the threshold, holding the suit to be
barred by law, which led to the filing of the appeal before the High Court. (E-11)
Held: The business of plaintiff and defendant was joint, in which their family members were also involved,
who were also having joint bank account - In view of the evidence on record, there was considerable merit in
the submission of the plaintiff/appellant that the plaint schedule properties were purchased from the nucleus
and income of the joint Hindu undivided family of the plaintiff and defendant - It is further apparent that
whether the disputed property was benami and was not covered by the exception, was again an issue to be
decided on the basis of evidence and not simply on mere averments contained in the plaint and the defendant
has to adduce evidence to prove the property to be benami, as such, prima-facie the trial court could not
have rejected the plaint at the threshold under O. 7 R. 11 CPC - It is further apparent that since, the disputed
property was alleged to be property of the joint Hindu undivided family, as such, u/s 2(9) of Act of 1988, it fell
within the exception carved out, hence it was not a benami property, but the trial court has held otherwise -
In view of this, since the disputed plaint properties were falling in the exception contained in s. 2(9) of Act of
1988, the plaintiff 's suit was also not barred u/s 4 of Act, and the trial court has certainly erred in dismissing
the plaintiff 's suit on this ground - It is apparent that the impugned order passed by trial Court is perverse,
which is legally unsustainable and is liable to be set aside - Accordingly, the appeal allowed, thus, impugned
order set aside. [Paras 27, 28]

Case Law Cited
Shaifali Gupta v.Vidya Devi Gupta and others 2025 SCC OnLine SC 1181; Vinod Infra Developers Ltd. v.
Mahaveer Lunia and others 2025 SCC OnLine SC 1208; Keshav Sood v. Kirti Pradeep Sood and others
2023 SCC OnLine SC 2459; Pushpalata v. Vijay Kumar(Dead) through LR's and others 2022 SCC OnLine
SC 1152; Pawan Kumar v. Babulal Since Deceased Through LRS & Ors. (2019) 4 SCC 367

List of Acts
Code of Civil Procedure, 1908; Prohibition of Benami Property Transactions Act,1988

List of Keywords
1 All. Om Prakash Gupta Vs. Radhey Shyam Gupta
893
First Appeal u/s 96 CPC; O. VII R. 11 CPC; Barred by law; s. 4 r/w s. 2(9) of Prohibition of
Benami Property Transactions Act, 1988; Benami property; Benami transaction; Joint Hindu
family; Hindu undivided family (HUF); Karta; Nucleus of joint family; Joint earning; Partition;
Declaration of 1/2 share; Permanent injunction; Plaint schedule property; Appellate Jurisdiction;
Benami Holder; Triable issues; Threshold rejection; Preliminary stage; Documentary evidence;
Perverse order; Legally unsustainable; Set aside; Restoration of suit; Selling; Alienation;
Transferring; Creation of third party rights; Appeal allowed with costs.

Case Arising From
APPELLATE JURISDICTION: First Appeal No. - 455 of 2023

From the Judgment and Decree dated 03.03.2023 passed by the Court of Additional Civil Judge (Senior
Division) Second, Gorakhpur in Original Suit No. 1034 of 2022.

Appearances for Parties
Advs. for the Appellant:
Hausihla Prasad Mishra

Adv. for the Respondent:
Vineet Kumar Singh

(Delivered by Hon'ble Sandeep Jain, J.)

1. The instant first appeal under Section 96 of the CPC has been preferred by the plaintiff in
O.S. no. 1034 of 2022 Omprakash Gupta versus Radheyshyam Gupta, against the impugned
judgment and decree dated 3.3.2023 passed by the Court of Additional Civil Judge(Senior
Division) Second, Gorakhpur, whereby the defendant's application 38-C under Order 7 Rule 11
CPC was allowed and consequently, the plaintiff's suit was dismissed being barred by Section 4
read with Section 2(9) of The Prohibition of Benami Property Transactions Act,1988 (hereinafter
referred to as the 'Act').

2. Factual matrix is that the plaintiff appellant filed O.S. no. 1034 of 2022 against his elder
brother/defendant Radheyshyam Gupta with the averments that their father Krishnanath died about
45 years ago and at that time plaintiff was minor and since then the plaintiff and defendant are the
members of a joint Hindu family, the defendant being its head and Karta.

3. It was further averred by the plaintiff that he and the defendant came to Gorakhpur in the
year 1987 88 where they jointly started timber and sugarcane business and they gradually started
accumulating money. The plaintiff averred that whatever he used to earn, he gave it to his elder
brother/defendant, being the Karta of the joint family. He further averred that from their joint
earning on 30.10.1995 in Indranagar, Gorakhpur five decimal land measuring 2180 ft was
purchased in the name of the defendant to which he didn't object, keeping in view the reputation
and dignity of the family and also because the defendant was his elder brother and was also the
head and the Karta of the joint Hindu family. He further averred that in the year 1993 he and the
defendant after due consultation purchased two plots of land in Transport Nagar, Gorakhpur, out of
which plot no. 56 was purchased in the name of defendant and plot no. 12 was purchased in his
name. He further averred that he has constructed a three storey house on plot no. 12, in which till
the year 2010, the families of plaintiff and defendant along with their mother resided together. He
894 INDIAN LAW REPORTS ALLAHABAD SERIES
further averred that plot no. 56 has been bounded and pillars and walls have been constructed on it
and merely the lantern remains to be cast.

4. The plaintiff further averred that he and the defendant continued to do business jointly and
in the year 2002 land was purchased by them in the name of their mother Sitabi Devi in Siddhath
Enclave, Ramgarh Taal, Gorakhpur and thereafter, from the income of joint family, a three storey
house was constructed on it, the house tax of which was being paid by their mother Sitabi Devi. He
further averred that he and the defendant are still residing jointly in the above house.

5. The plaintiff further averred that thereafter, from the joint income of the family, on the plot
purchased in Indranagar, Gorakhpur in the year 1995, on the ground floor a hall was constructed in
which the plaintiff's son is running the shop in the name and style of Jai Maa Durga Supermarket
and on its upper floor, four persons have been inducted as tenants and in the basement, half portion
has been allotted to the parking of vehicles and another half portion has been rented to Sidhi
Plywood, whose proprietor is Baijnath Gupta and on the first floor, Shriram Transport Company, a
coaching centre and security company are functioning.

6. He further averred that his son Shubham took contribution of ₹ 8 lakhs from his elder
brother Ajeet Kumar Gupta for running the Jai Maa Durga Supermarket and further, the plaintiff
and the defendant jointly took a loan of ₹ 20 lakhs from the Union Bank of India in the year 2021
for starting a business, from which, it was also proved that the plaintiff and defendant are having a
joint family. He further averred that he and the defendant from the joint income of the family
purchased plot no.C-129 in the name of defendants son Vinod Kumar Gupta as benami, in
BuddhVihar commercial scheme, Gorakhpur whereas this property belongs to joint Hindu family.

7. The plaintiff further averred that the business of plaintiff and defendant is still joint and at
present they are owners of 13 trucks, out of which 8 trucks belong to defendant and 5 trucks belong
to the plaintiff. He further averred that the plaintiff and defendant are still residing jointly and due
to differences in opinion from 1.4.2022, they have separated their kitchen, but the business is still
joint. He further averred that the trucks of the defendant are in the name of defendants wife Somari
Devi and defendant's elder son Vinod Kumar Gupta whereas, trucks of the plaintiff are jointly in
the name of plaintiff and his wife Girja Devi, but still the earning of all the trucks is kept by his
elder brother/defendant. He further averred that the defendant has established a firm in the name
and style of Nigam Traders for doing joint business in which, the income of all the trucks is
accounted for.

8. The plaintiff further averred that since quite some time the intention of the defendant has
turned malafide who was not giving full account of the income of the joint family and their sons
have also become major. He further averred that the defendant has got seven children, out of which
five daughters and a son have been married whereas, the plaintiff has got two sons and two
daughters out of which only one daughter has been married and his three children are still to be
married. He further averred that due to the tension prevailing in the family he requested the
defendant to partition his half share in the property but when the defendant refused, he was
compelled to file the instant suit.
1 All. Om Prakash Gupta Vs. Radhey Shyam Gupta
895

9. The plaintiff claimed the following reliefs against the defendant:-

(A)By decree granted in favour of the plaintiff against the defendant, in the plaint
schedule property, his 1/2 share be declared and partitioned.

(B)By decree of permanent injunction granted in favour of the plaintiff against the
defendant, the defendant be restrained from interfering in the peaceful possession of the plaint
schedule property till partition is effected and the defendant be further restrained from creating any
hindrance in the residence of the family members of the plaintiff and in his business.

10. During the pendency of the suit, the defendant moved an application 38-C under Order 7
Rule 11 CPC with the averments that the plaint schedule properties are individually in the name of
plaintiff and defendant but the plaintiff has averred the disputed properties to be benami property of
a joint Hindu family and was claiming partition on the basis of his individual share in that property,
which was barred by the provisions of the Prohibition of Benami Property Transactions Act,1988
as such, the plaintiff's suit was barred by law and was liable to be rejected.

11. The above application of the defendant was opposed by the plaintiff on the ground that the
application was not legally maintainable. It was further averred by the plaintiff that whether the
disputed property was not purchased from the joint earning of plaintiff and defendant, can only be
decided at the trial. It was further submitted that in the year 2002 one of the disputed property was
purchased in the name of their mother Sitabi Devi, who was a housewife, who had no independent
source of income, and at that time the plaintiff, defendant and their mother were living together in a
joint family, and the defendant was the Karta of the joint family. It was further submitted that plot
no.C-127 was purchased by the plaintiff by making payment in instalments from his bank account,
which also proves that the business of plaintiff and defendant was joint. It was further submitted
that the trucks in the name of plaintiffs wife were also operated from the defendant's firm, which
also proves that the business of plaintiff and defendant was joint. It was further submitted that the
disputed property does not attract the provisions of the Act of 1988 and the question raised by the
defendant involves appreciation of fact and evidence which cannot be examined at the threshold, as
such, the application was not legally maintainable.

12. The trial court has concluded that the plaintiff has averred that the disputed properties were
purchased from the joint earning of the plaintiff and defendant but in support of the above
contention, no document was produced by the plaintiff. The trial court has noted that if any
property was purchased by the Karta of the Hindu undivided family for the benefit of the members
of the family and its consideration was provided from the funds of the joint family, then it does not
attract the provisions of the Act of 1988. The trial court has concluded that the plaintiff has not
averred that the property purchased by the defendant was from the funds of the joint family. It was
further concluded that since the disputed property was purchased in the name of the defendant and
other persons as such, the suit was barred by Section 4 read with Section 2(9) of the Act of 1988,
and has accordingly allowed the defendants application 38-C and consequently, dismissed the
plaintiffs suit being barred under the above provisions of the Act of 1988, aggrieved against which,
the plaintiff has filed the instant appeal under section 96 of the CPC.
896 INDIAN LAW REPORTS ALLAHABAD SERIES

13. Learned Senior counsel for the plaintiff -appellant Sri Pramod Kumar Jain submitted that
at the stage of deciding application under Order 7 Rule 11 CPC, the court has not to examine the
written statement and the evidence submitted by the defendant, and only the plaint averments and
the documents filed by the plaintiff are to be considered. It was further submitted that from the
plaint averments it is apparent that the plaintiff and defendant are real brothers, who had a joint
business, and from the earning of the joint business, several immovable properties were purchased
by the plaintiff, defendant and their family members, including their mother Sitabi Devi, in their
individual names, whereas in fact, all the above property was purchased from the funds of the joint
Hindu family, which was prima-facie proved from the documents submitted with the plaint. It was
further submitted that at this stage, the plaint averments are to be presumed true and if any disputed
question of fact arises, then the plaint cannot be rejected at the threshold. Learned counsel further
submitted that prima-facie there was sufficient evidence on record to prove that the business of the
plaintiff and defendant was joint, who were residing jointly, and from the business of the joint
family, several immovable properties were purchased in the individual name of its members as
such, the trial court should not have rejected the plaint under Order 7 Rule 11 CPC. It was further
submitted that since the disputed property was the property of joint Hindu family, the provisions of
the Prohibition of Benami Property Transactions Act,1988 were not attracted in the facts and
circumstances of the case but the trial court has held otherwise. Learned counsel in support of his
above contention has relied upon the case law of Shaifali Gupta vs.Vidya Devi Gupta and others
2025 SCC OnLine SC 1181. With these submissions it was prayed that the appeal be allowed and
the matter be remanded to the trial court for deciding the suit on merits.

14. Per contra, learned counsel for the defendant respondent submitted that the disputed
property is in the name of defendant but the plaintiff is alleging that the defendant is a benami
holder as such, the plea of the plaintiff was barred under the provisions of the Act of 1988, hence,
the trial court has not erred in allowing the defendants application under Order 7 Rule 11 CPC and
consequently, dismissing the plaintiffs suit which does not warrant any interference from this Court
in exercise of its appellate jurisdiction. With these submissions, it was prayed that the appeal is
meritless and be rejected.

15. I have heard the learned counsel of both the parties, perused the impugned order and the
record of the lower court.

16. The Apex Court in the case of Vinod Infra Developers Ltd. versus Mahaveer Lunia and
others 2025 SCC OnLine SC 1208 has held that at the preliminary stage of deciding Order 7 Rule
11 CPC application, the court is required to confine its examination strictly to the averments made
in the plaint and not venture into the merits or veracity of the claims. If any triable issues arise from
the pleadings, the suit cannot be summarily rejected.

17. The Apex Court in the case of Keshav Sood versus Kirti Pradeep Sood and others 2023
SCC OnLine SC 2459 has held that the scope of Rule 11 of Order 7 of CPC is concerned, the law
is well settled. The court can look into only the averments made in the plaint and at the highest,
documents produced along with the plaint. The defence of defendant and documents relied upon by
him cannot be looked into while deciding such application.
1 All. Om Prakash Gupta Vs. Radhey Shyam Gupta
897

18. It is apparent from the above law laid down by the Apex Court in the case of Vinod Infra
developers Ltd. (supra) and Keshav Sood (supra) that at the time of deciding Order 7 Rule 11 CPC
application, the court has to look into only the averments made in the plaint and the documents
submitted by the plaintiff. The court has not to examine the written statement of the defendant or
the documents submitted by it. Further, the court has also not to examine the plaintiffs case on
merit to determine whether he is going to succeed or not? It is also apparent that if any triable issue
arises out of the pleadings of the plaintiff, then the plaint cannot be summarily rejected.

19. For appreciating the controversy in correct perspective, it will be appropriate to examine
the relevant provisions of The Prohibition of Benami Property Transactions Act,1988. Section
2(8), 2(9), 3, 4 of the Act reads as under:-

 "2.Definitions.-In this Act, unless the context otherwise, requires,

(8) benami property means any property which is the subject matter of a benami
transaction and also includes the proceeds from such property;

(9) benami transaction means,

(A) a transaction or an arrangement

(a) where a property is transferred to, or is held by, a person, and the consideration for
such property has been provided, or paid by, another person; and

(b) the property is held for the immediate or future benefit, direct or indirect, of the
person who has provided the consideration, except when the property is held by

(i) a Karta, or a member of a Hindu undivided family, as the case may be, and the
property is held for his benefit or benefit of other members in the family and the consideration for
such property has been provided or paid out of the known sources of the Hindu undivided family;

(ii) a person standing in a fiduciary capacity for the benefit of another person towards
whom he stands in such capacity and includes a trustee, executor, partner, director of a company,
a depository or a participant as an agent of a depository under the Depositories Act, 1996 (22 of
1996) and any other person as may be notified by the Central Government for this purpose;

(iii) any person being an individual in the name of his spouse or in the name of any child
of such individual and the consideration for such property has been provided or paid out of the
known sources of the individual;

(iv) any person in the name of his brother or sister or lineal ascendant or descendant,
where the names of brother or sister or lineal ascendant or descendant and the individual appear
as joint-owners in any document, and the consideration for such property has been provided or
paid out of the known sources of the individual; or
898 INDIAN LAW REPORTS ALLAHABAD SERIES

(B) a transaction or an arrangement in respect of a property carried out or made in a
fictitious name; or

(C) a transaction or an arrangement in respect of a property where the owner of the
property is not aware of, or, denies knowledge of, such ownership;

(D) a transaction or an arrangement in respect of a property where the person providing
the consideration is not traceable or is fictitious;

Explanation. For the removal of doubts, it is hereby declared that benami transaction
shall not include any transaction involving the allowing of possession of any property to be taken
or retained in part performance of a contract referred to in section 53A of the Transfer of Property
Act, 1882, if, under any law for the time being in force,

(i) consideration for such property has been provided by the person to whom possession
of property has been allowed but the person who has granted possession thereof continues to hold
ownership of such property;

(ii) stamp duty on such transaction or arrangement has been paid; and

(iii) the contract has been registered

3. Prohibition of benami transactions.-

(1) No person shall enter into any benami transaction.

(2)********

(3) ********

4. Prohibition of the right to recover property held benami.-

(1) No suit, claim or action to enforce any right in respect of any property held benami
against the person in whose name the 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.

(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.

20. The The Apex Court in the case of Pushpalata versus Vijay Kumar(Dead) through LR's
and others 2022 SCC OnLine SC 1152, while discussing the circumstances which can be taken as
a guide to determine the nature of the transaction, held as under:-
1 All. Om Prakash Gupta Vs. Radhey Shyam Gupta
899

"22. The court's approach in cases, where the claim is that a property or set of
properties, are benami, was outlined, after considering previous precedents, in Binapani Paul v.
Pratima Ghosh (2007) 6 SCC 100, where this court cited with approval extracts from Valliammal
v. Subramaniam (2004) 7 SCC 233:

47. Burden of proof as regards the benami nature of transaction was also on the
respondent. This aspect of the matter has been considered by this Court in Valliammal (D) By LRS.
v. Subramaniam (Supra) wherein a Division Bench of this Court held:

13. This Court in a number of judgments has held that it is well established that burden of
proving that a particular sale is benami lies on the person who alleges the transaction to be a
benami. The essence of a benami transaction is the intention of the party or parties concerned and
often, such intention is shrouded in a thick veil which cannot be easily pierced through. But such
difficulties do not relieve the person asserting the transaction to be benami of any part of the
serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises, as a
substitute for proof. Ref to Refer to Jaydayal Poddar v. Bibi Hazra [(1974) 1 SCC 3], Krishnanand
Agnihotri v. State of M.P. [(1977) 1 SCC 816 : 1977 SCC (Cri) 190], Thakur Bhim Singh v. Thakur
Kan Singh [(1980) 3 SCC 72], Pratap Singh v. Sarojini Devi [1994 Supp (1) SCC 734] and Heirs
of Vrajlal J. Ganatra v. Heirs of Parshottam S. Shah [(1996) 4 SCC 490]. It has been held in the
judgments referred to above that the question whether a particular sale is a benami or not, is
largely one of fact, and for determining the question no absolute formulas or acid test, uniformly
applicable in all situations can be laid. After saying so, this Court spelt out the following six
circumstances which can be taken as a guide to determine the nature of the transaction:

(1) the source from which the purchase money came;

(2) the nature and possession of the property, after the purchase;

(3) motive, if any, for giving the transaction a benami colour;

(4) the position of the parties and the relationship, if any, between the claimant and the
alleged benamidar;

(5) the custody of the title deeds after the sale; and

(6) the conduct of the parties concerned in dealing with the property after the
sale.(Jaydayal Poddar v. Bibi Hazra [(1974) 1 SCC 3], SCC p. 7, para 6)

14. The above indicia are not exhaustive and their efficacy varies according to the facts
of each case. Nevertheless, the source from where the purchase money came and the motive why
the property was purchased benami are by far the most important tests for determining whether the
sale standing in the name of one person, is in reality for the benefit of another. We would examine
the present transaction on the touchstone of the above two indicia.

*** *** ***
900 INDIAN LAW REPORTS ALLAHABAD SERIES

18. It is well settled that intention of the parties is the essence of the benami transaction
and the money must have been provided by the party invoking the doctrine of benami. The evidence
shows clearly that the original plaintiff did not have any justification for purchasing the property in
the name of Ramayee Ammal. The reason given by him is not at all acceptable. The source of
money is not at all traceable to the plaintiff. No person named in the plaint or anyone else was
examined as a witness. The failure of the plaintiff to examine the relevant witnesses completely
demolishes his case

23. As a matter of law, the principle that one who alleges that a property is benami and is
held, nominally, on behalf of the real owner - in cases which form the exception, under Section 4
(3) - has to displace the initial burden of proving that fact. Such proof can be through evidence, or
cumulatively through circumstances. This fact was brought home, by this court, in Marcel Martins
v. M. Printer (2012) 5 SCC 342. In that case, the issue was whether the transfer of rights in favour
of one of the siblings, in the absence of a will, by the person having interest (as a tenant in the
property), after her death, operated to exclude the other heirs. The court held that the transfer was
made to fulfil a municipality's requirement, and the property was held by the one in whose name it
was mutated, in a fiduciary capacity, under Section 4(3)(a) of the Act, on behalf of the siblings:

22. It is manifest that while the expression fiduciary capacity may not be capable of a
precise definition, it implies a relationship that is analogous to the relationship between a trustee
and the beneficiaries of the trust. The expression is in fact wider in its import for it extends to all
such situations as place the parties in positions that are founded on confidence and trust on the one
part and good faith on the other.

23. In determining whether a relationship is based on trust or confidence, relevant to
determining whether they stand in a fiduciary capacity, the Court shall have to take into
consideration the factual context in which the question arises for it is only in the factual backdrop
that the existence or otherwise of a fiduciary relationship can be deduced in a given case. Having
said that, let us turn to the facts of the present case once more to determine whether the appellant
stood in a fiduciary capacity vis- -vis the plaintiffs-respondents.

24. The first and foremost of the circumstance relevant to the question at hand is the fact
that the property in question was tenanted by Smt. Stella Martins-mother of the parties before us. It
is common ground that at the time of her demise she had not left behind any Will nor is there any
other material to suggest that she intended that the tenancy right held by her in the suit property
should be transferred to the appellant to the exclusion of her husband, C.F. Martins or her
daughters, respondents in this appeal, or both. In the ordinary course, upon the demise of the
tenant, the tenancy rights should have as a matter of course devolved upon her legal heirs that
would include the husband of the deceased and her children (parties to this appeal). Even so, the
reason why the property was transferred in the name of the appellant was the fact that the
Corporation desired such transfer to be made in the name of one individual rather than several
individuals who may have succeeded to the tenancy rights. A specific averment to that effect was
made by plaintiffs-respondents in para 7 of the plaint which was not disputed by the appellant in
the written statement filed by him. It is, therefore, reasonable to assume that transfer of rights in
favour of the appellant was not because the others had abandoned their rights but because the
1 All. Om Prakash Gupta Vs. Radhey Shyam Gupta
901
Corporation required the transfer to be in favour of individual presumably to avoid procedural
complications in enforcing rights and duties qua in property at a later stage. It is on that
touchstone equally reasonable to assume that the other legal representatives of the deceased-tenant
neither gave up their tenancy rights in the property nor did they give up the benefits that would
flow to them as legal heirs of the deceased tenant consequent upon the decision of the Corporation
to sell the property to the occupants. That conclusion gets strengthened by the fact that the parties
had made contributions towards the sale consideration paid for the acquisition of the suit property
which they would not have done if the intention was to concede the property in favour of the
appellant. Superadded to the above is the fact that the parties were closely related to each other
which too lends considerable support to the case of the plaintiffs that the defendant-appellant held
the tenancy rights and the ostensible title to the suit property in a fiduciary capacity vis- -vis his
siblings who had by reason of their contribution and the contribution made by their father
continued to evince interest in the property and its ownership. Reposing confidence and faith in the
appellant was in the facts and circumstances of the case not unusual or unnatural especially when
possession over the suit property continued to be enjoyed by the plaintiffs who would in law and on
a parity of reasoning be deemed to be holding the same for the benefit of the appellant as much as
the appellant was holding the title to the property for the benefit of the plaintiffs.

25. The cumulative effect of the above circumstances when seen in the light of the
substantial amount paid by late Shri C.F. Martins, the father of the parties, thus puts the appellant
in a fiduciary capacity vis- -vis the said four persons. Such being the case the transaction is
completely saved from the mischief of Section 4 of the Act by reason of the same falling under Subsection 3(b) of Section 4. The suit filed by the respondents was not, therefore, barred by the Act as
contended by the learned counsel for the appellant.

****** **** ****

27. In the light of these factors, and the law declared by this court which has elaborated
the circumstances under which a claim against a benami owner can be said to be proved, under
Section 4(3)(a) of the Act, the conclusions drawn by the trial court and first appellate court, are
plainly erroneous, given the evidence on record. The High Court, in the opinion of this court, fell
into error in not noticing the correct position in law.

***** **** ****

30. In the opinion of this court, the High Court fell into error, in ignoring that the
circumstances of this case, where the first plaintiff had proved that the properties had been
purchased, with his funds, and the sons were minors, with no source of income. The second
defendant's position-throughout all the proceedings, was that the properties were that of the first
plaintiff; in other words, he admitted to the suit averments. The plaintiff also proved that he had
possession of the property, by adducing positive evidence of tenants, who paid rent to him. In these
circumstances, the elements necessary to establish benami ownership within the meaning of Section
4 (3) (a) of the Act, in terms of the judgments in Binapani Paul and Valliammal (supra) have been
satisfied by the first plaintiff.
902 INDIAN LAW REPORTS ALLAHABAD SERIES

21. The Apex Court in the case of Shaifali Gupta (supra) held as under:-

23. Section 4 of the Benami Act bars the suit, claim or action in respect of a property held
benami by person at the behest of the person claiming to be its true owner. It reads as under:

4(1). No suit, claim or action to enforce any right in respect of any property held benami
against the person in whose name the 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.

24. The above provision bars an action in respect of property held benami . However,
whether the property in respect of which the suit, claim or action has been brought about is a
benami property or not, is the issue of prime consideration.

25. The plaint allegations all through describe the suit properties as the Joint Hindu
Family properties and that they have been purchased either from the nucleus of the Joint Hindu
Family property or the income derived from the joint family business. The properties are not
described as benami in the name of any member of the family. Therefore, from the plaint reading,
the suit properties cannot ex-facie be held to be benami properties in respect whereof the suit may
not be maintainable in view of Section 4 of the Benami Act.

26. The Benami Act further defines benami property and benami transaction under
Sections 2(8) and 2(9) of the said Act. Benami property is the property which is the subject matter
of benami transaction whereas benami transaction is a property held by a person in respect
whereof consideration has been provided by some other person but would not include certain
categories of properties such as where a person is holding a property in a fiduciary capacity for
the benefit of another person.

27. In such circumstances, whether a property is a benami, has to be considered not in
the light of Section 4 of the Benami Act alone but also in connection with Sections 2 (8) and 2 (9) of
the said Act i.e. whether the property if benami falls in the exception. It is only where the property
is benami and does not fall within the exception contained in Sub-Section (9) of Section 2 that a
suit may be said to be barred. However, the issue whether the property is benami and is not
covered by the exception, is again an issue to be decided on the basis of evidence and not simply on
mere averments contained in the plaint. The defendants have to adduce evidence to prove the
property to be benami.

28. In Pawan Kumar v. Babu Lal (2019) 4 SCC 367, a similar issue arose before this
Court in a matter concerning rejection of plaint under Order 7 Rule 11 (d) CPC. This Court held
that for rejecting a plaint, the test is whether from the statement made in the plaint it appears
without doubt or dispute that the suit is barred by any statutory provision.