# Rajeev Kumar Maheshwari v. Smt. Kalpana Maheshwari

- **Citation:** (2025) 9 ILRA 238
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-25
- **Case number:** First Appeal No. 152 of 2025
- **Bench:** Arindam Sinha, Avnish Saxena
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajeev-kumar-maheshwari-v-smt-kalpana-maheshwari-53893
- **Pages:** 3

## Headnote

Mayank Kumar Agrawal, Saroj Giri

Issue for consideration
Benami Transaction

Headnotes
Benami transaction-Husband in the marriage
is appellant-wife is respondent-Subject matter of
the suit is property-property purchased by
husband in name of his wife-seeks declaration
that the property is his-impugned judgement
was made ex parte against respondent-the
vendor had not been examined.-Appellant
asserting that the transactions were Benamifinding of admission by the vendor (not
examined) to hold against appellant, who was
urging to the contrary and having, had
produced the documents from his Custody-was
erroneous appreciation of the evidence before
the Court-clearly one that comes within section
7 (1) (c) in the Act of 1988-remanded for trial
afresh. Appeal allowed. (E-9)
9 All. Rajeev Kumar Maheshwari Vs. Smt. Kalpana Maheshwari
239
Case Law Cited
Nil

List of Acts

## Text

238 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) A declaratory decree is granted
in favour of the plaintiff against the
defendants, that the sale deeds executed by
Smt. Savita Chhabra and Rishav Chhabra in
favour of defendant no.1 Radhey Lal Jeswani
executed on 15.5.2006, which was registered
on 20.7.2006 in register no.1, at page no.
169/190, item no. 1609/3868; sale deed
executed in favour of defendant no. 2 Sanjay
Agarwal which is entered in register no.1,
page no.191/212, item no. 1609/3969; sale
deed executed in favour of defendant no.3
Smt. Hema Agarwal which is entered in the
register no.1, at page no. 75/94, item no.
1609/3863 & sale deed executed in favour of
defendant no.4 Sunil Kumar and defendant
no.5 Mahendra Kumar which is entered in
the register no.1, at page no. 49/74, item no.
1609/3862, all the above sale deeds which are
relating to disputed house no. 329, new
no.1358, Jhokan Bagh, Jhansi are declared
null and void ab-initio, not binding on the
plaintiff. An information to this effect be also
sent to the concerned sub-registrar office.

(ii) A decree of permanent
injunction is granted in favour of the
plaintiff against the defendants, whereby,
the defendants are forever restrained from
interfering in the peaceful possession of the
plaintiff and interfering in his rights as
landlord, in house no.329, new no.1358,
Jhokan Bagh, Jhansi, of which the plaintiff
is the owner in possession, on the basis of
above null and void ab-initio sale deeds.

128. Both the parties shall bear their
respective costs of the appeals. Office is
directed to prepare the decree accordingly.

129. Interim order, if any, stands
vacated in both the appeals.

130. All interim applications, if
pending, stands disposed of.

131. Original trial court record, if
received, be sent back, forthwith.

132. This Court appreciates the efforts
of Research Associate Mr. Rohit Mishra, in
researching the relevant case laws on the
controversy involved in this appeal.
----------
(2025) 9 ILRA 238
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.09.2025

BEFORE

THE HON'BLE ARINDAM SINHA, J.
THE HON'BLE AVNISH SAXENA, J.

First Appeal No. 152 of 2025

Rajeev Kumar Maheshwari ...Appellant
Versus
Smt. Kalpana Maheshwari ...Respondent

Counsel for the Appellant:
Ashutosh Pratap Singh, Manoj Kumar Singh

Counsel for the Respondent:
Mayank Kumar Agrawal, Saroj Giri

Issue for consideration
Benami Transaction

Headnotes
Benami transaction-Husband in the marriage
is appellant-wife is respondent-Subject matter of
the suit is property-property purchased by
husband in name of his wife-seeks declaration
that the property is his-impugned judgement
was made ex parte against respondent-the
vendor had not been examined.-Appellant
asserting that the transactions were Benamifinding of admission by the vendor (not
examined) to hold against appellant, who was
urging to the contrary and having, had
produced the documents from his Custody-was
erroneous appreciation of the evidence before
the Court-clearly one that comes within section
7 (1) (c) in the Act of 1988-remanded for trial
afresh. Appeal allowed. (E-9)
9 All. Rajeev Kumar Maheshwari Vs. Smt. Kalpana Maheshwari
239
Case Law Cited
Nil

List of Acts
1. Family Courts Act, 1988
2. Prohibition of Benami Property Transactions
Act, 1988

List of Keywords
Transactions
were
Benami;
erroneous
appreciation of the evidence; section 7 (1) (c) in
the Act of 1988

Appearances of parties
Counsel for Appellant(s) : Ashutosh Pratap
Singh, Manoj Kumar Singh
Counsel for Respondent(s) : Mayank Kumar
Agrawal, Saroj Giri

(Delivered by Hon'ble Arindam Sinha, J.)

1. Husband in the marriage is
appellant. He filed suit in respect of
property purchased by him in name of his
wife. The spouses have fallen out. The suit
is for declaration that the purchase is not hit
by subsequent amendment w.e.f., 1st
November, 2016 to Prohibition of Benami
Property Transactions Act, 1988.

2. Mr. Ashutosh Pratap Singh, learned
advocate appears on behalf of appellant and
Mr. Saroj Giri, learned advocate for
respondent. Having heard them it appears
there was application dated 25th March,
2023 made by respondent (wife) under rule
11 in order VII, Code of Civil Procedure,
1908. Then came impugned judgment
dated 24th January, 2025. The judgment
says, the plaint seeking relief under section
34 in Specific Relief Act, 1963 stands
rejected by invoking section 7 of Family
Courts Act, 1984 and sections 3 and 4 in
Prohibition
of
Benami
Property
Transactions Act, 1988.

3. It is not necessary for us to take a
view on interpretation of section 3 in the Act
of 1988 as it stood prior to 1st November,
2016. While Mr. Singh submits that the
property belongs to his client, Mr. Giri
submits, the purchase was made in name of
his client, as for her benefit.

4. Mr. Singh has relied on clause (c)
under sub-section (1) in section 7 of Family
Courts Act, 1988. The clause is reproduced
below.

"7 (1) (c) a suit or proceeding
between the parties to a marriage with
respect to the property of the parties or of
either of them"

In the suit husband is petitioner
(plaintiff). The wife is respondent. Subject
matter of the suit is property, which appellant
says he purchased in name of respondent.
Accordingly, he seeks declaration that the
property is his. Respondent says the property
was purchased for her benefit. Thus, the suit
or proceedings between the parties, who are
married, is in respect of property, which one
of the parties is claiming to it be his and the
other to be purchased for her benefit. The
suit, in our considered view, is clearly one
that comes within section 7 (1) (c) in the Act
of 1988. Moreover the Family Court did
acknowledge the position of law as would
appear from a passage from official English
translation
of
impugned
judgement,
reproduced below.

"In brief, the facts of the suit are
that the plaintiff and defendant are husbandwife. They were married as per Hindu rites.
The subject matter of the aforesaid suit, arose
out of the marital relationship of the
husband-wife and provisions of the Family
Courts Act apply to both the parties."

5. As we have noticed, respondent had
filed
application
questioning
240 INDIAN LAW REPORTS ALLAHABAD SERIES
maintainability
of
the
petition/suit.
However, instead of framing issue of
maintainability, the learned Judge framed
one on the merits and proceeded to dismiss
the suit. In doing so, the learned Judge held
that vendor in the sale deeds had admitted
receiving
the
consideration
from
respondent, whereafter the learned Judge
said that the vendor had not been
examined. Admission by a party can
amount to proof for establishing a fact. In
this case, impugned judgement was made
ex parte against respondent. The vendor had
not been examined. Appellant, who was
petitioner/plaintiff was asserting that the
transactions
were
Benami.
In
such
circumstances, finding of admission by the
vendor (not examined) to hold against
appellant, who was urging to the contrary and
having, had produced the documents from his
custody,
in
our
view
was
erroneous
appreciation of the evidence before the Court.
Another paragraph from aforesaid official
English translation of impugned judgement is
reproduced below.

"From the perusal of the file, it is
evident that the defendant is absent, and due to
her absence, the proceedings of the suit have
been proceeded against her ex parte. The
seller of the sale deed, Shri Kishan Pal Gupta,
has admitted receiving the consideration for
the property sold, amounting to Rs. 80,000/-
from the defendant. Furthermore, the seller,
Shri Kishan Gopal Gupta, has not been
examined as witness in the instant case nor,
has
his
statement
been
recorded.
Furthermore, the plaintiff is not a witness in
the sale deed of the disputed property. In the
instant case, the plaintiff has filed affidavits
of Som Prakash as PW-02, and Mohan Babu
Agrawl as PW-03, but neither are witnesses
in the sale deed of the disputed property, nor
has any transaction for the consideration of
the property sold taken place before these
two witnesses. The present suit is civil in
nature."

6. For reasons aforesaid impugned
judgement reversed in appeal. The petition
(suit) is remanded for trial afresh. Respondent
has appeared and therefore will be entitled to
contest in the hearing on remand. We request
the Family Court to proceed with the
adjudication expeditiously, without granting
unnecessary adjournments.

7. We find in impugned judgment,
reference to suit no. 150 of 2021 filed by
appellant against respondent and pending in
the Court of Civil Judge, Firozabad. Mr.
Singh submits, the suit is for permanent
injunction filed in his client?s capacity as
tenant in the premises, to resist eviction by
respondent
wife.
This
fact
and
the
consequences in law must also be decided by
the Family Court. The Family Court has
before it, the subsequent suit filed. Provisions
in section 10 of the Code will not be
applicable because the former suit is for
protection against eviction while the latter is
for declaration of title. Appellant has
apparently put forward inconsistent claims
and whether he can prosecute for relief on
them, the Family Court will have to decide.

8. The appeal is allowed and disposed of.
----------
(2025) 9 ILRA 240
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.09.2025

BEFORE

THE HON'BLE SANDEEP JAIN, J.

First Appeal No. 368 of 2013

Dr. Ila Gupta ...Appellant
Versus
Om Prakash Gupta & Anr. ...Respondents