# Shailesh Kumar v. Smt. Vibha Gupta

- **Citation:** (2025) 9 ILRA 947
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-25
- **Case number:** First Appeal No. 719 of 2022
- **Bench:** Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shailesh-kumar-v-smt-vibha-gupta-54766
- **Pages:** 18

## Headnote

plaintiff's suit under O. VII R. 11 of Code of Civil
Procedure, 1908, on the grounds of lack of
territorial jurisdiction and alleged bar u/s 4(1) of
Benami Transactions (Prohibition) Act, 1988,
without confining its consideration to plaint
averments and documents filed by plaintiff, as
required by law.

Headnotes
Benami Transactions (Prohibition) Act,
1988 - s. 4(1) - Code of Civil Procedure,
1908 - O. 7 R. 11, s. 17 - Specific Relief
Act , 1963 - s. 34 - Plaintiff - appellant
instituted a civil suit seeking a declaration
of ownership and consequential relief in
respect of certain immovable property,
asserting that property in question was
purchased
benami
in
the
name
of
defendant,
though
the
entire
consideration had been paid by plaintiff
from his own lawful sources - Trial court,
upon application filed by defendant under
O. VII R. 11 of Code of Civil Procedure,
1908, rejected the plaint on grounds that
suit was barred by Section 4(1) of Benami
Transactions (Prohibition) Act, 1988, and
that court lacked territorial jurisdiction to
entertain the claim - Aggrieved by such
rejection, plaintiff preferred First Appeal
before High Court, contending that trial
court erred in law by dismissing the plaint
without confining itself to averments
contained therein and by entering into a
factual examination of issues that could
be
decided
only
after trial,
thereby
vitiating the impugned order as being
contrary
to
settled
legal
principles
governing the exercise of jurisdiction
under O. VII R. 11 CPC.

Held: From the law laid down by Apex Court in
the case of Pushpalata (infra), Mangathai
Ammal (infra), Marcel Martins (infra) and
Shaifali Gupta (infra) dealing with Benami
Transactions (Prohibition) Act,1988 before its
amendment in year 2016, and after its
948 INDIAN LAW REPORTS ALLAHABAD SERIES
amendment, it is apparent that a person can
purchase
property,
whether
movable
or
immovable, in the name of his wife or
unmarried daughter and it shall be presumed,
unless contrary is proved, that said property had
been
purchased
for
benefit
of
wife
or
unmarried daughter - It is clear that bar enacted
by Section 4(1) of Act, 1988 is not applicable
where property is held by a person who is
coparcener in Hindu undivided family and the
property is held for benefit of coparcener in
family - It is also not applicable when person in
whose name property is held is a trustee or
stands in fiduciary capacity for benefit of person
towards whom he stands in such capacity -
Husband may institute a suit asserting real
ownership by alleging that his wife is only a
benami holder, but the burden squarely lies on him
to establish benami nature of property through
evidence or circumstances - Wife is entitled to
rebut claim by demonstrating that property was
purchased from her own funds - Whether the case
falls

## Text

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9 All. Shailesh Kumar Vs. Smt. Vibha Gupta
947
22.
The
appeal
is
hereby
allowed. Consequently, the impugned
judgment and decree of the trial court
dated 10.11.2017 in O.S. No.205 of
2016 is set aside, the original suit is
restored on its original number. The
matter is remitted back to the trial
court.

23. The trial court is directed to
decide the issue of res judicata after
framing it as a preliminary issue and
after giving opportunity to both the
parties to lead oral and documentary
evidence on this issue, in accordance
with law, expeditiously.

24. However, in the facts and
circumstances of the case, the parties shall
bear their respective costs.

25. Office is directed to prepare the
decree accordingly.

26. Interim order, if any, stands
vacated.

27. All the pending applications, if
any, stand disposed of.
----------
(2025) 9 ILRA 947
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.09.2025

BEFORE

THE HON'BLE SANDEEP JAIN, J.

First Appeal No. 719 of 2022

Shailesh Kumar ...Appellant
Versus
Smt. Vibha Gupta ...Respondent

Counsel for the Appellant:
Shashi Prakash Rai, Shrinath
Counsel for the Respondent:
Anand Kumar Srivastava, Udayan Nandan

Issue for Consideration
Issue pertains to whether the trial court
committed a manifest illegality in rejecting
plaintiff's suit under O. VII R. 11 of Code of Civil
Procedure, 1908, on the grounds of lack of
territorial jurisdiction and alleged bar u/s 4(1) of
Benami Transactions (Prohibition) Act, 1988,
without confining its consideration to plaint
averments and documents filed by plaintiff, as
required by law.

Headnotes
Benami Transactions (Prohibition) Act,
1988 - s. 4(1) - Code of Civil Procedure,
1908 - O. 7 R. 11, s. 17 - Specific Relief
Act , 1963 - s. 34 - Plaintiff - appellant
instituted a civil suit seeking a declaration
of ownership and consequential relief in
respect of certain immovable property,
asserting that property in question was
purchased
benami
in
the
name
of
defendant,
though
the
entire
consideration had been paid by plaintiff
from his own lawful sources - Trial court,
upon application filed by defendant under
O. VII R. 11 of Code of Civil Procedure,
1908, rejected the plaint on grounds that
suit was barred by Section 4(1) of Benami
Transactions (Prohibition) Act, 1988, and
that court lacked territorial jurisdiction to
entertain the claim - Aggrieved by such
rejection, plaintiff preferred First Appeal
before High Court, contending that trial
court erred in law by dismissing the plaint
without confining itself to averments
contained therein and by entering into a
factual examination of issues that could
be
decided
only
after trial,
thereby
vitiating the impugned order as being
contrary
to
settled
legal
principles
governing the exercise of jurisdiction
under O. VII R. 11 CPC.

Held: From the law laid down by Apex Court in
the case of Pushpalata (infra), Mangathai
Ammal (infra), Marcel Martins (infra) and
Shaifali Gupta (infra) dealing with Benami
Transactions (Prohibition) Act,1988 before its
amendment in year 2016, and after its
948 INDIAN LAW REPORTS ALLAHABAD SERIES
amendment, it is apparent that a person can
purchase
property,
whether
movable
or
immovable, in the name of his wife or
unmarried daughter and it shall be presumed,
unless contrary is proved, that said property had
been
purchased
for
benefit
of
wife
or
unmarried daughter - It is clear that bar enacted
by Section 4(1) of Act, 1988 is not applicable
where property is held by a person who is
coparcener in Hindu undivided family and the
property is held for benefit of coparcener in
family - It is also not applicable when person in
whose name property is held is a trustee or
stands in fiduciary capacity for benefit of person
towards whom he stands in such capacity -
Husband may institute a suit asserting real
ownership by alleging that his wife is only a
benami holder, but the burden squarely lies on him
to establish benami nature of property through
evidence or circumstances - Wife is entitled to
rebut claim by demonstrating that property was
purchased from her own funds - Whether the case
falls within exception u/s 4(3) of Act, 1988 is a
matter to be determined on the basis of evidence -
Bar u/s 4(1) cannot be decided solely from plaint
averments - It is also evident that whether plaintiff
should have claimed cancellation of allotment
dated 6.6.2003 in favour of defendant by Noida or
not, will depend upon whether plaintiff is real
owner of disputed property or not - At the stage of
considering application under O. 7 R. 11 CPC,
plaintiff 's suit cannot be rejected on this ground -
Thsu, trial court has committed material illegality in
allowing defendants application under O. 7 R. 11
CPC - Impugned order is perverse and set aside -
Consequently, appeal has merit and allowed.
[Paras 35, 36, 37, 39, 40] (E-13)

Case Law Cited
Shivnarayan (D) By Lrs. v. Maniklal (D)
Through Lrs. & Ors., (2020) 11 SCC 629;
Manoj Arora v. Mamta Arora, 2018 SCC
OnLine Del 10423; Saurabh Gupta v.
Archna Gupta & 2 Ors., 2024 SCC OnLine
All 2268; Gagandeep Kaur v. Rattandeep
Singh Grover & Ors., 2025 Supreme
(Online)
(Del)
3297;
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; Pawan
Kumar v. Babulal (Since deceased through
Lrs.) & Others, (2019) 4 SCC 367;
referred to

Pushpalata v. Vijay Kumar(Dead) through Lrs.
and others, 2022 SCC OnLine SC 1152;
Mangathai Ammal(Died) through Lrs. and others
v. Rajeswari and others, (2020) 17 SCC 496;
Marcel Martins v. M.Printer and others, (2012)5
SCC 342; Shaifali Gupta v. Vidya Devi Gupta
and others, 2025 SCC OnLine SC 1181 -
followed

List of Acts
Benami Transactions (Prohibition) Act, 1988;
Code of Civil Procedure, 1908; Specific Relief Act
, 1963.

List of Keywords
First Appeal u/s 96 C.P.C.; O. VII R. 11
C.P.C.;
Rejection
of
plaint;
Territorial
jurisdiction; Cause of action; Permanent
injunction;
Bar
u/s
4(1)
of
Benami
Transactions
(Prohibition)
Act,
1988;
Maintainability of suit; Relief of Declaration;
Relationship of husband and wife; Power of
attorney - Allotment of plot; Restrained from
selling, mortgaging, alienating, transferring;
Benami
owner
of
disputed
immovable
property; Sale Deeds in respect of disputed
property;
Cancellation
of
sale
deeds;
Coparcener
in
Hindu
undivided
family;
Benefit of coparcener in family - Property
purchased
from
personal
income;
Jurisdictional infirmity; Impugned order set
aside; Matter remitted to trial court; Court of
competent jurisdiction

Case Arising From
APPELLATE JURISDICTION: First Appeal No. -
719 of 2022
From
the
Judgment
and
Decree
dated
04.05.2022 passed by ACJM Court No. 3,
Gautam Buddha Nagar in O.S. No. 465 of 2017

Appearances for Parties
Advs. for the Petitioner:
Shashi Prakash Rai, Shrinath

Adv. for the Respondent:
Anand Kumar Srivastava, Udayan Nandan

(Delivered by Hon'ble Sandeep Jain, J.)
9 All. Shailesh Kumar Vs. Smt. Vibha Gupta
949

1. The instant appeal under Section 96
of the CPC has been filed by the plaintiff in
O.S. No. 465 of 2017 Shailesh Kumar
versus Smt. Vibha Gupta, against judgment
and decree dated 4.5.2022 passed by the
ACJM Court no. 3, Gautam Buddha Nagar,
whereby the plaintiff 's suit has been
rejected under Order 7 Rule 11 CPC on the
ground that, one of the immovable property
regarding which relief has been claimed by
the plaintiff, was situated in District
Auraiya, which was outside the jurisdiction
of the Court and further, the plaintiff had
not claimed relief of cancellation of lease
deed executed in favour of the defendant by
the Noida.

2. Factual matrix is that the plaintiff
appellant Shailesh Kumar filed O.S. no.465
of 2017 against the defendant Smt. Vibha
Gupta with the averments that plaintiff was
a freelance journalist by profession, who
published
weekly
newspaper
'Cyber
Infosis'. The defendant's second marriage
was solemnised with the plaintiff on 4.3.2000 as
per the rights and rituals of Arya Samaj in Noida.
The defendants first marriage was solemnised
with Rishindra Jai Piparsaniya son of unknown,
resident of Chattarpur, Madhya Pradesh, out of
that wedlock a son Shishil Kumar was born. The
defendant in furtherance of criminal conspiracy by
disclosing that she was widow, solemnised
marriage with the plaintiff and refused to bear
children and emotionally pressurised him for
adopting her 10-year-old son, from her previous
marriage. In deference to the defendant's wishes,
the plaintiff performed his duties as husband and
father, for the sake of happy marital life, did not
procreate any children from the wedlock with the
defendant and agreed to adopt the son of the
defendant from a previous marriage, as his heir.

3. The plaintiff further averred that
since he was not having any fixed source of
income, from the savings made from his
income, for securing the future of his
family, he applied for a plot, for publication
of his newspaper in institutional category
of a scheme of Noida, through application
no. 369, registration number 18/2 dated
15.1.2003, accompanied with processing
fees of ₹ 5000, which was paid by pay
order no. 895834 dated 15.1.2003 and also
deposited 10% of the estimated cost of the
plot amounting to rupees 1,65,000 through
demand draft with the State Bank of
Patiala, Noida Branch on 15.1.2003.

4. The plaintiff further submitted
that the defendant on the pretext of her
son's
future,
began
to
emotionally
pressurise him and compelled him for
getting allotment of the above plot in her
favour. Thereafter, the plaintiff in order
to get the allotment in favour of the
defendant,
moved
an
application
supported by an affidavit, before Noida,
on the basis of which lease deed of plot
number C 20/6B, area 350 yd in
sector 62, Noida, Gautam Buddha
Nagar was executed in favour of the
defendant by Noida on 6.6.2003.

5. The plaintiff further averred that
since the defendant was previously married
and not taken divorce from her previous
husband as such, in order to avoid any legal
complication, the defendant began to write
the name of her father in all the documents,
in place of her husband- plaintiff.

6. The plaintiff further averred that
defendant pressurised him on the pretext
that if the plot was allotted in the name of
plaintiff then if, some thing untoward
happened to him, then the plaintiffs siblings
will claim the plot, which will harm the
financial and legal interests of her son. Due
to this pressure, in order to secure the
interests of the defendant and her son, the
950 INDIAN LAW REPORTS ALLAHABAD SERIES
plaintiff was compelled to get the allotment
of plot made in favour of the defendant.

7. The plaintiff further averred that
besides the above property, he from his
own funds purchased in the defendants
village Udanpura, Mauja Chichauli, tehsil
and District Auraiya, plot having Gata no.
430Ka/5.29 ha and half share of Gata no.
432Ka/1.72 ha, by three sale deeds, for
establishing college, in the name of the
defendant, which were registered in the
office of the sub-registrar Auriya in book
no.1, khand 714, page number 15/32 serial
no. 3331, page number 45/70 serial no.
3333 and page number 33/44 serial no.
3332. The defendant appointed him as her
power-of-attorney in respect of the above
property situated in District Auraiya, which
was registered in the office of sub-registrar
Auraiya in book no.4, Jild no.9, page no.
101 112, serial no. 22 on 27.4.2013,
which was subsequently, by hatching
criminal conspiracy, without obtaining the
consent of plaintiff, was cancelled on
30.9.2014 which was registered in book
no.4, Jild no. 10, at pages 261 271 at
serial no. 20. According to the plaintiff, the
defendant made a false statement for
cancelling the above power-of-attorney that
her husband remained out of the station due
to his professional/personal work and was
not able to look after her property.

8. It is the specific assertion of the
plaintiff that he is the owner of the abovementioned properties, which was purchased
from his personal income. The plaintiff
further averred that the defendant in
collusion with her son from her previous
marriage, was threatening to misuse his
documents, to falsely implicate him in
cases of woman harassment, domestic
violence and criminal conspiracy. He
further averred that his entire savings had
been spent on the educational expenses of
defendants son Shishil Kumar. At present,
he was suffering from diabetes and other
ailments, was living in penury, as such, he
intended to sell the above properties for
meeting out the expenses of his treatment
and future expenses. The defendant was
neither willing to get him treated nor
willing to transfer the property in his
favour. He further averred that at present
the market value of the plot situated in
Noida was about rupees one crore. Despite
having
property,
he
was
financially
dependent on the defendant. He was not
able to utilise the above properties for his
own need.

9. The plaintiff specifically averred
that since the above plot of Noida was
purchased from his own income, he was the
real owner of that plot and after the
allotment of plot in the year 2003, he was
in continuous and undisputed possession of
that plot. He further averred that the
defendant ordered him to remove his
possession from the above plot on 7.7.2017
and was intending to sell the above plot and
if, the defendant succeeded in doing so, the
purpose of the suit shall be frustrated.

10. The plaintiff claimed the following
reliefs in the suit:-

(i)By declaratory decree granted in
favour
of
the
plaintiff
against
the
defendant, the plaintiff be declared the real
owner of property number C 20/6B,
sector 62, Noida, Gautam Buddha Nagar.

(ii)By decree of permanent injunction
granted in favour of the plaintiff against the
defendant, the defendant be restrained from
selling, mortgaging, alienating, transferring
in any manner whatsoever and from
interfering in the peaceful possession of the
9 All. Shailesh Kumar Vs. Smt. Vibha Gupta
951
plaintiff and from dispossessing him,
except by adopting due procedure of law,
from the above property.

(iii)By declaratory decree granted in
favour
of
the
plaintiff
against
the
defendant, the plaintiff be declared the real
owner of the property situated in khasra no.
430 ka/area 5.29 ha and half share of
khasra no.432ka/area 1.72 ha situated in
village Udanpura, mauja Chichauli, District
Auraiya.

11.
The
defendant
moved
an
application under Order 7 Rule 11 CPC
with the averments that the plaintiff has
filed the suit against her for the relief of
declaration and permanent injunction. The
plaintiff
has
averred
that
she
was
previously married and not divorced her
previous husband, which implies that there
was no relationship of husband-and-wife
between the plaintiff and the defendant. It
was also evident that the plaintiff has
alleged that the defendant was the Benami
owner of the disputed property and has
claimed the relief that he be declared the
real owner of the disputed property as such,
the suit was barred by Section 4(1) of the
Benami Transactions (Prohibition) Act of
1988. It was also averred that the plaintiff
sought declaration of ownership regarding
agricultural land situated outside District
Gautam Buddha Nagar, the jurisdiction for
which vests in the revenue court, as such,
the court was not competent to grant that
relief. Due to this, the suit was liable to be
dismissed under Order 7 Rule 11(d) CPC.

12. The plaintiff opposed the above
application of the defendant in the trial
court by submitting that provisions of
Order 7 Rule 11 CPC was not applicable in
the facts and circumstances of the case. The
defendant had already executed 15 sale
deeds in respect of the disputed property,
during the pendency of the suit and
intended to sell the remaining property, as
such,
the
defendant's
application
be
rejected.

13. The trial court concluded that
undisputedly the lease deed of Noida
property was executed on 6.6.2003 in
favour of the defendant, there was no proof
of possession of plaintiff on the above
disputed property. It was further concluded
that regarding the other property situated in
District Auraiya, no relief can be granted
by the court because it was outside the
jurisdiction of the court. In view of the
above, it was concluded that the plaintiff
had no cause of action to file the suit. It
was further concluded by the trial court that
the plaintiff had not challenged the lease
deed dated 6.6.2003 and since there was no
dispute regarding its execution, as such, the
suit was also barred on this ground.

14. Learned counsel for the plaintiffappellant submitted that the impugned
order of the trial Court is perverse. Learned
counsel submitted that at the stage of
deciding Order 7 Rule 11 CPC application,
only
the
plaint
averments
and
the
documents submitted in support, by the
plaintiff are to be examined, neither the
written statement of the defendant nor any
documents submitted by it, can be looked
into by the trial court, while deciding the
above application. Learned counsel also
submitted that at this stage the merits of the
case of plaintiff was also not to be
examined. The court was not supposed to
examine whether the plaintiff is telling
truth or not.

15. Learned counsel further submitted
that the trial court erred in concluding that
with respect to the property situated in
952 INDIAN LAW REPORTS ALLAHABAD SERIES
District
Auraiya,
the
court
had
no
jurisdiction to grant any relief to the
plaintiff. Learned counsel submitted that
since the cause of action between the
plaintiff and defendant is same, as such,
under Section 17 of the CPC, the court also
had the jurisdiction in respect of the
property situated in District Auraiya.

16. Learned counsel further submitted
that the plaintiff had specifically averred
that there was relationship of husband-andwife
between
the
plaintiff
and
the
defendant and for proving this relationship,
plaintiff
had
filed
power-of-attorney
granted by the defendant in favour of the
plaintiff, which specifically mentioned that
the defendant was the wife of the plaintiff.
Learned counsel further submitted that
since there was a relationship of husbandand-wife between the plaintiff and the
defendant as such, the disputed property
was not a benami property. With these
submissions, it was prayed that the appeal
be allowed. Learned counsel for the
plaintiff / appellant has relied upon the
following judgments in support of his
submissions:-

(i)
Shivnarayan(D)
By
Lrs.
vs.
Maniklal(D) Through Lrs. & Ors.(2020)11
SCC 629

(ii) Manoj Arora vs. Mamta Arora
2018 SCC OnLine Del 10423

(iii) Saurabh Gupta vs. Archna Gupta
& 2 Ors. 2024 SCC OnLine All 2268

(iv) Gagandeep Kaur vs. Rattandeep
Singh
Grover
&
Ors.
2025
Supreme(Online)(Del)3297

17. Per contra, learned counsel for the
defendant-respondent submitted that the
impugned order of the trial court was
perfectly legal because the trial court was not
having jurisdiction with respect to the
immovable property situated in District
Auraiya. Learned counsel also submitted that
there was no relationship of husband-andwife between the plaintiff and the defendant.
The disputed property was purchased by the
defendant, from her own funds, which was
self acquired property of defendant, as such,
the plaintiff had no right to claim declaration
with respect to that property. Learned counsel
further submitted that the defendant had
already executed several sale deeds of the
disputed land regarding which, relief of
cancellation of sale deeds had not been
claimed by the plaintiff, the plaintiff was also
not in possession of the disputed property as
such, the plaintiffs suit for simplicitor relief
of declaration, without seeking possession of
the disputed land and also without seeking
cancellation of the sale deeds executed by the
defendant in favour of the third parties, was
not maintainable and relief of declaration
cannot be granted to the plaintiff regarding
the disputed property. The plaintiff 's suit was
barred by section 34 of the Specific Relief
Act. With these submissions, it was prayed
that the appeal is meritless and is liable to be
dismissed.

18. I've heard the learned counsel of
both the sides and perused the record of the
trial court.

19. The Apex Court in the case of
Vinod Infra Developers Ltd. vs. 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.
9 All. Shailesh Kumar Vs. Smt. Vibha Gupta
953

20. The Apex Court in the case of
Keshav Sood vs. 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.

21. The Apex Court in the case of
Shivnarayan(dead) by Lrs.(supra), while
discussing the place of suing, where the
immovable property or properties is situate in
jurisdiction of different courts, held as under:-

33. Sections 16 and 17 CPC are part of
the one statutory scheme. Section 16 contains
general principle that suits are to be instituted
where subject-matter is situate whereas
Section 17 engrafts an exception to the
general rule as occurring in Section 16.

34. From the foregoing discussions,
we arrive at the following conclusions with
regard to ambit and scope of Section 17
CPC:

34.1. The word property occurring in
Section 17 although has been used in
singular but by virtue of Section 13 of the
General Clauses Act it may also be read as
plural i.e. properties.

34.2. The expression any portion of
the property can be read as portion of one
or more properties situated in jurisdiction
of different courts and can be also read as
portion of several properties situated in
jurisdiction of different courts.

34.3. A suit in respect of immovable
property or properties situate in jurisdiction
of different courts may be instituted in any
court
within
whose
local
limits
of
jurisdiction, any portion of the property or
one or more properties may be situated.

34.4. A suit in respect of more than
one property situated in jurisdiction of
different courts can be instituted in a court
within local limits of jurisdiction where one
or more properties are situated provided
suit is based on same cause of action with
respect to the properties situated in
jurisdiction of different courts.

22. 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.

23. From the law laid down by the
Apex
Court
in
the
case
of
Shivnarayan(supra) it is clear that Section
17 of the CPC can be applied in the event
there are several properties, one or more of
which
may
be
located
in
different
jurisdiction of Courts. It is also clear that
the suit filed in a court pertaining to
properties situate in jurisdiction of more
than two courts, the suit is maintainable
only, when it is filed on one cause of
action. It is clear that the suit in respect of
immovable property or properties situate in
954 INDIAN LAW REPORTS ALLAHABAD SERIES
jurisdiction of different courts may be
instituted in any court within whose local
limits of jurisdiction, any portion of the
property or one or more properties may be
situated.

24. It is apparent that in the instant
case one immovable property is situated in
District Gautam Buddha Nagar and the
other is situated in District Auraiya as such,
the plaintiff can file suit for declaration of
his rights in the above properties, in any
court
within
whose
local
limits
of
jurisdiction any portion of the property or
one property is situated. In this case, the
plaintiff could have filed the suit either in
the court of District Gautam Buddha Nagar
or in Auraiya, but he has chosen to file the
suit in the court of District Gautam Buddha
Nagar, which cannot be said to be barred,
insofar as the issue of jurisdiction of the
court is concerned. From the above law laid
down by the Apex Court in the case of
Shivnarayan(supra) it is clear that the suit
filed by the plaintiff claiming the relief of
declaration of ownership of the disputed
property held in the jurisdiction of district
court Gautam Buddha Nagar and Auraiya,
is maintainable in the civil court of District
Gautam Buddha Nagar, because the cause
of action of both the suits was same. The
plaintiff was claiming declaration in respect
of both the disputed properties on the
ground that he was the real owner of these
properties and the defendant, his alleged
wife, was only benami owner.

25. It is also apparent that the plaintiff
has specifically averred that his marriage
was solemnised with the defendant on
4.3.2000 as per rights and rituals of the
Arya Samaj in Noida. The plaintiff has also
filed the copy of the power-of-attorney
dated 27.4.2013 executed by the defendant in
favour of plaintiff, in which it is specifically
averred that the plaintiff is the husband of
defendant. This power-of-attorney relates to
the disputed immovable property situated in
District Auraiya.

26. It is also apparent that the trial court
concluded in the impugned order that the
disputed property belongs to the defendant
and there was no dispute about this, which is
totally incorrect because, the plaintiff has
alleged in the plaint that he was the real
owner of the disputed property, the disputed
property was purchased from his money, only
on the pressure exerted by the defendant. It
has been specifically averred by the plaintiff
that he was the real owner of the disputed
property and the defendant was in reality, the
benami owner.

27. Besides this, the plaintiff also
averred in the plaint that he was in possession
of the disputed property. The trial court
was not supposed to examine the issue of
possession on merits at that stage, by
holding
that
no
documentary
proof
regarding possession has been filed by the
plaintiff. If any documentary proof was
ever required, then a copy of the above
mentioned
power-of-attorney
dated
27.4.2013 itself was sufficient to primafacie prove the possession of the plaintiff,
in which, the address of the plaintiff is
recorded as C-20/6B, sector 62, Noida,
Gautam Buddha Nagar, which is also the
address of the disputed property.

28. The trial court also concluded in the
impugned order that the lease deed of the
disputed property situated in Gautam Buddha
Nagar was executed in favour of the
defendant by Noida on 6.6.2003 but in the
instant suit filed in the year 2017, the plaintiff
has not claimed the relief of cancellation of
the above lease deed as such, the suit was
also barred by law.
9 All. Shailesh Kumar Vs. Smt. Vibha Gupta
955

29. It is also apparent that though the
defendant had taken a plea in her Order 7
Rule 11 CPC application that the plaintiff 's
suit was barred under Section 4(1) of the
Benami
Transactions(Prohibition)
Act,
1988 but the trial court did not record any
finding on this. However, this issue has
been pressed by the learned counsel for the
defendant-respondent, as such, this Court
has deemed appropriate to record its
finding on that issue.

30. For appreciating the controversy in
correct perspective, it will be appropriate to
examine the relevant provisions of The
Benami
Transactions
(Prohibition)
Act,1988. Section 2(a), 2(c), 3 and 4, of the
Act, insofar as they are relevant, reads as
under:-

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

(a) benami transaction means any
transaction in which property is transferred
to one person for a consideration paid or
provided by another person;

*** *** ***

(c) property means property of any
kind, whether movable or immovable,
tangible or intangible, and includes any
right or interest in such property.

3. Prohibition of benami transactions.-
(1) No person shall enter into any benami
transaction.

(2) Nothing in sub-section (1) shall
apply to-

(a) the purchase of property by any
person in the name of his wife or unmarried
daughter and it shall be presumed, unless
the contrary is proved, that the said
property had been purchased for the benefit
of the wife or the unmarried daughter;

(b) *******

Explanation-*******

(3)*******

(4)*******

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.

(3) Nothing in this section shall apply,

(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

(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.
956 INDIAN LAW REPORTS ALLAHABAD SERIES

31. The Apex Court in the case of
Pushpalata vs. Vijay Kumar(Dead) through
Lrs. 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:-

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. 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
9 All. Shailesh Kumar Vs. Smt. Vibha Gupta
957
transaction on the touchstone of the above
two indicia.

*** *** ***

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
plaintiffsrespondents.

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
958 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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 defendantappellant 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.