# Sunil Kumar Dublish v. Ramesh Chandra Dublish & Ors

- **Citation:** (2026) 2 ILRA 1245
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-02-10
- **Case number:** First Appeal No. 978 of 2025
- **Bench:** Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunil-kumar-dublish-v-ramesh-chandra-dublish-ors-54153
- **Pages:** 16

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2 All. Sunil Kumar Dublish Vs. Ramesh Chandra Dublish & Ors.
1245

37. Accordingly, the appeal is dismissed at the admission stage under Order XLI Rule 11
CPC. Consequently, the impugned judgment and decree dated 23.07.2025 is affirmed.
----------
(2026) 2 ILRA 1245
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.02.2026

BEFORE

THE HON'BLE SANDEEP JAIN, J.

First Appeal No. 978 of 2025

Sunil Kumar Dublish ...Appellant
Versus
Ramesh Chandra Dublish & Ors. ...Respondents

Issue for Consideration
Issue pertains to whether the trial court was justified in rejecting the plaint under O. VII R. 11(d) of Code of
Civil Procedure, 1908 on the ground that the suit was barred by s. 4(1) of Benami Transactions (Prohibition)
Act, 1988, particularly when the plaint averments prima facie disclosed claims falling within the statutory
exceptions under Section 4(3) of the Act and raised triable issues requiring adjudication on evidence.

Headnotes
Code of Civil Procedure, 1908 - O. 7 R. 11(d) - Benami Transactions (Prohibition) Act, 1988 - ss.
4(1), 4(3) - Rejection of Plaint - Triable issues involved - Benami Transaction - Determination -
Question of fact - Bar of Suit - Scope and applicability - The plaintiff - appellant instituted a suit
for declaration claiming exclusive ownership over the disputed residential property on the plea
that it had been purchased from funds of Hindu Undivided Family and his business income,
though recorded in the name of his mother, who was alleged to be merely a benamidar, and
further asserted rights in ancestral agricultural property said to have devolved upon him through
a prior family partition, while also disputing certain alienations made by his father and the
validity of a Will executed in favour of another defendant - The defendants, in response, moved
an application under O. VII R. 11 CPC contending that the suit was barred by s. 4(1) of Benami
Transactions (Prohibition) Act, 1988 and also by limitation, pursuant to which the trial court
rejected the plaint, leading to the instant First Appeal before the High Court.

Held: If the plaintiff succeeds in proving that his mother was not having the financial capacity to purchase the
disputed land of the property, as well as, to construct a house thereon, and the funds were provided by the
plaintiff from the income of his firm or were obtained by selling the immovable property of HUF, then certainly,
the plaintiff's suit was not barred u/s 4(1) of Act of 1988 - The bar of s. 4(1) is only attracted where the
disputed property does not fall within the exceptions enumerated in s. 4(3) of Act of 1988 - It is also well
settled that whether the disputed property is Benami or not, is a disputed question of fact, which cannot be
decided at the stage of considering an application under O. 7 R. 11 CPC, and the plaintiff 's suit cannot be
rejected on this ground at the threshold - The trial court has committed material illegality in allowing the
defendants application under O. 7 R. 11(d) of CPC - The impugned order set aside - Accordingly,
appeal has merit, thus, allowed. [Paras 29 to 31] (E-13)

Case Law Cited
Vinod Infra Developers Ltd. v. Mahaveer Lunia and others 2025 INSC 772; Keshav Sood v. Kirti Pradeep
Sood and others 2023 SCC OnLine SC 2459; Pushpalata v. Vijay Kumar (Dead) through LR's and others
1246 INDIAN LAW REPORTS ALLAHABAD SERIES
2022 SCC OnLine SC 1152; Marcel Martins v. M.Printer and others (2012)5 SCC 342; Shaifali Gupta v.
Vidya Devi Gupta and others 2025 SCC OnLine SC 1181; Pawan Kumar v. Babulal (deceased) through LR's
(2019) 4 SCC 367 - referred to

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

List of Keywords
First Appeal; O. VII R. 11 CPC; Rejection of plaint; s. 96 CPC; ss. 4(1) and 4(3) of Benami Transactions
(Prohibition) Act, 1988; Benami transaction; Benamidar; Bar of suit; Hindu Undivided Family (HUF);
Coparcener; Fiduciary capacity; Real owner; Ostensible owner; Declaration of title; Absolute ownership;
Family partition; Family settlement; Joint family business; Self-acquired property; Mutation; Transfer of
property; Consideration; Will; Forged and fabricated document; Legal heir; Right, title and interest;
Possession; Superstructure and land beneath; Partnership firm; Maintainability of suit; Jurisdictional bar;
Restoration of suit; Appeal allowed.

Case Arising From
APPELLATE JURISDICTION: First Appeal No. - 978 of 2025

From the Judgment and Decree dated 30.8.2025 passed by the Court of Civil Judge (Senior Division) Meerut
in O.S. No. 782 of 2006

Appearances for Parties
Advs. for the Appellant:
Durgesh Kumar Singh, Sudhir Kumar Malviya

Adv. for the Respondent:
Shiv Sagar Singh

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

1. The instant first appeal has been filed by the plaintiff under Section 96 of the CPC against
the impugned judgment and decree dated 30.8.2025 passed by the court of Civil Judge(Senior
Division) Meerut in O.S. No. 782 of 2006 Sunil Kumar Dublish vs. Ramesh Chand
Dublish(deceased through LR) and others, whereby the defendant's application 89-C under Order 7
Rule 11 CPC has been allowed and consequently, the plaint has been rejected on the ground that
the suit is barred under Section 4(1) of the Benami Transactions(Prohibition) Act, 1988, hereinafter
referred to as the 'Act of 1988'.

2. Factual matrix is that the plaintiff- appellant Sunil Kumar Dublish filed O.S. No. 782 of
2006 with the averments that that the plaintiff and defendant no.1 Ramesh Chand Dublish and
defendant no.2 Smt. Sarla Dublish belong to the same family, the defendant no.1 is the father of the
plaintiff and defendant no.2 is the mother of the plaintiff. It was averred that the predecessors of the
plaintiff and above defendants Late Shanti Saran Dublish was the owner in possession of certain
agricultural property, which was described in para 3 of the plaint situated in village Mawana Kalan,
Pargana Hastinapur, Tehsil Mawana, District-Meerut, the khasra number of which was changed in
consolidation proceedings, which is presently recorded in the name of defendant no.1. It was
further averred that Late Shanti Saran Dublish died in the year 1953, who was the grandfather of
2 All. Sunil Kumar Dublish Vs. Ramesh Chandra Dublish & Ors.
1247
the plaintiff, had four sons namely Ramesh Chand Dublish(defendant no.1), Suresh Chand,Naresh
Chand and Umesh Chand.

3. It was further averred by the plaintiff that after the death of Shanti Saran Dublish a family
partition took place on 24.2.1953 between the four sons of the deceased and the property was
divided into four shares and the defendant no.1 became the owner in possession of land inherited in
family partition. It was further averred by the plaintiff that he being the grandson of Shanti Saran
Dublish, is the owner of half share of the above property and the remaining half share of the above
property belongs to defendant no.1. It was further averred that the defendant no.1, being the father
of the plaintiff, was looking after the management of the above property, as the family was Hindu
Undivided Family.

4. It was further averred by the plaintiff that his father/defendant no.1 transferred a major
portion of the above property to various persons on the assumption that he was the sole owner of
the above property without informing and seeking any permission from the plaintiff and the amount
received after transferring the property as consideration, also remained with the defendant no.1, as
the family was undivided.

5. It was further averred that from the income of the partnership firm Messers Sunil Packaging
Industries, in which his father was a sleeping partner, and from the cash credit Bank limit availed
by him, certain immovable properties were purchased in the year 1989 and 1990, the description of
which was given in the plaint, in the name of his mother, Smt. Sarla Dublish (defendant no.2), on
which a house was constructed by him from the funds obtained by selling agricultural property and
as such,after the death of his mother on 24.2.2015, he has become the sole owner of this property
bearing no. 342/1 Harnamdass Road, Civil Lines, Meerut.

6. It was further averred that his mother, Smt. Sarla Dublish was only a Benami owner of the
above property and after her death , her legal heir 2/1 Rajeev Kumar Dublish has not acquired any
right, title or interest in the disputed property.

7. It was further averred that on 4.1.1972 the plaintiffs father created/manipulated a family
settlement to grab his property and at that time he was studying in B.Sc. This family settlement was
never acted upon as such, was not in his knowledge, which also does not bear his signature. It was
averred that the plaintiff became aware of the above alleged family settlement from the proceedings
of case pending in the court of SDO, Mawana, Meerut. It was further averred that his father started
interference into the rights title and possession of the disputed property, which came to his share
and therefore, the plaintiff had to file a suit on 5.11.2001 in the court of SDO,Mawana for the
declaration of ownership of half share of the property inherited from his grandfather Shanti Saran
Dublish , which came into his share in the family partition that took place between the four sons of
Shanti Saran Dublish.

8. It was further averred that the plaintiff requested his father/defendant no.1 to render the
accounts of the amount of consideration received from transferring the property to various persons
and also to render the accounts of income received from the property managed by him for a long
time, but his father denied. It was further submitted that the defendant no. 1 and 2 have also denied
1248 INDIAN LAW REPORTS ALLAHABAD SERIES
the partition of the residential house to the extent of his half share in the land underneath the house.
It was averred that the superstructure on the land was the exclusive property of the plaintiff
whereas, the land beneath it, was the joint property of the plaintiff and defendant no.1. It was
averred that the defendant no.2 has no share in the residential property no.342/1,Harnamdass
Road,Civil Lines, Meerut.

9. It was further averred that his mother Smt.Sarla Dublish had no right in the disputed
property as such, she could not have executed the registered Will on 15.10.2005 in favour of
defendant no.3 Smt.Nupur Dublish. It was alleged that the above Will was a forged document,
which was not binding upon the plaintiff. It was further averred that after the death of the plaintiffs
mother, Rajeev Kumar Dublish was substituted as her legal heir,but at that time, the existence of
the above Will was never disclosed to the plaintiff which itself proves that, the alleged Will was a
forged and fabricated document, which confers no right on the defendant no.3, insofar as the
disputed property is concerned.

10. The plaintiffs has claimed the following reliefs:-

(i) That by decree of Court, the plaintiff be declared as absolute and sole owner of house
no. 342/1, Harnamdass Road, Civil Lines, Meerut.

(ii) That the cost of the suit be also awarded to the plaintiff against the defendant's.

(iii) That any other relief which the court deems fit and proper also be awarded to the
plaintiff against the defendants.

11. The defendants moved an application 89-C in the trial court with the averments that after
the partition, the property became the self acquired property of plaintiffs father Ramesh Chand
Dublish, in terms of the provision of the UPZA & LR Act. The plaintiff has averred that his father
dishonestly transferred a major portion of the property to some persons by executing sale deeds etc.
without the knowledge and information of the plaintiff ,but no details of such transfer and receipt of
the sale consideration have been mentioned in the plaint. It was further averred that the plaintiff
alleges that the disputed property was purchased from the income of his business, which was a
Benami property, as such, the suit was barred by the provisions of the Benami
Transactions(Prohibition) Act,1988. It was further averred that the plaintiff was challenging the
alleged family settlement dated 4.1.1972 after a period of more than 33 years, in the year 2006, as
manipulated and fabricated and not binding upon him, which allegedly came into the knowledge of
the plaintiff in the year 2001, but the suit was filed after the prescribed period of limitation of three
years, which was grossly barred by limitation. It was further averred that the plaintiff has alleged
his mother/defendant no. 2 to be the Benami owner of the disputed property, as such the suit was
barred by the Act of 1988. With these averments, it was prayed that the plaint be rejected under
Order 7 Rule 11(d) CPC.

12. The plaintiff- appellant opposed the above application of the defendant's on the ground
that it was not legally maintainable because the defendants have already filed written statement and
plaintiff has also filed his evidence and he has also been partly cross-examined, therefore, the
2 All. Sunil Kumar Dublish Vs. Ramesh Chandra Dublish & Ors.
1249
application could not have been moved at this stage. It was averred that the defendants want to
delay the disposal of the suit on one pretext or the other. It was further averred that when Shanti
Saran Dublish died, plaintiff was young/minor at that time and mere mutation of name of plaintiffs
father Ramesh Chand Dublish over the inherited property has no adverse affect upon the right, title
and interest of the plaintiff in the disputed property. It was further submitted that the plaintiff has
claimed declaration that he is the owner of two thirds share of the land of the disputed property and
the sole owner of the superstructure standing on 342/1,Harnamdass Road,Civil Lines, Meerut, on
which the provisions of UPZA & LR Act are not applicable. It was further averred that plaintiff
was minor and member of Hindu Undivided Family(HUF), plaintiffs father being the Karta of the
HUF, who was looking after the entire affairs of the property inherited by the plaintiff from his
grandfather Shanti Saran Dublish. It was further averred that the provisions of the Act of 1988 are
not applicable and the family settlement dated 4.1.1972 was not the subject matter of this case,
because a separate case regarding that family settlement was pending in the Additional Civil
Judge(Senior Division)court no.4, Meerut in which the defendants have already stated that since the
village has been notified for consolidation operation as such, the court has no jurisdiction. With
these submissions it was prayed that the defendant's application be rejected.

13. The trial court by impugned order dated 30.8.2025 has concluded that since plaintiff has
asserted that his mother Sarla Dublish was the benami owner of the disputed property, as such, the
suit is barred by Section 4(1) of the Act of 1988. The trial court has rejected the contention of the
plaintiff that the provisions of Section 4(3) of the Act of 1988, were attracted in the facts and
circumstances of the case, because the disputed property was purchased from the funds of the
Hindu Undivided Family (HUF). It was further concluded by the trial court that the mother does
not fall within the category of coparcener in the HUF. With the above reasoning, the trial court has
allowed the defendants application 89-C under Order 7 Rule 11 CPC and has consequently rejected
the plaint, aggrieved against which, the plaintiff has filed the instant appeal under Section 96 CPC.

14. Shri Durgesh Kumar Singh, learned Senior Counsel for the plaintiff-appellant submitted
that at the stage of deciding Order 7 Rule 11 CPC application, only the plaint averments and the
documents submitted with the plaint are to be examined, the written statement or the documents
submitted by the defendants are not to be looked into, at this stage by the court. It was further
submitted that the case of the plaintiff was also not required to be examined on merits and whatever
the plaintiff has alleged, it is to be treated as true, for deciding the application. It was further
submitted that the plaintiff has clearly alleged that there was a Hindu Undivided Family(HUF)
consisting of himself and his father Ramesh Chand Dublish,who was also the Karta, who used to
keep and maintain the accounts of the income of the HUF. Learned counsel submitted that the
disputed property was purchased in the name of plaintiffs mother Sarla Dublish, from the funds
obtained by illegally selling the immovable property of the HUF and the income of the partnership
firm Messers Sunil Packaging Industries. It was further submitted that there was a fiduciary
relationship between the plaintiff and his mother as such, the disputed property was purchased in
the name of his mother, who was not having any independent income to purchase the disputed
property and thereafter, construct house on it. It was further submitted that the disputed property
fell in the exception enumerated in Section 4(3) of the Act of 1988, as such the suit was not barred
by Section 4(1) of the Act of 1988. With these submissions, it was prayed that the appeal be
1250 INDIAN LAW REPORTS ALLAHABAD SERIES
allowed and the original suit be restored on the file of the trial court with the direction to decide it
on merits.

15. Per contra, learned counsel for the defendant- respondents Shri Shivsagar Singh submitted
that the plaintiff has alleged the disputed property to be benami, in the name of his mother Sarla
Dublish, hence the provisions of Section 4(1) of the Act of 1988 were attracted in the facts and
circumstances of the case. It was further submitted that the trial court has not committed any error
in rejecting the plaint. With these submissions it was prayed that the appeal is meritless and be
dismissed at the admission stage.

I have heard the learned counsel of both the sides, perused the impugned order and the
documents submitted with the appeal.

16. Appeal is admitted.

17. The Apex Court in the case of Vinod Infra Developers Ltd. versus Mahaveer Lunia and
others 2025 INSC 772 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.

18. 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.

19. 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.

20. 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 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;
2 All. Sunil Kumar Dublish Vs. Ramesh Chandra Dublish & Ors.
1251

*** *** ***

(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)Whoever enters into any benami transaction shall be punishable with imprisonment
for a term which may extend to three years or with fine or with both.

(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of
1974), an offence under this section shall be non-cognizable and bailable.

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."
1252 INDIAN LAW REPORTS ALLAHABAD SERIES

21. 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:-

"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
2 All. Sunil Kumar Dublish Vs. Ramesh Chandra Dublish & Ors.
1253
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.

*** *** ***

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
1254 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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
2 All. Sunil Kumar Dublish Vs. Ramesh Chandra Dublish & Ors.
1255
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. "

22. The Apex Court in the case of Marcel Martins versus M.Printer and others (2012)5 SCC
342 , while discussing Section 4 of the Benami Transactions(Prohibition) Act,1988 held as under:-

"26. Section 4 of the Act, upon which heavy reliance was placed by Mr Chaudhary, may
be extracted in extenso:

"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."

A plain reading of the above will show that no suit, claim or action to enforce a right in
respect of any property held benami shall lie against the person in whose name the property is held
or against any other person at the instance of a person claiming to be the real owner of such
property.

27. It is common ground that although the sale deed by which the property was
transferred in the name of the appellant had been executed before the enactment of above
legislation yet the suit out of which this appeal arises had been filed after the year 1988. The
prohibition contained in Section 4 would, therefore, apply to such a suit, subject to the satisfaction
of other conditions stipulated therein. In other words unless the conditions contained in Sections
4(1) and (2) are held to be inapplicable by reason of anything contained in sub-section (3) thereof
the suit filed by the plaintiff-respondents herein would fall within the mischief of Section 4.

28. The critical question then is whether sub-section (3) of Section 4 saves a transaction
like the one with which we are concerned.
1256 INDIAN LAW REPORTS ALLAHABAD SERIES

29. Sub-section (3) to Section 4 extracted above is in two distinct parts. The first part
comprises clause (a) to Section 4(3) which deals with acquisitions by and in the name of a
coparcener in a Hindu Undivided Family for the benefit of such coparceners in the family. There is
no dispute that the said provision has no application in the instant case nor was any reliance
placed upon the same by the learned counsel for the respondent-plaintiffs.

30. What was invoked by Mr Naveen R. Nath, learned counsel appearing for the
respondents was Section 4(3)(b) of the Act which too is in two parts viz. one that deals with the
trustees and the beneficiaries thereof and the other that deals with the persons standing in a
fiduciary capacity and those towards whom he stands in such capacity. It was argued by Mr Nath
that the circumstances in which the purchase in question was made in the name of the appellant
assumes great importance while determining whether the appellant in whose name the property
was acquired stood in a fiduciary capacity towards the respondent-plaintiffs.

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

37. We may at this stage refer to a recent decision of this Court in CBSE v. Aditya
Bandopadhyay [(2011) 8 SCC 497] , wherein Raveendran, J. speaking for the Court in that case
explained the terms "fiduciary" and "fiduciary relationship" in the following words : (SCC pp. 52425, para 39)

"39. The term "fiduciary" refers to a person having a duty to act for the benefit of
another, showing good faith and candour, where such other person reposes trust and special
confidence in the person owing or discharging the duty. The term "fiduciary relationship" is used
to describe a situation or transaction where one person (beneficiary) places complete confidence in
another person (fiduciary) in regard to his affairs, business or transaction(s). The term also refers
to a person who holds a thing in trust for another (beneficiary). The fiduciary is expected to act in
confidence and for the benefit and advantage of the beneficiary, and use good faith and fairness in
dealing with the beneficiary or the things belonging to the beneficiary. If the beneficiary has
entrusted anything to the fiduciary, to hold the thing in trust or to execute certain acts in regard to
or with reference to the entrusted thing, the fiduciary has to act in confidence and is expected not to
disclose the thing or information to any third party."

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.

38. 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 respondent-plaintiffs.
2 All. Sunil Kumar Dublish Vs. Ramesh Chandra Dublish & Ors.
1257

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

44. 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. The view taken by the High Court to that effect
is affirmed though for slightly different reasons. "

23. The Apex Court in the case of Shaifali Gupta versus Vidya Devi Gupta and others 2025
SCC OnLine SC 1181 held as under:-

"23.