2025 INSC 739 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

EXTRAORDINARY APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO. 4673 OF 2023

SMT. SHAIFALI GUPTA …PETITIONER (S)

VERSUS

SMT. VIDYA DEVI GUPTA & ORS. …RESPONDENT (S)

WITH

SPECIAL LEAVE PETITION (CIVIL) NO.4674 OF 2023

DEEPAK LALCHANDANI …PETITIONER(S)

VERSUS

SMT. VIDYA DEVI GUPTA & ORS. …RESPONDENT(S)

J U D G M E N T

PANKAJ MITHAL, J.

1. These two special leave petitions have been preferred, one

by the contesting defendant No.2 to the suit and the other

by one of the subsequent purchasers (defendant No.5) of

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some of the suit properties against the rejection of an

application under Order VII Rule 11 of Code of Civil

Procedure

1 by the court of first instance as well as the High

Court in revision.

2. Special Leave Petition (C) No.4673/2023

2 preferred by the

main contesting defendant to the suit is taken up as the

lead case, therefore, the facts as stated therein and the

parties as described therein shall be narrated and taken

as a base.

3. The two plaintiffs i.e. the mother and the son being Smt.

Vidya Devi Gupta (plaintiff No.1) and Shri Sudeep Gupta

(plaintiff No.2) instituted a Regular Suit No.630A/2018

against the other son of plaintiff No.1 i.e. Sandeep Gupta

(defendant No.1) and his wife Smt. Shaifali Gupta

(defendant No.2). In the said suit, the two sons of the

defendant No.1 namely Siddharth Gupta and Shantanu

Gupta were arrayed as defendant Nos.3 and 4. The wife of

the plaintiff No.2, Smt. Shalini Gupta and his son Sankalp

Gupta were added as defendant Nos.8 and 9. In addition

to the above family members, Deepak Lalchandani and

1

In short ‘CPC’

2

Smt. Shaifali Gupta vs. Smt. Vidya Devi Gupta & Ors.

3

Surya Prakash Mishra were also arrayed as defendant

Nos.5 and 6 being the subsequent purchasers of some of

the properties mentioned in the plaint.

4. The aforesaid suit is for partition, possession, declaration,

mandatory & permanent injunction and for accounting

with regard to the properties alleged to be the family

properties purchased out of the funds of the joint family or

derived from the income from the joint family business. In

other words, the suit is basically between the family

members. The mother and one son on one side and the

other son and his family on the other side. The children of

both the sons are non-active or passive parties.

5. According to the plaint allegations, the father of the two

sons referred to above i.e. Shanti Prakash Gupta was into

a tailoring business. Gradually his tailoring business came

to an end. He died in the year 1977. He had no immovable

or movable property at the time of his death.

6. In the year 1982, the two sons jointly started a tailoring

business from a rented shop in New Market, TT Nagar,

Bhopal, in the name of ‘Himalaya Tailors’. This business

was started by them by selling some jewellery of their

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mother i.e. plaintiff No.1. The said business was carried on

by both of them together but the younger brother (plaintiff

No.2) was appointed and declared to be the sole proprietor.

7. The family, sometime in 1990, purchased a house in

Harshwardhan Nagar and they started residing in it. They

lived there jointly at least up to the year 2011. It appears

that the elder son (defendant No.1) along with his family

started residing in a house in Shalimar Park which was

jointly purchased by the family from the income of the joint

family business in the year 2014.

8. Side by side the tailoring business, the elder son

(defendant No.1) had started a fabric business in the name

of Hemi Textiles in the year 1986.

9. A shop was purchased by the family in the New Market, TT

Nagar, Bhopal, from the combined income of the family

business of Himalaya Tailors and the Hemi Textiles.

10. It is averred in the plaint that from the original joint family

business of ‘Himalaya Tailors’, both the parties purchased

several properties in the name of different persons of the

family. All the properties were purchased out of the joint

family funds or the income derived from the joint family

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business. It was categorically asserted that the properties

have been purchased in the name of the plaintiffs and the

defendants or the members of the family and were the joint

properties of the Joint Hindu Family. The said properties

were described in paragraph 6 of the plaint. Some of the

properties mentioned in paragraph 6 of the plaint at Serial

Nos.19, 20 and 21 were sold by Shaifali Gupta (defendant

No.2), wife of the elder son, in favour of defendant Nos.5

and 6 and as such it has been alleged that the said sales

are void.

11. It is on the basis of the above averments that the suit for

declaration, partition, injunction in respect of the suit

properties was instituted by the mother (plaintiff No.1) and

the younger son (plaintiff No.2). In the said suit, the

subsequent purchasers defendant Nos.5 and 6 moved an

application purported to be under Order VII Rule 11 CPC

contending that the suit is not maintainable in view of the

provisions of Benami Transaction (Prohibition) Act, 1988

3.

It is made clear that no such application was filed by the

main contesting defendants to the suit i.e. by the elder

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Hereinafter referred to as ‘the Benami Act’

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brother or his family members. They never alleged that the

suit is not maintainable or is barred by any provision of

the statute.

12. The above application was contested by the plaintiffs and

a reply was filed stating that the Benami Act (as amended

in 2016) came into force w.e.f. 11.01.2016 and all the

family properties were purchased prior to the above date

and as such the suit would not be hit by the said Act. The

suit is not for adjudication of any matter in relation to

benami transaction as envisaged in the Benami Act rather

it is a suit essentially under the Hindu Succession Act,

1956

4. The suit properties are Hindu Joint Family

properties and the relief claimed in the suit is purely in

respect of the said properties and as such it does not stand

prohibited by the Benami Act. The said Act nowhere bars

the institution of a suit for a partition, declaration or

injunction in connection with the properties belonging to

the Hindu Joint Family. Moreover, the objections raised

by defendant Nos.5 and 6 to the maintainability of the suit

are mixed questions of fact and law and are to be

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Hereinafter referred to as ‘the Act’

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considered only on the basis of the pleadings and the

evidence of the parties and not at the threshold on the

basis of the plaint allegations alone.

13. The court of first instance by the order impugned dated

25.02.2019 after elaborately discussing the plaint

averments, came to the conclusion that the issue whether

suit properties are the Joint Hindu Family properties or

are the properties of the individual family members and

whether they are liable for partition, is a question

dependent upon facts to be adjudicated upon after the

parties have adduced evidence. On the averments made in

the plaint, the suit is not barred by any law and in view of

the judgment in the case of Popat and Kotecha Property

vs. State Bank of India Staff Association

5, the

provisions of Order VII Rule 11 CPC are not attracted.

Accordingly, application under Order VII Rule 11 CPC was

rejected.

14. Aggrieved by the aforesaid decision, the subsequent

purchasers i.e. defendant Nos.5 and 6 filed Civil Revision

No.324/2019. The said revision has been dismissed by the

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(2005) 7 SCC 510

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impugned judgment and order dated 26.09.2022 holding

that the trial court has rightly held that the issue as to

whether the properties belong to the Joint Hindu Family

properties or they have been purchased from the joint

hindu family funds is to be proved by the parties on the

basis of evidence. The plaint of the suit is not liable to be

rejected as from the averments made therein it cannot be

said that it is barred by any statutory provision of law.

15. The decision of the court of first instance rejecting the

application under Order VII Rule 11 CPC was not

challenged by the main contesting parties i.e. the elder

brother and his wife (defendant Nos.1 and 2) or their

children.

16. After having failed in the two courts below in getting the

plaint rejected in exercise of powers under Order VII Rule

11 CPC, Deepaklal Chandani (defendant No.5) alone has

preferred Special Leave Petition (C) No.4674/2023

whereas Special Leave Petition (C) No.4673/2023 has been

preferred by the Shaifali Gupta (defendant No.2).

17. At the very outset, it is pertinent to mention that Shaifali

Gupta (defendant No.2) had neither moved application

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under Order VII Rule 11 CPC for the rejection of the plaint

nor she has filed any revision challenging the order of the

court of first instance rejecting such an application moved

by the defendant Nos.5 and 6. Therefore, she is not a

person aggrieved by the rejection of the application under

Order VII Rule 11 and cannot be permitted to assail the

impugned orders. She has acquiesced to the jurisdiction of

the trial court and has by her conduct accepted the order

of the court of first instance and chosen to contest the

suits on merits.

18. The defendant Nos.5 and 6 are only subsequent

purchasers of some of the properties. They cannot claim

any knowledge of the nature of the property in the hands

of the original owners. They cannot have any personal

knowledge as to if the said properties in the hands of the

original owners are Joint Hindu Family property or are

their individual properties or they have been acquired

benami by the family members or are the properties

possessed by the female hindu in absolute sense. In such

a situation, they are not the right person to move

application under Order VII Rule 11 CPC for the rejection

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of the plaint as allegedly barred by Section 4 of the Benami

Act.

19. We have heard Shri Navin Pahwa, learned senior counsel

for the petitioner(s) and Shri Kavin Gulati, learned senior

counsel for the respondents.

20. The submission of learned counsel for the defendants is

twofold. First, the suit is barred by Section 4 read with

Section 14 of the Act, as some of the suit properties are in

the exclusive name of the defendant No.2 and as such

would be treated in entirety as her personal properties and

would not be amenable to partition. Secondly, the suit is

hit by Section 4 of the Act. Lastly, since the properties

stand exclusively in the name of different persons, no party

can claim joint ownership or right of partition in respect

thereof.

21. In response to the above argument, Shri Kavin Gulati,

learned senior counsel for the plaintiffs, submitted that the

bar of Section 4 read with 14 of the Act, was never raised

by the defendants in their application under Order VII Rule

11 CPC and the said point was not argued on their behalf

either before the court of first instance or before the High

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Court. Therefore, they are not entitled to raise the said plea

for the first time before this Court. Moreover, the above

provisions do not bar a suit of such a nature in respect of

joint family property in any manner. Secondly, the suit is

also not barred by Section 4 of the Act, as according to the

plaint averments, all the properties were purchased from

the nucleus of the joint family, may be in the exclusive

name of some of the family members . They fall in the

exempted category as per Section 2(9)(A) Exception (ii) of

the Benami Act.

22. He further submitted that upon the simple reading of the

plaint allegations, the suit is not barred by any provision

of law and, therefore, Order VII Rule 11 (d) does not stand

attracted so as to reject the plaint. The defence or the

issues raised by the defendants are factual in nature which

are dependent upon the facts to be proved inter se the

parties on the basis of the evidence to be adduced.

23. Section 4 of the Benami Act bars the suit, claim or action

in respect of a property held benami by person at the

behest of the person claiming to be its true owner. It reads

as under:

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“4(1). No suit, claim or action to enforce any

right in respect of any property held benami

against the person in whose name the

property is held or against any other person

shall lie by or on behalf of a person claiming

to be the real owner of such property.”

24. The above provision bars an action in respect of ‘property

held benami’. However, whether the property in respect of

which the suit, claim or action has been brought about is

a benami property or not, is the issue of prime

consideration.

25. The plaint allegations all through describe the suit

properties as the Joint Hindu Family properties and that

they have been purchased either from the nucleus of the

Joint Hindu Family property or the income derived from

the joint family business. The properties are not described

as benami in the name of any member of the family.

Therefore, from the plaint reading, the suit properties

cannot ex-facie be held to be benami properties in respect

whereof the suit may not be maintainable in view of

Section 4 of the Benami Act.

26. The Benami Act further defines ‘benami property’ and

‘benami transaction’ under Sections 2 (8) and 2 (9) of the

said Act. Benami property is the property which is the

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subject matter of benami transaction whereas benami

transaction is a property held by a person in respect

whereof consideration has been provided by some other

person but would not include certain categories of

properties such as where a person is holding a property in

a fiduciary capacity for the benefit of another person.

27. In such circumstances, whether a property is a benami,

has to be considered not in the light of Section 4 of the

Benami Act alone but also in connection with Sections 2

(8) and 2 (9) of the said Act i.e. whether the property if

benami falls in the exception. It is only where the property

is benami and does not fall within the exception contained

in Sub-Section (9) of Section 2 that a suit may be said to

be barred. However, the issue whether the property is

benami and is not covered by the exception, is again an

issue to be decided on the basis of evidence and not simply

on mere averments contained in the plaint. The defendants

have to adduce evidence to prove the property to be

benami.

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28. In Pawan Kumar vs. Babu Lal

6, a similar issue arose

before this Court in a matter concerning rejection of plaint

under Order VII Rule 11 (d) CPC. This Court held that for

rejecting a plaint, the test is whether from the statement

made in the plaint it appears without doubt or dispute that

the suit is barred by any statutory provision. Where a plea

is taken that the suit is saved by the exception to the

benami transaction, it becomes the disputed question of

fact which has to be adjudicated on the basis of the

evidence. Therefore, the plaint cannot be rejected at the

stage of consideration of application under Order VII Rule

11 CPC.

29. The ratio of the above case squarely applies to the facts of

the case at hand. Accordingly, in our opinion, the courts

below have not committed any error of law in rejecting the

application under Order VII Rule 11 CPC on the above

score.

30. As regard the contention that the plaint is also hit by

Section 14 of the Act, it is important to point out that no

such specific plea was taken by the defendants in the

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(2019) 4 SCC 367

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application under Order VII Rule 11 CPC. Such a plea was

never raised and argued before either of the courts below.

There is no finding by any court on the above aspect.

Therefore, it has rightly been submitted by the counsel for

the plaintiff that the defendants cannot be permitted to

raise such a plea for the first time in the Special Leave

Petition without there being any foundation to that effect.

31. More importantly, Section 14 of the Act simply provides

that the property possessed by a female Hindu shall be

held by her as a full owner. It does not bar or prohibit a

suit in respect of such a property. Therefore, in the

absence of any bar contained in the above provision, the

suit plaint is not liable to be rejected as barred by law.

32. The courts below have rejected the application filed by

defendant Nos.5 and 6 under Order VII Rule 11 CPC and

have refused to reject the plaint as barred by any statute.

It means that the parties are at liberty to contest the suit

on merits. They have right to get the necessary relevant

issues framed in the suit including that of suit being

barred by any provision of law and if any such issue is

framed, it will be open for the court to consider the same

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on merits after the parties have led evidence. In such a

situation, the defendants have not suffered any prejudice

and there is no miscarriage of justice so as to permit them

to avail the discretionary jurisdiction of this Court under

Article 136 of the Constitution of India.

33. Accordingly, we do not deem it necessary to entertain these

Special Leave Petitions and the same are dismissed.

.............……………………………….. J.

(PANKAJ MITHAL)

.............……………………………….. J.

(AHSANUDDIN AMANULLAH)

NEW DELHI;

MAY 20, 2025.