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2026 DAILYLAW 4368 (ALL)

Om Prakash Gupta v. Radhey Shyam Gupta

2026-01-13

Sandeep Jain

body2026
JUDGMENT : SANDEEP JAIN, J. 1. The instant first appeal under Section 96 of the CPC has been preferred by the plaintiff in O.S. no. 1034 of 2022 Omprakash Gupta versus Radheyshyam Gupta, against the impugned judgment and decree dated 3.3.2023 passed by the Court of Additional Civil Judge(Senior Division) Second, Gorakhpur, whereby the defendant's application 38-C under Order 7 Rule 11 CPC was allowed and consequently, the plaintiff's suit was dismissed being barred by Section 4 read with Section 2(9) of The Prohibition of Benami Property Transactions Act, 1988 (hereinafter referred to as the 'Act'). 2. Factual matrix is that the plaintiff – appellant filed O.S. no. 1034 of 2022 against his elder brother/defendant Radheyshyam Gupta with the averments that their father Krishnanath died about 45 years ago and at that time plaintiff was minor and since then the plaintiff and defendant are the members of a joint Hindu family, the defendant being its head and Karta. 3. It was further averred by the plaintiff that he and the defendant came to Gorakhpur in the year 1987 – 88 where they jointly started timber and sugarcane business and they gradually started accumulating money. The plaintiff averred that whatever he used to earn, he gave it to his elder brother/defendant, being the Karta of the joint family. He further averred that from their joint earning on 30.10.1995 in Indranagar, Gorakhpur five decimal land measuring 2180 ft² was purchased in the name of the defendant to which he didn't object, keeping in view the reputation and dignity of the family and also because the defendant was his elder brother and was also the head and the Karta of the joint Hindu family. He further averred that in the year 1993 he and the defendant after due consultation purchased two plots of land in Transport Nagar, Gorakhpur, out of which plot no. 56 was purchased in the name of defendant and plot no. 12 was purchased in his name. He further averred that he has constructed a three storey house on plot no. 12, in which till the year 2010, the families of plaintiff and defendant along with their mother resided together. He further averred that plot no. 56 has been bounded and pillars and walls have been constructed on it and merely the lantern remains to be cast. 4. 12, in which till the year 2010, the families of plaintiff and defendant along with their mother resided together. He further averred that plot no. 56 has been bounded and pillars and walls have been constructed on it and merely the lantern remains to be cast. 4. The plaintiff further averred that he and the defendant continued to do business jointly and in the year 2002 land was purchased by them in the name of their mother Sitabi Devi in Siddhath Enclave, Ramgarh Taal, Gorakhpur and thereafter, from the income of joint family, a three storey house was constructed on it, the house tax of which was being paid by their mother Sitabi Devi. He further averred that he and the defendant are still residing jointly in the above house. 5. The plaintiff further averred that thereafter, from the joint income of the family, on the plot purchased in Indranagar, Gorakhpur in the year 1995, on the ground floor a hall was constructed in which the plaintiff's son is running the shop in the name and style of Jai Maa Durga Supermarket and on its upper floor, four persons have been inducted as tenants and in the basement, half portion has been allotted to the parking of vehicles and another half portion has been rented to Sidhi Plywood, whose proprietor is Baijnath Gupta and on the first floor, Shriram Transport Company, a coaching centre and security company are functioning. 6. He further averred that his son Shubham took contribution of Rs. 8 lakhs from his elder brother Ajeet Kumar Gupta for running the Jai Maa Durga Supermarket and further, the plaintiff and the defendant jointly took a loan of Rs. 20 lakhs from the Union Bank of India in the year 2021 for starting a business, from which, it was also proved that the plaintiff and defendant are having a joint family. He further averred that he and the defendant from the joint income of the family purchased plot no.C-129 in the name of defendants son Vinod Kumar Gupta as benami, in BuddhVihar commercial scheme, Gorakhpur whereas this property belongs to joint Hindu family. 7. The plaintiff further averred that the business of plaintiff and defendant is still joint and at present they are owners of 13 trucks, out of which 8 trucks belong to defendant and 5 trucks belong to the plaintiff. 7. The plaintiff further averred that the business of plaintiff and defendant is still joint and at present they are owners of 13 trucks, out of which 8 trucks belong to defendant and 5 trucks belong to the plaintiff. He further averred that the plaintiff and defendant are still residing jointly and due to differences in opinion from 1.4.2022, they have separated their kitchen, but the business is still joint. He further averred that the trucks of the defendant are in the name of defendants wife Somari Devi and defendant's elder son Vinod Kumar Gupta whereas, trucks of the plaintiff are jointly in the name of plaintiff and his wife Girja Devi, but still the earning of all the trucks is kept by his elder brother/defendant. He further averred that the defendant has established a firm in the name and style of Nigam Traders for doing joint business in which, the income of all the trucks is accounted for. 8. The plaintiff further averred that since quite some time the intention of the defendant has turned malafide who was not giving full account of the income of the joint family and their sons have also become major. He further averred that the defendant has got seven children, out of which five daughters and a son have been married whereas, the plaintiff has got two sons and two daughters out of which only one daughter has been married and his three children are still to be married. He further averred that due to the tension prevailing in the family he requested the defendant to partition his half share in the property but when the defendant refused, he was compelled to file the instant suit. 9. The plaintiff claimed the following reliefs against the defendant:- (A) By decree granted in favour of the plaintiff against the defendant, in the plaint schedule property, his 1/2 share be declared and partitioned. (B) By decree of permanent injunction granted in favour of the plaintiff against the defendant, the defendant be restrained from interfering in the peaceful possession of the plaint schedule property till partition is effected and the defendant be further restrained from creating any hindrance in the residence of the family members of the plaintiff and in his business. 10. (B) By decree of permanent injunction granted in favour of the plaintiff against the defendant, the defendant be restrained from interfering in the peaceful possession of the plaint schedule property till partition is effected and the defendant be further restrained from creating any hindrance in the residence of the family members of the plaintiff and in his business. 10. During the pendency of the suit, the defendant moved an application 38-C under Order 7 Rule 11 CPC with the averments that the plaint schedule properties are individually in the name of plaintiff and defendant but the plaintiff has averred the disputed properties to be benami property of a joint Hindu family and was claiming partition on the basis of his individual share in that property, which was barred by the provisions of the Prohibition of Benami Property Transactions Act,1988 as such, the plaintiff's suit was barred by law and was liable to be rejected. 11. The above application of the defendant was opposed by the plaintiff on the ground that the application was not legally maintainable. It was further averred by the plaintiff that whether the disputed property was not purchased from the joint earning of plaintiff and defendant, can only be decided at the trial. It was further submitted that in the year 2002 one of the disputed property was purchased in the name of their mother Sitabi Devi, who was a housewife, who had no independent source of income, and at that time the plaintiff, defendant and their mother were living together in a joint family, and the defendant was the Karta of the joint family. It was further submitted that plot no.C-127 was purchased by the plaintiff by making payment in instalments from his bank account, which also proves that the business of plaintiff and defendant was joint. It was further submitted that the trucks in the name of plaintiffs wife were also operated from the defendant's firm, which also proves that the business of plaintiff and defendant was joint. It was further submitted that the disputed property does not attract the provisions of the Act of 1988 and the question raised by the defendant involves appreciation of fact and evidence which cannot be examined at the threshold, as such, the application was not legally maintainable. 12. It was further submitted that the disputed property does not attract the provisions of the Act of 1988 and the question raised by the defendant involves appreciation of fact and evidence which cannot be examined at the threshold, as such, the application was not legally maintainable. 12. The trial court has concluded that the plaintiff has averred that the disputed properties were purchased from the joint earning of the plaintiff and defendant but in support of the above contention, no document was produced by the plaintiff. The trial court has noted that if any property was purchased by the Karta of the Hindu undivided family for the benefit of the members of the family and its consideration was provided from the funds of the joint family, then it does not attract the provisions of the Act of 1988. The trial court has concluded that the plaintiff has not averred that the property purchased by the defendant was from the funds of the joint family. It was further concluded that since the disputed property was purchased in the name of the defendant and other persons as such, the suit was barred by Section 4 read with Section 2(9) of the Act of 1988, and has accordingly allowed the defendants application 38-C and consequently, dismissed the plaintiffs suit being barred under the above provisions of the Act of 1988, aggrieved against which, the plaintiff has filed the instant appeal under section 96 of the CPC. 13. Learned Senior counsel for the plaintiff -appellant Sri Pramod Kumar Jain submitted that at the stage of deciding application under Order 7 Rule 11 CPC, the court has not to examine the written statement and the evidence submitted by the defendant, and only the plaint averments and the documents filed by the plaintiff are to be considered. It was further submitted that from the plaint averments it is apparent that the plaintiff and defendant are real brothers, who had a joint business, and from the earning of the joint business, several immovable properties were purchased by the plaintiff, defendant and their family members, including their mother Sitabi Devi, in their individual names, whereas in fact, all the above property was purchased from the funds of the joint Hindu family, which was prima- facie proved from the documents submitted with the plaint. It was further submitted that at this stage, the plaint averments are to be presumed true and if any disputed question of fact arises, then the plaint cannot be rejected at the threshold. Learned counsel further submitted that prima-facie there was sufficient evidence on record to prove that the business of the plaintiff and defendant was joint, who were residing jointly, and from the business of the joint family, several immovable properties were purchased in the individual name of its members as such, the trial court should not have rejected the plaint under Order 7 Rule 11 CPC. It was further submitted that since the disputed property was the property of joint Hindu family, the provisions of the Prohibition of Benami Property Transactions Act,1988 were not attracted in the facts and circumstances of the case but the trial court has held otherwise. Learned counsel in support of his above contention has relied upon the case law of Shaifali Gupta vs. Vidya Devi Gupta and others , 2025 SCC OnLine SC 1181 . With these submissions it was prayed that the appeal be allowed and the matter be remanded to the trial court for deciding the suit on merits. 14. Per contra, learned counsel for the defendant respondent submitted that the disputed property is in the name of defendant but the plaintiff is alleging that the defendant is a benami holder as such, the plea of the plaintiff was barred under the provisions of the Act of 1988, hence, the trial court has not erred in allowing the defendants application under Order 7 Rule 11 CPC and consequently, dismissing the plaintiffs suit which does not warrant any interference from this Court in exercise of its appellate jurisdiction. With these submissions, it was prayed that the appeal is meritless and be rejected. 15. I have heard the learned counsel of both the parties, perused the impugned order and the record of the lower court. 16. The Apex Court in the case of Vinod Infra Developers Ltd. 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. 17. 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. 18. It is apparent from the above law laid down by the Apex Court in the case of Vinod Infra developers Ltd. (supra) and Keshav Sood (supra) that at the time of deciding Order 7 Rule 11 CPC application, the court has to look into only the averments made in the plaint and the documents submitted by the plaintiff. The court has not to examine the written statement of the defendant or the documents submitted by it. Further, the court has also not to examine the plaintiffs case on merit to determine whether he is going to succeed or not? It is also apparent that if any triable issue arises out of the pleadings of the plaintiff, then the plaint cannot be summarily rejected. 19. For appreciating the controversy in correct perspective, it will be appropriate to examine the relevant provisions of The Prohibition of Benami Property Transactions Act,1988 . Section 2(8), 2(9), 3, 4 of the Act reads as under:- “ 2. 19. For appreciating the controversy in correct perspective, it will be appropriate to examine the relevant provisions of The Prohibition of Benami Property Transactions Act,1988 . Section 2(8), 2(9), 3, 4 of the Act reads as under:- “ 2. Definitions .-In this Act, unless the context otherwise, requires,— (8) “benami property” means any property which is the subject matter of a benami transaction and also includes the proceeds from such property; (9) “benami transaction” means,— (A) a transaction or an arrangement— (a) where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by, another person; (b) the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration, except when the property is held by— (i) a Karta, or a member of a Hindu undivided family, as the case may be, and the property is held for his benefit or benefit of other members in the family and the consideration for such property has been provided or paid out of the known sources of the Hindu undivided family; (ii) a person standing in a fiduciary capacity for the benefit of another person towards whom he stands in such capacity and includes a trustee, executor, partner, director of a company, a depository or a participant as an agent of a depository under the Depositories Act, 1996 (22 of 1996) and any other person as may be notified by the Central Government for this purpose; (iii) any person being an individual in the name of his spouse or in the name of any child of such individual and the consideration for such property has been provided or paid out of the known sources of the individual; (iv) any person in the name of his brother or sister or lineal ascendant or descendant, where the names of brother or sister or lineal ascendant or descendant and the individual appear as joint-owners in any document, and the consideration for such property has been provided or paid out of the known sources of the individual; (B) a transaction or an arrangement in respect of a property carried out or made in a fictitious name; (C) a transaction or an arrangement in respect of a property where the owner of the property is not aware of, or, denies knowledge of, such ownership; (D) a transaction or an arrangement in respect of a property where the person providing the consideration is not traceable or is fictitious; Explanation.—For the removal of doubts, it is hereby declared that benami transaction shall not include any transaction involving of a property where the owner of the property is not aware of, or, denies knowledge of, such ownership; (D) a transaction or an arrangement in respect of a property where the person providing the consideration is not traceable or is fictitious; Explanation.—For the removal of doubts, it is hereby declared that benami transaction shall not include any transaction involving the allowing of possession of any property to be taken or retained in part performance of a contract referred to in section 53A of the Transfer of Property Act, 1882, if, under any law for the time being in force,— (i) consideration for such property has been provided by the person to whom possession of property has been allowed but the person who has granted possession thereof continues to hold ownership of such property; (ii) stamp duty on such transaction or arrangement has been paid; and (iii) the contract has been registered 3. Prohibition of benami transactions. (1) No person shall enter into any benami transaction. (2)******** (3) ******** 4. Prohibition of the right to recover property held benami. (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. 20. The The Apex Court in the case of Pushpalata 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. 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; (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. The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless, the source from where the purchase money came and the motive why the property was purchased benami are by far the most important tests for determining whether the sale standing in the name of one person, is in reality for the benefit of another. We would examine the present transaction on the touchstone of the above two indicia. *** *** *** 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. 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-à-vis the plaintiffs-respondents. 24. The first and foremost of the circumstance relevant to the question at hand is the fact that the property in question was tenanted by Smt. Stella Martins-mother of the parties before us. It is common ground that at the time of her demise she had not left behind any Will nor is there any other material to suggest that she intended that the tenancy right held by her in the suit property should be transferred to the appellant to the exclusion of her husband, C.F. Martins or her daughters, respondents in this appeal, or both. In the ordinary course, upon the demise of the tenant, the tenancy rights should have as a matter of course devolved upon her legal heirs that would include the husband of the deceased and her children (parties to this appeal). Even so, the reason why the property was transferred in the name of the appellant was the fact that the Corporation desired such transfer to be made in the name of one individual rather than several individuals who may have succeeded to the tenancy rights. A specific averment to that effect was made by plaintiffs- respondents in para 7 of the plaint which was not disputed by the appellant in the written statement filed by him. 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-à-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-à-vis the said four persons. 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-à-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 Sub-section 3(b) of Section 4 . The suit filed by the respondents was not, therefore, barred by the Act as contended by the learned counsel for the appellant.” ****** * * 27. In the light of these factors, and the law declared by this court which has elaborated the circumstances under which a claim against a benami owner can be said to be proved, under Section 4 (3)(a) of the Act, the conclusions drawn by the trial court and first appellate court, are plainly erroneous, given the evidence on record. The High Court, in the opinion of this court, fell into error in not noticing the correct position in law. ***** * * 30. In the opinion of this court, the High Court fell into error, in ignoring that the circumstances of this case, where the first plaintiff had proved that the properties had been purchased, with his funds, and the sons were minors, with no source of income. The second defendant's position-throughout all the proceedings, was that the properties were that of the first plaintiff; in other words, he admitted to the suit averments. The plaintiff also proved that he had possession of the property, by adducing positive evidence of tenants, who paid rent to him. In these circumstances, the elements necessary to establish benami ownership within the meaning of Section 4 (3) (a) of the Act, in terms of the judgments in Binapani Paul and Valliammal (supra) have been satisfied by the first plaintiff.” 21. The Apex Court in the case of Shaifali Gupta (supra) held as under:- “23. Section 4 of the Benami Act bars the suit, claim or action in respect of a property held benami by person at the behest of the person claiming to be its true owner. It reads as under: “4(1). The Apex Court in the case of Shaifali Gupta (supra) held as under:- “23. Section 4 of the Benami Act bars the suit, claim or action in respect of a property held benami by person at the behest of the person claiming to be its true owner. It reads as under: “4(1). No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.” 24. The above provision bars an action in respect of ‘property held benami’. However, whether the property in respect of which the suit, claim or action has been brought about is a benami property or not, is the issue of prime consideration. 25. The plaint allegations all through describe the suit properties as the Joint Hindu Family properties and that they have been purchased either from the nucleus of the Joint Hindu Family property or the income derived from the joint family business. The properties are not described as benami in the name of any member of the family. Therefore, from the plaint reading, the suit properties cannot ex-facie be held to be benami properties in respect whereof the suit may not be maintainable in view of Section 4 of the Benami Act. 26. The Benami Act further defines ‘benami property’ and ‘benami transaction’ under Sections 2(8) and 2(9) of the said Act. Benami property is the property which is the subject matter of benami transaction whereas benami transaction is a property held by a person in respect whereof consideration has been provided by some other person but would not include certain categories of properties such as where a person is holding a property in a fiduciary capacity for the benefit of another person. 27. In such circumstances, whether a property is a benami, has to be considered not in the light of Section 4 of the Benami Act alone but also in connection with Sections 2 (8) and 2 (9) of the said Act i.e. whether the property if benami falls in the exception. It is only where the property is benami and does not fall within the exception contained in Sub- Section (9) of Section 2 that a suit may be said to be barred. It is only where the property is benami and does not fall within the exception contained in Sub- Section (9) of Section 2 that a suit may be said to be barred. However, the issue whether the property is benami and is not covered by the exception, is again an issue to be decided on the basis of evidence and not simply on mere averments contained in the plaint. The defendants have to adduce evidence to prove the property to be benami. 28. In Pawan Kumar v. Babu Lal (2019) 4 SCC 367 , a similar issue arose before this Court in a matter concerning rejection of plaint under Order 7 Rule 11 (d) CPC. This Court held that for rejecting a plaint, the test is whether from the statement made in the plaint it appears without doubt or dispute that the suit is barred by any statutory provision. 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 7 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 7 Rule 11 CPC on the above score.” 22. From the above law laid down by the Apex Court in the above mentioned cases, dealing with the Prohibition of Benami Property Transactions Act,1988 before its amendment in the year 2016, and after its amendment, it is apparent that where it is alleged that the suit properties are joint Hindu family property and they have been purchased either from the nucleus of the joint Hindu family property or the income derived from the joint family business and the relief claimed in the suit is purely in respect of the said property, then such suit does not stand prohibited by the Benami Act. It is further apparent that if the disputed benami property falls within the exception contained in Section 2(9) of the above Act then the suit is not barred under Section 4 of the above Act. It is further apparent that if the disputed benami property falls within the exception contained in Section 2(9) of the above Act then the suit is not barred under Section 4 of the above Act. It is further apparent that whether the disputed 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 and the defendant have to adduce evidence to prove the property to be benami. 23. The Apex Court in the case of Pawan Kumar vs. Babulal Since Deceased through LRs. & Ors. (2019) 4 SCC 367 has held that the plea of benami cannot be decided at the stage when the application under Order 7 Rule 11 CPC is taken up for consideration because the matter required fuller and final consideration after the evidence was led by the parties. It was held that 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 7 Rule 11 CPC. 24. It is apparent that the plaintiff has averred in the plaint that the immovable property sought to be partitioned, which has been described in the schedule of the plaint, was purchased by the plaintiff and defendant from the funds of the joint Hindu family. It has further been averred by the plaintiff that the business of the plaintiff and defendant was joint, they were also residing jointly along with their mother Sitabi Devi, who was a housewife, who was not having any independent source of income, an immovable property was also purchased in her name from the funds and income of the joint Hindu family. It has also been averred by the plaintiff that other immovable property and movable property in the form of trucks have also been purchased in the name of family members of plaintiff and defendant from the income of the joint Hindu family. It has also been averred by the plaintiff that other immovable property and movable property in the form of trucks have also been purchased in the name of family members of plaintiff and defendant from the income of the joint Hindu family. In documentary proof before the trial court the plaintiff has filed the sale deeds and lease deeds of the immovable property mentioned in the plaint which disclose that the property is in the individual name of plaintiff, defendant, plaintiffs mother Sitabi Devi and defendant's son Vinod Kumar Gupta. 25. The plaintiff has also filed in the trial court letter issued by the Union Bank of India, branch Taramandal, Gorakhpur, which discloses that there is a joint loan account no. 591406580000001 in the name of plaintiff and defendant in which an amount of Rs. 20 lakhs was disbursed on 8.10.2021, from which an amount of Rs. 18 lakhs was credited to account no. 591401010050560 in the name of Jai Maa Durga supermarket and 2 lakhs was credited to plaintiffs account no. 591402010001643. 26. In the instant appeal by order dated 31.3.2023 the parties were directed to file their respective affidavits and in compliance of the above order of this Court, the plaintiff appellant has filed the photo copy of certificate issued by Messers Nigam Traders, Gorakhpur dated 26.7.2019 which prima-facie discloses that 4 trucks belonging to the plaintiff numbering UP-53AT-4159, UP-53BT-7619, UP-53DT- 6179 and UP-53ET-0739 were running under the above firm of the defendant from 14.9.2002. The appellant has also filed a supplementary memorandum of entry dated 14.9.2018 issued by the Union Bank of India, Taramandal branch, Gorakhpur which discloses that a credit facility of Rs, 125 lakhs was extended by the above bank to the defendant and plaintiffs wife Girja Devi jointly, for which, the defendant's son Vinod Kumar Gupta has stood guarantor being the owner of plot no. C-127 BuddhaVihar, commercial scheme, Taramandal, Gorakhpur. The plaintiff appellant has also filed a copy of the bank statement of cash credit account no. 591406520000106 jointly in the name of defendant Radheyshyam Gupta and plaintiff Omprakash Gupta, with Union Bank of India, Taramandal Branch Gorakhpur, which discloses that the account was opened on 28.3.2014. C-127 BuddhaVihar, commercial scheme, Taramandal, Gorakhpur. The plaintiff appellant has also filed a copy of the bank statement of cash credit account no. 591406520000106 jointly in the name of defendant Radheyshyam Gupta and plaintiff Omprakash Gupta, with Union Bank of India, Taramandal Branch Gorakhpur, which discloses that the account was opened on 28.3.2014. The appellant has also filed a photocopy of no objection certificate granted by the defendant on affidavit on 31.7.2021 for enabling the plaintiff's son Shubham Gupta to do his business from the defendant's house No. 215-B, Indranagar, Gorakhpur. 27. All the above mentioned documentary evidence prima-facie prove that the business of plaintiff and defendant was joint, in which their family members were also involved, who were also having joint bank account. In view of the above evidence on record, there was considerable merit in the submission of the plaintiff that the plaint schedule properties were purchased from the nucleus and income of the joint Hindu undivided family of the plaintiff and defendant. It is further apparent that whether the disputed property was benami and was not covered by the exception, was again an issue to be decided on the basis of evidence and not simply on mere averments contained in the plaint and the defendant has to adduce evidence to prove the property to be benami, as such, prima-facie the trial court could not have rejected the plaint at the threshold under Order 7 Rule 11 CPC. It is further apparent that since, the disputed property was alleged to be property of the joint Hindu undivided family, as such, under Section 2(9) of the Act of 1988, it fell within the exception carved out, hence it was not a benami property, but the trial court has held otherwise. In view of this, since the disputed plaint properties were falling in the exception contained in Section 2(9) of the Act of 1988, the plaintiff 's suit was also not barred under Section 4 of the Act, and the trial court has certainly erred in dismissing the plaintiff 's suit on this ground. It is apparent that the impugned order passed by the trial Court is perverse, which is legally unsustainable and is liable to be set aside. Accordingly, for the reasons disclosed above, this appeal has got merit and is liable to be allowed. 28. Accordingly, the instant first appeal stands allowed with costs. It is apparent that the impugned order passed by the trial Court is perverse, which is legally unsustainable and is liable to be set aside. Accordingly, for the reasons disclosed above, this appeal has got merit and is liable to be allowed. 28. Accordingly, the instant first appeal stands allowed with costs. Consequently, the impugned judgment and decree of the trial court dated 3.3.2023 in O.S. no.1034 of 2022 is set aside. The defendant's application 38-C under Order 7 Rule 11 CPC stands dismissed. The plaintiffs original suit stands restored to its original number. The decree be prepared accordingly. 29. The trial court is directed to decide the original suit preferably within a period of one year from the date a certified copy of this order is produced before it, without affording unnecessary adjournments to either of the parties, in accordance with law, on merits. 30. It is further made clear that the trial court is not bound by the observations made by this Court in this order and is free to form its opinion, in accordance with law, on the basis of pleadings of the parties and evidence adduced by them during trial. 31. It is apparent that this Court vide order dated 31.3.2023 passed in the instant appeal, had directed that no third party right shall be created over the property in question. In view of this, both the parties are restrained from selling, alienating, transferring or creating third party rights in the disputed property, till the disposal of the suit by the trial court on merits. 32. Office is directed to send back, the original record of the trial court, forthwith.