SMT. SHAIFALI GUPTAversusSMT. VIDYA DEVI GUPTA & ORS.

                  [2025] 7 S.C.R. 69 : 2025 INSC 739

                          Smt. Shaifali Gupta
                                  v.
                     Smt. Vidya Devi Gupta & Ors.
              (Special Leave Petition (Civil) No. 4673 of 2023)
                                 20 May 2025
           [Pankaj Mithal* and Ahsanuddin Amanullah, JJ.]


                            Issue for Consideration
       Issue arose as to the correctness of the order passed by the court
       of first instance as well as the High Court rejecting the application
       u/Ord.VII r.11 CPC; and whether the property in respect of which
       the suit, claim or action has been brought about is a benami
       property or not.

                                   Headnotes†
       Code of Civil Procedure, 1908 – Ord.VII r.11 – Benami
       Transaction (Prohibition) Act, 1988 – ss.2(8), 2(9), 4 – Rejection
       of plaint – Benami property – Suit for partition, possession,
       declaration, mandatory and permanent injunction and for
       accounting with regard to the properties alleged to be family
       properties, by the mother and younger son against the elder
       son and his family – Some of the properties were sold by the
       defendant no.2-wife of the elder son in favour of defendant
       nos.5 and 6-subsequent purchasers and as such the sales were
       alleged to be void – In the suit, the subsequent purchasers
       moved an application u/Ord.VII r.11 contending that the suit
       was not maintainable in view of the provisions of Benami
       Act – Court of first instance as well as High Court rejected the
       application – Challenge to, by defendant no.2 and subsequent
       purchasers:
       Held: Defendant no.2 neither moved application u/Ord.VII r.11
       nor filed any revision challenging the order of the court of first
       instance, thus, not a person aggrieved and cannot be permitted
       to assail the impugned orders – She acquiesced to the jurisdiction
       of the trial court and by her conduct accepted the order of the
       court of first instance and chosen to contest the suits on merits –
       Defendant nos.5 and 6 are only subsequent purchasers of some


* Author
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      of the properties and cannot claim any knowledge of the nature
      of the property in the hands of the original owners – They are not
      the right person to move application u/Ord.VII r.11 for the rejection
      of the plaint as allegedly barred by s.4 of the Benami Act – 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 – Properties are not
      described as benami in the name of any member of the family –
      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 s.4 – It is only where the property is
      benami and does not fall within the exception that a suit may be
      said to be barred – Issue whether the property is benami and is
      not covered by the exception, is to be decided on the basis of
      evidence and not on mere averments contained in the plaint –
      Defendants have to adduce evidence to prove the property to be
      benami – Courts below did not commit any error of law in rejecting
      the application u/Ord.VII r.11 – Plea that plaint is also hit by s.14
      of 1956 Act was never raised and argued before either of the
      courts below, thus the defendants cannot be permitted to raise
      such a plea for the first time in the Special Leave Petition – s.14
      does not bar or prohibit a suit in respect of such a property, thus,
      in the absence thereof, the suit plaint is not liable to be rejected
      as barred by law – Courts below rejected the application filed by
      the subsequent purchasers u/Ord. VII r.11 and have refused to
      reject the plaint as barred by any statute, meaning thereby the
      parties at liberty to contest the suit on merits – In view thereof, the
      defendants have not suffered any prejudice and no miscarriage of
      justice so as to permit them to avail the discretionary jurisdiction
      u/Art.136 – Constitution of India – Art.136 – Hindu Succession
      Act, 1956 – s.14. [Paras 17, 18, 25-32]

                                Case Law Cited
      Popat and Kotecha Property v. State Bank of India Staff Association
      [2005] Supp. 2 SCR 1030 : (2005) 7 SCC 510; Pawan Kumar v.
      Babu Lal [2019] 5 SCR 1141 : (2019) 4 SCC 367 – referred to.

                                  List of Acts
      Code of Civil Procedure, 1908; Benami Transaction (Prohibition)
      Act, 1988; Hindu Succession Act, 1956.
[2025] 7 S.C.R.                                                              71

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


                                List of Keywords
      Maintainability of suit; Benami transaction; Joint Hindu Family
      property; Acquiesced to jurisdiction of trial court; Benami property;
      Discretionary jurisdiction; Rejection of plaint; Subsequent
      purchasers; Acquiesced to the jurisdiction; Subsequent purchasers;
      Joint Hindu Family properties.

                               Case Arising From
      EXTRAORDINARY APPELLATE JURISDICTION: Special Leave
      Petition (Civil) No. 4673 of 2023
      From the Judgment and Order dated 26.09.2022 of the High Court of
      Madhya Pradesh Principal Seat at Jabalpur in CR No. 324 of 2019
      With
      Special Leave Petition (Civil) No. 4674 of 2023

                             Appearances for Parties
      Advs. for the Petitioner:
      Navin Pahwa, Sr. Adv., Rajul Shrivastav, Ms. Charu Ambwani,
      Mohit D. Ram, Anubhav Sharma.
      Advs. for the Respondents:
      Kavin Gulati, Apoorv Kurup, Navin Pahwa, Sr. Advs., Sudipto
      Sircar, Anuj Tyagi, Ms. Akshita Agarwal, Mohit D. Ram, Anubhav
      Sharma, Rajul Shrivastav, Ms. Charu Ambwani.

                      Judgment / Order of the Supreme Court

                                   Judgment

      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 some of the suit properties
      against the rejection of an application under Order VII Rule 11 of
      Code of Civil Procedure1 by the court of first instance as well as the
      High Court in revision.


1    In short ‘CPC’
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2.     Special Leave Petition (C) No.4673/20232 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 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 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.


2     Smt. Shaifali Gupta vs. Smt. Vidya Devi Gupta & Ors.
[2025] 7 S.C.R.                                                           73

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


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 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, 19883. It is made clear that
    no such application was filed by the main contesting defendants to
    the suit i.e. by the elder brother or his family members. They never
    alleged that the suit is not maintainable or is barred by any provision
    of the statute.


3    Hereinafter referred to as ‘the Benami Act’
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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, 19564. 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 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 Association5, 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 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


4     Hereinafter referred to as ‘the Act’
5     (2005) 7 SCC 510
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           Smt. Shaifali Gupta v. Smt. Vidya Devi Gupta & Ors.


     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 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 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
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      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 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:
           “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.
[2025] 7 S.C.R.                                                        77

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


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. 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 vs. Babu Lal6, 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.


6   (2019) 4 SCC 367
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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 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 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.

      Result of the case: Special Leave Petitions dismissed.



      †
          Headnotes prepared by: Nidhi Jain