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Per ARINDAM SINHA, J. –

1. Husband in the marriage is appellant. He filed suit in respect of property purchased by him in name of his wife. The spouses have fallen out. The suit is for declaration that the purchase is not hit by subsequent amendment w.e.f., 1st November, 2016 to Prohibition of Benami Property Transactions Act, 1988.

2. Mr. Ashutosh Pratap Singh, learned advocate appears on behalf of appellant and Mr. Saroj Giri, learned advocate for respondent. Having heard them it appears there was application dated 25th March, 2023 made by respondent (wife) under rule 11 in order VII, Code of Civil Procedure, 1908. Then came impugned judgment dated 24th January, 2025. The judgment says, the plaint seeking relief under section 34 in Specific Relief Act, 1963 stands rejected by invoking section 7 of Family Courts Act, 1984 and sections 3 and 4 in Prohibition of Benami Property Transactions Act, 1988.

3. It is not necessary for us to take a view on interpretation of section 3 in the Act of 1988 as it stood prior to 1st November, 2016. While Mr. Singh submits that the property belongs to his client, Mr. Giri submits, the purchase was made in name of his client, as for her benefit.

4. Mr. Singh has relied on clause (c) under sub-section (1) in section 7 of Family Courts Act, 1988. The clause is reproduced below.

“7 (1) (c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them”

In the suit husband is petitioner (plaintiff). The wife is respondent. Subject matter of the suit is property, which appellant says he purchased in name of respondent. Accordingly, he seeks declaration that the property is his. Respondent says the property was purchased for her benefit. Thus, the suit or proceedings between the parties, who are married, is in respect of property, which one of the parties is claiming to it be his and the other to be purchased for her benefit. The suit, in our considered view, is clearly one that comes within section 7 (1) (c) in the Act of 1988. Moreover the Family Court did acknowledge the position of law as would appear from a passage from official English translation of impugned judgement, reproduced below.

"In brief, the facts of the suit are that the plaintiff and defendant are husband-wife. They were married as per Hindu rites. The subject matter of the aforesaid suit, arose out of the marital relationship of the husband-wife and provisions of the Family Courts Act apply to both the parties."

5. As we have noticed, respondent had filed application questioning maintainability of the petition/suit. However, instead of framing issue of maintainability, the learned Judge framed one on the merits and proceeded to dismiss the suit. In doing so, the learned Judge held that vendor in the sale deeds had admitted receiving the consideration from respondent, whereafter the learned Judge said that the vendor had not been examined. Admission by a party can amount to proof for establishing a fact. In this case, impugned judgement was made ex parte against respondent. The vendor had not been examined. Appellant, who was petitioner/plaintiff was asserting that the transactions were Benami. In such circumstances, finding of admission by the vendor (not examined) to hold against appellant, who was urging to the contrary and having, had produced the documents from his custody, in our view was erroneous appreciation of the evidence before the Court. Another paragraph from aforesaid official English translation of impugned judgement is reproduced below.

"From the perusal of the file, it is evident that the defendant is absent, and due to her absence, the proceedings of the suit have been proceeded against her ex parte. The seller of the sale deed, Shri Kishan Pal Gupta, has admitted receiving the consideration for the property sold, amounting to Rs. 80,000/- from the defendant. Furthermore, the seller, Shri Kishan Gopal Gupta, has not been examined as witness in the instant case nor, has his statement been recorded. Furthermore, the plaintiff is not a witness in the sale deed of the disputed property. In the instant case, the plaintiff has filed affidavits of Som Prakash as PW-02, and Mohan Babu Agrawl as PW-03, but neither are witnesses in the sale deed of the disputed property, nor has any transaction for the consideration of the property sold taken place before these two witnesses. The present suit is civil in nature."

6. For reasons aforesaid impugned judgement reversed in appeal. The petition (suit) is remanded for trial afresh. Respondent has appeared and therefore will be entitled to contest in the hearing on remand. We request the Family Court to proceed with the adjudication expeditiously, without granting unnecessary adjournments.

7. We find in impugned judgment, reference to suit no. 150 of 2021 filed by appellant against respondent and pending in the Court of Civil Judge, Firozabad. Mr. Singh submits, the suit is for permanent injunction filed in his client’s capacity as tenant in the premises, to resist eviction by respondent wife. This fact and the consequences in law must also be decided by the Family Court. The Family Court has before it, the subsequent suit filed. Provisions in section 10 of the Code will not be applicable because the former suit is for protection against eviction while the latter is for declaration of title. Appellant has apparently put forward inconsistent claims and whether he can prosecute for relief on them, the Family Court will have to decide.

8. The appeal is allowed and disposed of.

Appeal allowed.

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