B.N.MAHAPATRA, J:

1. This Revision Petition under Section 115 of the Code of Civil Procedure, 1908 (for short, CPC) arises out of Civil Suit No. 351 of 2009 on the file of Learned Civil Judge (S.D.), Berhampur. In this Revision Petition challenge has been made by Defendant No. 1Petitioner to the correctness of the impugned Order Dated 23.04.2011 (Annexure-5) passed by the Civil Judge (Sr. Division), Berhampur rejecting two petitions separately filed under Order 7, Rule 11, CPC by Defendant Nos. 1 & 3 praying for rejection of the plaint.

2. Defendant No.1-Petitioners case is that Opp. Party No.1 being the Plaintiff has filed a suit for partition in the Court of Civil Judge (Sr. Division), Berhampur bearing C.S.No. 351 of 2009 against him & Opp. Party Nos. 2 & 3 claiming the suit property as ancestral property & joint property of the parties. On receipt of summons in the aforesaid Civil Suit, Defendant No. 1- Petitioner & Opp. Party Nos. 2 & 3 entered appearance & filed their written statement. The Defendant No. 1- Petitioner has filed an application under Order 7, Rule 11, CPC stating therein that the suit was not maintainable on the ground that the concept of ancestral property & joint family property is foreign to Mohammadan Law. In the said petition under Order 7, Rule 11, CPC It was stated that Defendant No.1-Petitioner is the exclusive owner in possession of the suit property more fully described in item Nos. 1 & 2 of plaint schedule & there being no joint family concept recognized under the principles of Mohammedan Law, no number of the family even if they reside jointly can claim any share in the property & any Mohammedan, who is the owner of the property, can dispose of his/her property to anyone during his/her life time & property would devolve into his/her legal heir only after his/her death. As per Mohammedan Law concept of legal heir is not available during life time of any person. Therefore, the Plaintiff-Opp. Party No.1 had no cause of action to file the suit during life time of the Petitioner & accordingly prayed for dismissal of the suit. The PlaintiffOpp. Party No.1 had filed his counter to the petition filed under Order 7, Rule 11, CPC reiterating the pleadings made in the plaint. After hearing both the parties, the Learned Civil Judge (Sr. Division), Berhampur rejected the petition made under Order 7, Rule 11 CPC filed by the Petitioner vide Order Dated 23.04.2011 (Annexure-5). Hence, the present civil revision petition.

3. Naushina Ali, Learned Counsel appearing on behalf of the Petitioner submitted that the Court below has failed to exercise the jurisdiction so vested in it & has exercised jurisdiction illegally & with material irregularity. Therefore, the impugned order under Annexure-5 is liable to be set aside & the suit is liable to be dismissed in view of Order 7, Rule 11, CPC as the plaint does not disclose any cause of action & the plaint is barred by law. The Lower Court without considering the case as per the principles of Mohammedan Law has passed the impugned order applying the concept of ancestral property & joint family properties as provided in Hindu Mitakshara Law.

4. It was submitted that the admitted case of Plaintiff-Opp. Party No.1 is that the property described in Item No. 1 of plaint schedule was purchased in the name of the present Petitioner by registered sale deed in the year 1977 for which the Plaintiff-Opp. Party No.1 has share in the said property. It was argued that whether the consideration money has been paid by her or somebody else on her behalf that cannot be raised in view of Benami Transaction (Prohibition) Act, 1988 (for short, Act, 1988) & the settled position of Mohammedan Law which does not recognize the concept of inheritance during the life time of any person. The Lower Court should have allowed the petition filed under Order 7, Rule 11, CPC, the plaint being hit by the principles of Mohammedan Law & the Act, 1988 & no cause of action arises for filing the suit for partition during the life time of the Petitioner. It is further submitted that the properties described under Item No.2 of the plaint schedule originally belonged to the mother of the Petitioner namely Rakhia Bibi who died leaving the Petitioner as her only legal heir. As per the principles of Mohammedan Law, the Petitioner became the exhaustive owner of the said suit property & her sons & daughters have absolutely no right, title, interest & possession over the properties of the Petitioner which she has inherited from her mother. Concluding her argument, it was submitted that the impugned order passed under Annexure-5 is not sustainable in law.

5. Ms. Iqbal Shabiya, Learned Counsel, appearing on behalf of Plaintiff-Opp. Party No.1 submitted that the impugned order under Annexure-5 is valid in law & needs no interference by this Court. It was submitted that the property under Item No.1 was purchased in the year 1977 from out of the contribution of the Plaintiff & Defendant No. 2, but the sale deed was registered in the name of Defendant No. 1Petitioner as a mark of respect. Defendant No.1-Petitioner is the mother of Opp. Party Nos. 2 & 3 & such fact was admitted by them in the deed of agreement dated 13.12.2005 executed by them, when all the parties entered into an agreement to sell a portion of item No.1 of plaint schedule property in favour of Smt. Kamini Maharana. Suit schedule Item No. II property stands recorded in the name of late Rakhia Bibi, who is the mother Defendant No.1-Petitioner. The mother of the Petitioner died in the year 1993 & thereafter the Plaintiff has got right over the property after her death. It was further submitted that since the plea of the Act, 1988 was not raised in the application filed by the Petitioner under Order 7, Rule 11, CPC the same cannot be raised for the first time in this revision petition.

6. On the rival contentions of the parties, the following question fall for consideration by this Court:

(i) Whether the plaint filed by the Plaintiff-Opp. Party No. 1 is hit by provisions of Order 7, Rule 11 (a) & (d) CPC which envisage that the plaint shall be rejected where (a) it does not disclose any cause of action & (d) where the suit appears from the statement in the plaint to be barred by law

(ii) Whether under the Mohammedan Law, the succession opens only after death of the owner & during life time of owner, his sons & daughters have no claim over the said properties

(iii) Whether there is any recognition or concept of joint family property under Mohammedan. Law

(iv) Whether in view of Section 4 of the Act, 1988, the claim of the Plaintiff-Opp. Party No.1 over the property under item No.1 in suit schedule is sustainable

(v) Whether the question of law which has not been raised before the lower Court in the petition filed under Order 7, Rule 11, CPC can be raised before the High Court in a revision petition

7. Since question Nos. (i), (ii), (iii) & (iv) are interrelated, they are dealt with together. Referring to the provisions of Order 7, Rule 11 (a) & (d) CPC & accepting the pleadings of Plaintiff-Opp. Party No.1 the Lower Court has held that in view of the averments made in the plaint, it cannot be said that the Plaintiff has got no right over the entire suit property & there is no cause of action for filing the suit. Therefore, the plaint cannot be rejected at the threshold. Accordingly, the Lower Court rejected the petition filed under Order 7, Rule 11, CPC.

8. Now it is necessary to know what statement has been made in the plaint claiming share of the properties described in Item Nos. 1 & 2 in the scheduled properties & whether the plaint discloses the cause of action for Plaintiff-Opp. Party No.1 to file the plaint. Plaintiff-Opp. Party No. 1s case is that to purchase the property under Item No.1 of the plaint, Plaintiff-Opp. Party No.1 & Opp. Party No.1 jointly contributed to the sale consideration. However, as a mark of respect the property was purchased in the name of their mother, who is Defendant No.1-Petitioner. Therefore, he has a right/share in the suit property. As the property described in Item No.2 of the plaint is concerned, the same was the exclusive property of one Rakhia Bibi, the mother of Defendant No.1-Petitioner who died leaving behind the Petitioner as her daughter & after the death of Rakhia Bibi, the Petitioner & Opp. Parties became the joint owners in respect of the property under Item No.2 of the plaint. Now it is to be examined whether the suit claiming share over the property in question by the Plaintiff-Opp. Party No.1 barred by law & as to whether the plaint discloses the cause of action.

9. It is an undisputed fact that the suit property stands exclusively recorded in the name of the present Petitioner. According to PlaintiffOpp. Party No.1, the Opp. Parties had contributed the sale consideration for purchase of the suit property & the same was purchased Benami in the name of their mother. Therefore, the case of Plaintiff-Opp. Party No.1 is that the suit land is the joint family property.

10. Law is well settled that under the Mohammedan Law, the succession opens only after death of the owner. During life time of the owner, his sons or daughters have no claim over the suit property. Rule 216(i) & (ii) of the Principles of Mohammedan Law by Dr. Nishi Purohit is quoted below:

Rule 216. Existence of right of the heirs when succession opens - (i) Succussion opens on the death of a Mohammedan.

(ii) In case of missing person, succession opens on the date on which he is presumed to be dead.

(iii) Immediately on his death, the rights of his heirs come into existence & the estate of the deceased vests in them.

The above said principles of Mohammedan Law makes it clear that during the life time of the present Petitioner, his sons i.e. Plaintiff & Defendant No. 2 & 3 have no right, title & interest over the suit schedule property.

11. Under Mohammedan Law, there is no recognition of concept of joint family property. The Madras High Court in the case of S.K.Sahul Hamid & another v. S.M.Sultan & others, AIR (34) 1947 Madras 287, has held as under:

14. There is no doubt that if the parties had been governed by the Hindu Law according to Mitakshara & had constituted a joint Hindu family, & the business that the members of the family were carrying on had been an ancestral business & the properties in suit had been acquired in the course of & from & out of the profits of the business, then the properties would become the assets of the joint family in which every member of the joint family would have a share. But it is now well established that the Mohammedan Law by which prima facie the parties in this case are governed, does not .recognize such a system of holding property & the principle on which that system is founded cannot be applied to the determination of questions relating to the tenure & devolution of property among Mohammedans. Mohammedan heirs take their shares in severity & they are deemed to be tenants in common without any right of survivorship. The Mohammedan law does not recognizes a joint family as a legal entity. In fact, according to the rules of the Mohammedan Law of succession, heirship does not necessarily go with membership of the family. There are several males & females who have no interest in the heritage but may be members of the family. On the other hand, there are several heirs like, for example, married daughters of a deceased male owner who take an interest in the estate but form no part of the family : vide 32 Mad 276 [LQ/MadHC/1908/224] & 54 All 916.

25. The Learned Judges held that for the determination of the rights of members of a Mohammedan family, any analogy drawn from the Hindu joint family system is misleading. There is a comprehensive statement of the law, at pages 930 & 931 :

It is only in a loose sense that property is said to belong to a joint Mohammedan family. The law does not recognize a Mohammedan joint family as a legal entity, & has not provided rules applicable to the family as such. The rights of its individual members both as regards the original joint property & its subsequent enlargements must be determined by an appeal to general law. In the generality of cases in which Mohammedans belonging to the same family live in comensality, own property as tenants in common carryon business jointly & make fresh acquisitions, their rights & those of their heirs can be determined with reference to express or implied agreement, relation of principal & agent, partnership, constructive trust or the like. Mere a prior conclusions based on the analogy derived from the law applicable to joint Hindu families, if they cannot be shown to be in conformity with a definite rule applicable to Mohammedans cannot be accepted.

We respectfully agree with these observations.

12. The Act, 1988 came into force in the year 1988. Sections 3 & 4 of the Act, 1988 prohibit the sale or purchase of any property held Benami & claim of any property which was purchased Benami. For ready reference, Section 4 of the Act, 1988 is extracted below:

Section 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 the suit 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.

13. In view of the above statutory provisions enshrined in Section 4 of the Act, 1988 after coming into force the Act, 1988, no suit shall lie claiming share or recovery of a property which has been purchased Benami.

14. Law is well settled that the suit or appeal filed prior to 19.05.1988 is not hit by the prohibition contained in Section 4 of the Act, 1988, but all the suits & appeals filed after 19.05.1988 are hit by the prohibition contained in Section 4 of the Act, 1988. [See R.Rajagopal Reddy v. Padmini Chandrasekharan, AIR 1996 SC 238 [LQ/SC/1995/164] , Rebti Deviv. Ram Dutt, AIR 1988 SC 310, & Smt. Miraprava Samantaray v. Pramod Kumar Samantaray alias Samal & ors, (2000 (I) OLR 16].

15. In the instant case the suit has been filed in the year 1999. Therefore, the said suit is hit by the provisions contained in Section 4 of the Act, 1988 & hence, it is barred by law.

16. So far as question No. (v) is concerned, the law is no more res integra that a point of law which goes to the root of the case can be raised at any time. Therefore, even if a point of law was not raised in the Court below that does not preclude the parties to raise the same before the Appellate Court or revision Court for the first time. (See Sk. Jamaitullah & others v. Sk. Jayakatullah & others; 1996 (I) OLR 98).

17. In view of the above settled principles of law, the Learned Civil Judge (Sr. Division), Berhampur is not justified to hold that the suit is not barred by law & the suit discloses the cause of action. Therefore, the suit filed by Plaintiff-Opp. Party No. 1 is hit by Order 7, Rule 11 (a) & (d) of CPC & the petition filed under Order 7, Rule 11, CPC deserves to be allowed. Hence, the impugned Order Dated 23.04.2011 (Annexure5) passed by the Civil Judge (Sr. Division), Berhampur is set aside.

18. In the suit, the Civil Revision petition is allowed. No order as to costs.

Petition allowed.