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2019 (4) TMI 232
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....ile owner had filed suit for possession which matter came right upto this Court; (d) There was a compromise between the erstwhile owner and the first defendant under which the premises where the shop is situate, were agreed to be sold in favour of first defendant; (e) The first defendant was not having enough money and as such it was the appellant who arranged all the money on his own after borrowing from money lenders on interest; (f) At the time of preparing the sale deed, the first defendant had indicated that the premises be taken in his name; (g) Even after purchase of the premises in the name of the first defendant, the appellant was conducting the business in the said shop; (h) The first defendant had executed a document on a stamp paper on 14.03.2002 in the presence of witnesses which was verified by Notary Public acknowledging that the appellant had paid the entire consideration towards purchase of the premises. (i) The second defendant was also a tenant in the premises and after the purchase as aforesaid he was making payment of rent to the appellant. (j) Taking undue advantage of the old age and fragile health of the first defendant, the second defendant go....
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.... the Act of 1988 and the learned trial court rightly allowed the application under Order 7 Rule 11 CPC." 7. The decision rendered by the High Court is presently under appeal. Mr. Abhishek Gupta, learned Advocate appearing for the appellant invited our attention to the documents on record including the writing dated 14.03.2002 executed by First Defendant and father of the Appellant. The relevant portion of said document dated 14.3.2002 was as under: "I, Babu Lal Son of late Shri Tara Chand Meharishi, Caste - Brahmin, am the Resident of Near Laxminath Press, Fatehpur, District-Sikar (Raj.) In my name in Kasba Fatehpur near Saraswati Library there is shop along with rooms made over its terrace. Since this property (shop) was purchased by my elder son Pawan Kumar by the money earned with his own income, but in order to give respect to me he had got the Registry of this shop in my name. Hence, over this entire property only his right. In future neither mine nor any of my other successors shall have any right in this property. I have written my this script in my full senses, with healthy and sound mind, without under any coercion or influence in the presence of two witnesses to my....
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....the matter was dealt with by this Court as under:- "28. The critical question then is whether sub-section (3) of Section 4 saves a transaction like the one with which we are concerned. 29. Sub-section (3) to Section 4 extracted above is in two distinct parts. The first part comprises clause (a) to Section 4(3) which deals with acquisitions by and in the name of a coparcener in a Hindu Undivided Family for the benefit of such coparceners in the family. There is no dispute that the said provision has no application in the instant case nor was any reliance placed upon the same by the learned counsel for the respondent-plaintiffs. 30. What was invoked by Mr Naveen R. Nath, learned counsel appearing for the respondents was Section 4(3)(b) of the Act which too is in two parts viz. one that deals with the trustees and the beneficiaries thereof and the other that deals with the persons standing in a fiduciary capacity and those towards whom he stands in such capacity. It was argued by Mr Nath that the circumstances in which the purchase in question was made in the name of the appellant assumes great importance while determining whether the appellant in whose name the property was acq....
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...., rather than legal obligation, as the basis of the transaction. The term includes those informal relations which exist whenever one party trusts and relies upon another, as well as technical fiduciary relations." 34. Black's Law Dictionary (7th Edn., p. 640) defines "fiduciary relationship" thus: "Fiduciary relationship.-A relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship. Fiduciary relationships- such as trustee-beneficiary, guardian-ward, agent-principal, and attorney-client-require the highest duty of care. Fiduciary relationships usually arise in one of four situations: (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act for or give advice to another on matters falling within the scope of the relationship, or (4) when there is a specific relationship that has traditionally been recognised as involving fiduciary duties, as with a lawyer and a client or a stockbroker and a customer." 35. Stroud's J....
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....hing in trust for another (beneficiary). The fiduciary is expected to act in confidence and for the benefit and advantage of the beneficiary, and use good faith and fairness in dealing with the beneficiary or the things belonging to the beneficiary. If the beneficiary has entrusted anything to the fiduciary, to hold the thing in trust or to execute certain acts in regard to or with reference to the entrusted thing, the fiduciary has to act in confidence and is expected not to disclose the thing or information to any third party." 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. 38. 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....